Loan No. 050-4715-001
PROMISSORY NOTE
$10,000,000.00 December 12, 2000
FOR VALUE RECEIVED, HAEMONETICS CORPORATION, a Massachusetts business
corporation (93BORROWER94), promises to pay to the order of GENERAL
ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION ("GE CAPITAL") at GE
CAPITAL's office at 10900 NE 4th Street, Suite 500, Bellevue, Washington
98004, Attention: Real Estate Department, or at such other address as GE
CAPITAL may from time to time designate in writing, the principal sum of
TEN MILLION AND NO/100 DOLLARS ($10,000,000.00) together with interest from
the date the proceeds of the loan (the 93Loan94) evidenced by this
Promissory Note (this 93Note94) are initially disbursed until maturity on
the principal balance from time to time remaining unpaid hereon at the rate
of 8.41% per annum (computed on the basis of a 360-day year of twelve (12)
consecutive thirty (30)-day months) in installments as follows: (i)
interest only in advance at the rate of $2,336.11 per day shall be due and
payable on the date the proceeds of the Loan are initially disbursed to or
for the benefit of BORROWER (including, without limitation, disbursement
into an escrow for the benefit of BORROWER) for the period beginning on the
date of such disbursement and ending on December 3 1, 2000; (ii) one
hundred seventy-nine (179) installments of principal and interest in the
amount of $97,947. 11 each shall be payable commencing on February 1, 2001,
and continuing on the first day of each and every succeeding month until
and including December 1, 2015, and (iii) on January 1, 2015 (the "Maturity
Date"), all then unpaid principal and interest hereon shall be due and
payable.
If any periodic payment due hereunder shall not be paid when due and
shall remain unpaid for ten (10) days, BORROWER shall pay an additional
charge equal to five percent (5.00%) of the delinquent payment or the
highest additional charge permitted by law, whichever is less.
Upon not less than thirty (30) days advance written notice to GE
CAPITAL at any time after February 1,2006, and upon payment of the
Prepayment Premium, BORROWER shall have the right to prepay all, but not
less than all, of the outstanding balance of this Note on any regularly
scheduled principal and interest payment date. The Prepayment Premium shall
be determined by (i) calculating the decrease (expressed in basis points)
in the current weekly average yield of Ten (10)-year U.S. Treasury Constant
Maturities (as published in Federal Reserve Statistical Release H. 15
[5191) (the "Index") from Friday, July 7, 2000, to the Friday immediately
preceding the week in which the prepayment is made, (ii) dividing the
decrease by 100, (iii) multiplying the result by the following described
applicable premium factor (the "Premium Factor"), and (iv) multiplying the
product by the principal balance to be prepaid. If the Index is unchanged
or has increased from Friday, July 7, 2000, to the Friday immediately
preceding the prepayment date, no Prepayment Premium shall be due. The
Premium Factor shall be the amount shown on the following chart for the
month in which prepayment occurs:
Number of Months
Remaining (Years) Premium Factor
- ---------------- ------- --------------
180-169 (15) 0.073
168-157 (14) 0.069
156-145 (13) 0.064
144-133 (12) 0.059
132-121 (11) 0.054
120-109 (10) 0.049
108-97 (9) 0.044
96-85 (8) 0.039
84-73 (7) 0 035
72-61 (6) 0.030
60-49 (5) 0.025
48-37 (4) 0.020
36-25 (3) 0.015
24-13 (2) 0.010
12-1 (1) 0.005
If the Federal Reserve Board ceases to publish the Index, then the
decrease in the weekly average yield of Ten (10)-year U.S. Treasury
Constant Maturities will be determined from another source designated by GE
CAPITAL. Notwithstanding anything contained herein to the contrary,
prepayment prior to February 1, 2006 will not be permitted.
If GE CAPITAL at any time accelerates this Note after an Event of
Default (defined below), then BORROWER shall be obligated to pay the
Prepayment Premium in accordance with the foregoing schedule. The
Prepayment Premium shall not be payable with respect to condemnation awards
or insurance proceeds from fire or other casualty which GE CAPITAL applies
to prepayment, nor with respect to BORROWER92s prepayment of the Note in
full during the last three (3) months of the term of this Note unless an
Event of Default has occurred. BORROWER expressly acknowledges that the
Prepayment Premium is not a penalty but is intended solely to compensate GE
CAPITAL for the loss of its bargain and the reimbursement of internal
expenses and administrative fees and expenses incurred by GE CAPITAL.
The Loan is secured, in part, by a certain Commercial Mortgage,
Security Agreement, Assignment of Leases and Rents and Fixture Filing (the
"Mortgage") covering the real property and other assets (the "Property")
described therein, and by certain other documents executed and delivered in
connection herewith (the Mortgage and such other documents are collectively
called the "Loan Documents").
Subject to the exceptions described below, GE CAPITAL shall not seek
any deficiency judgment against BORROWER, it being understood and agreed
that BORROWER shall not have any personal liability for the payment of the
indebtedness evidenced by the Loan Documents, and such indebtedness shall
be considered limited recourse to BORROWER.
The foregoing notwithstanding, GE CAPITAL shall have full recourse
against BORROWER for the full payment of any Prepayment Premium; the full
amount of any taxes, insurance premiums or other amounts advanced by GE
CAPITAL on behalf of BORROWER pursuant to the Loan Documents; and all
reasonable attorney's fees or other out-of-pocket costs of collection
incurred by GE CAPITAL pursuant to any of the Loan Documents. In addition,
GE CAPITAL shall have full recourse against BORROWER for the full payment
of all indebtedness evidenced by the Loan Documents in the event of fraud
or intentional misrepresentation by BORROWER of any material facts under
any of the Loan Documents.
BORROWER shall also be liable for (i) the full amount of all rents,
profits, insurance proceeds, condemnation awards, security deposits or
other sums or payments received by or on behalf of BORROWER and not paid or
applied in accordance with the provisions of the Loan Documents, and (ii)
the amount of any damage, loss, cost, or expenses arising from the breach
by BORROWER of any of its obligations under any lease of the Property (or
any part thereof).
Nothing herein shall limit the liability of BORROWER under the
certificate and indemnity agreement regarding hazardous substances or
environmental indemnity agreement executed in favor of GE CAPITAL.
Each of the following shall constitute an Event of Default (93Event
of Default94) hereunder and under the Mortgage:
(a) Failure of or refusal by BORROWER to make any payment of
principal, interest, or any Prepayment Premium due under this Note
when due, and such failure or refusal shall continue for a period
often (10) days after written notice is given to BORROWER by GE
CAPITAL specifying such failure; or
(b) Failure of BORROWER within the time required by the
Mortgage to make any payment for taxes, insurance or for reserves for
such payments, or any other payment necessary to prevent the filing
of any lien, and such failure shall continue for a period of ten (10)
days after written notice is given to BORROWER by GE CAPITAL
specifying such failure; or
(c) Failure of BORROWER to observe or perform any of its
obligations under any of the lease agreements covering the Property
continuing beyond applicable grace and cure periods; or
(d) The Property or any part or interest in the Property is
transferred in any manner whatsoever without the prior written
consent of GE CAPITAL; or
(e) If any lien or encumbrance is filed against the Property
without GE CAPITAL's prior written consent and the same is not
discharged or bonded over as provided in Section 4 of the Mortgage;
or
(f) If any lease agreement covering any portion of the
Property is executed by Borrower without GE CAPITAL's prior written
consent; or
(g) Filing by BORROWER of a voluntary petition in bankruptcy
or filing by BORROWER of any petition or answer seeking or
acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, or similar relief for itself under any
present or future federal, state or other statute, law or regulation
relating to bankruptcy, insolvency or other relief for debtors, or
the seeking, consenting to, or acquiescing by BORROWER in the
appointment of any trustee, receiver, custodian, conservator or
liquidator for BORROWER, any part of the Property, or any of the
income or rents of the Property, or the making by BORROWER of any
general assignment for the benefit of creditors, or the inability of
or failure of BORROWER to pay its debts generally as they become due,
or the insolvency on a balance sheet basis or business failure of
BORROWER, or the making or suffering of a preference within the
meaning of federal bankruptcy law or the making of a fraudulent
transfer under applicable federal or state law, or concealment by
BORROWER of any of its property in fraud of creditors, or the
imposition of a lien upon any of the property of BORROWER which is
not discharged in the manner permitted by the Mortgage, or the giving
of notice by BORROWER to any governmental body of insolvency or
suspension of operations; or
(h) Filing of a petition against BORROWER seeking any
reorganization, arrangement, composition, readjustment, liquidation,
or similar relief under any present or future federal, state or other
law or regulation relating to bankruptcy, insolvency or other relief
for debts, or the appointment of any trustee, receiver, custodian,
conservator or liquidator of BORROWER, of any part of the Property or
of any of the income or rents of the Property, unless such petition
shall be dismissed within sixty (60) days after such filing, but in
any event prior to the entry of an order, judgment or decree
approving such petition; or
(i) The institution of any proceeding for the dissolution or
termination of BORROWER voluntarily, involuntarily, or by operation
of law; or
(j) A material adverse change occurs in the assets,
liabilities or net worth of BORROWER with the result that BORROWER's
ability to perform its obligations hereunder is materially impaired;
or
(k) Any warranty, representation or statement furnished to GE
CAPITAL by or on behalf of BORROWER under this Note, the Mortgage, or
any of the Loan Documents shall prove to have been false or
misleading in any material respect and, if such false or misleading
warranty, representation or statement was not intentionally false or
misleading and can be cured by BORROWER, if BORROWER fails to cure
the same to the satisfaction of GE CAPITAL within thirty (30) days
after written notice thereof is delivered to BORROWER; or
(l) Failure of BORROWER to observe or perform any other
obligation under the Mortgage or any of the Loan Documents when such
observance or performance is due, and such failure shall continue
beyond the applicable cure period set forth in the Mortgage or the
Loan Documents or, if no such cure period is provided, for a period
of thirty (30) days after written notice of such failure is delivered
to BORROWER; provided, however, that if any such failure cannot be
cured by BORROWER within thirty (30) days, BORROWER shall have an
additional period of sixty (60) days to cure such failure if BORROWER
promptly commences efforts to cure such failure and diligently
pursues such efforts to completion. No notice of default and no
opportunity to cure shall be required if during the prior twelve (12)
months GE CAPITAL has already sent a notice to BORROWER concerning
default in performance of the same obligation.
Upon the occurrence of any Event of Default, GE CAPITAL shall have
the option to declare the entire amount of principal and interest due under
this Note immediately due and payable without notice or demand, and GE
CAPITAL may exercise any of its rights under this Note, under the Mortgage
and under the Loan Documents. After acceleration or maturity, BORROWER
shall pay interest on the outstanding principal balance of this Note at the
rate of five percent (5.00%) per annum above Chase Manhattan Banks prime
interest rate in effect from time to time, or fifteen percent (15.00%) per
annum, whichever is higher, provided that such interest rate shall not
exceed the maximum interest rate permitted by law.
All payments of the principal and interest on this Note shall be made
in coin or currency of the United States of America which at the time shall
be the legal tender for the payment of public and private debts. If this
Note is placed in the hands of an attorney for collection, BORROWER agrees
to pay reasonable attorneys' fees and out-of-pocket costs incurred by GE
CAPITAL in connection therewith, and in the event suit or action is
instituted to enforce or interpret this Note (including without limitation
efforts to modify or vacate any automatic stay or injunction), the
prevailing party shall be entitled to recover all out-of-pocket expenses
reasonably incurred at, before or after trial and on appeal, whether or not
taxable as costs, or in any bankruptcy proceeding, or in connection with
post-judgment collection efforts, including, without limitation, attorneys'
fees, witness fees (expert and otherwise), deposition costs, copying
charges and other expenses.
This Note shall be governed and construed in accordance with the laws
of the Commonwealth of Massachusetts applicable to contracts made and to be
performed therein (excluding choice-of-law principles). BORROWER hereby
irrevocably submits to the jurisdiction of any state or federal court
sitting in Massachusetts in any action or proceeding brought to enforce or
otherwise arising out of or relating to this Note, and hereby waives any
objection to venue in any such court and any claim that such forum is an
inconvenient forum.
This Note may be declared due prior to the Maturity Date, all in the
events, on the terms, and in the manner provided for in the Mortgage.
BORROWER and all sureties, endorsers, guarantors and other parties
now or hereafter liable for the payment of this Note, in whole or in part,
hereby severally (i) waive demand, notice of demand, presentment for
payment, notice of nonpayment, notice of default (except as expressly
provided herein), protest, notice of protest, notice of intent to
accelerate, notice of acceleration and all other notices, and further waive
diligence in collecting this Note or in enforcing any of the security for
this Note; (ii) agree to any substitution, subordination, exchange or
release of any security for this Note or the release of any party primarily
or secondarily liable for the payment of this Note; (iii) agree that GE
CAPITAL shall not be required to first institute suit or exhaust its
remedies hereon against BORROWER or others liable or to become liable for
the payment of this Note or to enforce its rights against any security for
the payment of this Note; and (iv) consent to any extension of time for the
payment of this Note, or any installment hereof, made by agreement by GE
CAPITAL with any person now or hereafter liable for the payment of this
Note, even if BORROWER is not a party to such agreement.
BORROWER authorizes GE CAPITAL or its agent to insert in the spaces
provided herein the appropriate interest rate and the payment amounts as of
the date of the initial advance under this Note.
All agreements between BORROWER and GE CAPITAL, whether now existing
or hereafter arising and whether written or oral, are hereby limited so
that in no contingency, whether by reason of demand or acceleration of the
final maturity of this Note or otherwise, shall the interest contracted
for, charged, received, paid or agreed to be paid to GE CAPITAL exceed the
maximum amount permissible under the applicable law. If, from any
circumstance whatsoever, interest would otherwise be payable to GE CAPITAL
in excess of the maximum amount permissible under applicable law, the
interest payable to GE CAPITAL shall be reduced to the maximum amount
permissible under applicable law; and if from any circumstance GE CAPITAL
shall ever receive anything of value deemed interest by applicable law in
excess of the maximum amount permissible under applicable law, an amount
equal to the excessive interest shall be applied to the outstanding
principal balance hereof, or if such excessive amount of interest exceeds
the unpaid balance of principal hereof, such excess shall be refunded to
BORROWER. All interest paid or agreed to be paid to GE CAPITAL shall, to
the extent permitted by applicable law, be amortized, prorated, allocated,
and spread throughout the full period (including any renewal or extension)
until payment in full of the principal so that the interest hereon for such
full period shall not exceed the maximum amount permissible under
applicable law. GE CAPITAL expressly disavows any intent to contract for,
charge or receive interest in an amount which exceeds the maximum amount
permissible under applicable law. This paragraph shall control all
agreements between BORROWER and GE CAPITAL.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER
TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACTMAY BE LEGALLY
ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER
WRITTEN AGREEMENT.
IN WITNESS WHEREOF, BORROWER has caused this Note to be executed as
of the year and day first written above.
BORROWER:
HAEMONETICS CORPORATION,
a Massachusetts business corporation
By:
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Print:
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Its:
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Prepared by, recording requested
by, and after recording return to:
George C. Dunlap, Jr.
Jenkens & Gilchrist
1445 Ross Avenue, Suite 3200
Dallas, Texas 75202-2 799
Loan No. 050-4715-001
COMMERCIAL MORTGAGE,
SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS,
AND FIXTURE FILING
THIS MORTGAGE (herein "Instrument') is made as of December 12, 2000,
by HAEMONETICS CORPORATION, a Massachusetts business corporation, whose
address is 400 Wood Road. Braintree, Massachusetts 02184 (herein
"Mortgagor"), in favor of the Mortgagee, GENERAL ELECTRIC CAPITAL BUSINESS
ASSET FUNDING CORPORATION, a Delaware corporation, whose address is Real
Estate Department, 10900 N E 4th Street, Suite 500, Bellevue, Washington,
98004 (herein "Mortgagee").
W I T N E S S E T H:
THAT, WHEREAS, Mortgagor is justly indebted to Mortgagee in the sum
of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00), as evidenced by a
certain Promissory Note (as hereinafter described),
NOW, THEREFORE, Mortgagor, in consideration of the indebtedness
herein recited and the trust herein created, irrevocably gives, grants,
conveys, bargains, sells and assigns to Mortgagee, its successors and
assigns, WITH MORTGAGE COVENANTS, UPON THE STATUTORY CONDITION AND WITH THE
STATUTORY POWER OF SALE, all of Mortgagor's estate, right, title and
interest, now owned or hereafter acquired, including any reversion or
remainder interest, in the real property located in Norfolk County,
Massachusetts described on Exhibit A attached hereto and incorporated
herein including all Heretofore or hereafter vacated alleys and streets
abutting the property, and all easements, rights, appurtenances, tenements,
hereditaments, rents, royalties, mineral, oil and gas rights and profits,
water, water rights, and water stock appurtenant to the property
(collectively, the "Premises");
TOGETHER with all of Mortgagor's estate, right, title and interest,
now owned or hereafter acquired, in:
(a) all buildings, structures, improvements, parking areas,
landscaping, equipment, fixtures and articles of property now or
hereafter erected on, attached to, or used or adapted for use in the
operation of the Premises; including but without being limited to,
all heating, air conditioning and incinerating apparatus and
equipment, all boilers, engines, motors, dynamos, generating
equipment, piping and plumbing fixtures, water heaters, ranges,
cooking apparatus and mechanical kitchen equipment, refrigerators,
freezers, cooling, ventilating, sprinkling and vacuum cleaning
systems, fire extinguishing apparatus, gas and electric fixtures,
carpeting, floor coverings, underpadding, elevators, escalators,
partitions, mantels, built-in mirrors, window shades, blinds,
draperies, screens, storm sash, awnings, signs, furnishings of public
spaces, halls and lobbies, and shrubbery and plants, and including
also all interest of any owner of the Premises in any of such items
hereafter at any time acquired under conditional sale contract,
chattel mortgage or other title retaining or security instrument, all
of which property mentioned in this clause (a) shall be deemed part
of the realty covered by this Instrument and not severable wholly or
in part without material injury to the freehold of the Premises (all
of the foregoing together with replacements and additions thereto are
referred to herein as "Improvements"); and
(b) all compensation, awards, damages, rights of action and
proceeds, including interest thereon and/or the proceeds of any
policies of insurance therefor, arising out of or relating to a (i)
taking or damaging of the Premises or Improvements thereon by reason
of any public or private improvement, condemnation proceeding
(including change of grade), sale or transfer in lieu of
condemnation, or fire, earthquake or other casualty, or (ii) any
injury to or decrease in the value of the Premises or the
Improvements for any reason whatsoever;
(c) return premiums or other payments upon any insurance any
time provided for the benefit of or naming Mortgagee, and refunds or
rebates of taxes or assessments on the Premises;
(d) all the right, title and interest of Mortgagor in, to and
under all written and oral leases and rental agreements (including
extensions, renewals and subleases; all of the foregoing shall be
referred to collectively herein as the "Leases") now or hereafter
affecting the Premises including, without limitation, all rents,
issues, profits and other revenues and income therefrom and from the
renting, leasing or bailment of Improvements and equipment, all
guaranties of tenants' performance under the Leases, and all rights
and claims of any kind that Mortgagor may have against any tenant
under the Leases or in connection with the termination or rejection
of the Leases in a bankruptcy or insolvency proceeding; and the
leasehold estate in the event this Instrument is on a leasehold;
(e) plans, specifications, contracts and agreements relating
to the design or construction of the Improvements; Mortgagor's rights
under any payment, performance, or other bond in connection with the
design or construction of the Improvements; all landscaping and
construction materials, supplies, and equipment used or to be used or
consumed in connection with construction of the Improvements, whether
stored on the Premises or at some other location; and contracts,
agreements, and purchase orders with contractors, subcontractors,
suppliers, and materialmen incidental to the design or construction
of the Improvements;
(f) all contracts, accounts, rights, claims or causes of
action pertaining to or affecting the Premises or the Improvements,
including, without limitation, all options or contracts to acquire
other property for use in connection with operation or development of
the Premises or Improvements, management contracts, service or supply
contracts, deposits, bank accounts, general intangibles (including
without limitation trademarks, trade names and symbols), permits,
licenses, franchises and certificates, and all commitments or
agreements, now or hereafter in existence, intended by the obligor
thereof to provide Mortgagor with proceeds to satisfy the loan
evidenced hereby or improve the Premises or Improvements, and the
right to receive all proceeds due under such commitments or
agreements including refundable deposits and fees;
(g) all books, records, surveys, reports and other documents
related to the Premises, the Improvements, the Leases, or other items
of collateral described herein; and
(h) all additions, accessions, replacements, substitutions,
proceeds and products of the real and personal property, tangible and
intangible, described herein.
All of the foregoing described collateral is exclusive of any
furniture, furnishings or trade fixtures owned and supplied by tenants of
the Premises. The Premises, the Improvements, the Leases and all of the
rest of the foregoing property are herein referred to as the "Property."
THIS MORTGAGE IS MADE UPON THE STATUTORY CONDITIONS, FOR ANY EACH OF
WHICH MORTGAGEE SHALL HAVE THE STATUTORY POWER OF SALE.
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof to the use, benefit and behoof of Mortgagee and its
successors and assigns in fee simple forever.
TO SECURE TO Mortgagee (a) the repayment of the indebtedness
evidenced by Mortgagor 's note dated of even date herewith in the principal
sum of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00), with interest
thereon as set forth in the note, and all renewals, extensions and
modifications thereof (herein the "Note"), and with a final maturity date
of January 1, 2016; (b) the repayment of any future advances, with interest
thereon, made by Mortgagee to Mortgagor pursuant to Section 30 hereof
(herein "Future Advances"); (c) the payment of all other sums, with
interest thereon, advanced in accordance herewith to protect the security
of this Instrument or to fulfill any of Mortgagor's obligations hereunder
or under the other Loan Documents (as defined below); (d) the performance
of the covenants and agreements of Mortgagor contained herein or in the
other Loan Documents; and (e) the repayment of all sums now or hereafter
owing to Mortgagee by Mortgagor pursuant to any instrument which recites
that it is secured hereby. The indebtedness and obligations described in
clauses (a)-(e) above are collectively referred to herein as the
"Indebtedness." The Note, this Instrument, and all other documents
evidencing, securing or guarantying the Indebtedness (except any-
Certificate and Indemnity Agreement Regarding Hazardous Substances), as the
same may be modified or amended from time to time, are referred to herein
as the "Loan Documents." The terms of the Note secured hereby may provide
that the interest rate or payment terms or balance due may be indexed,
adjusted, renewed, or renegotiated from time to time, and this Instrument
shall continue to secure the Note notwithstanding any such indexing,
adjustment, renewal or renegotiation.
PROVIDED, ALWAYS, that if Mortgagor shall pay unto Mortgagee the
Indebtedness and if Mortgagor shall duly, promptly and fully perform,
discharge, execute, effect, complete and comply with and abide by each and
every of the stipulations, agreements, conditions and covenants of the Note
and this Instrument, then this Instrument and all assignments contained
herein and liens created hereby shall cease and be null and void; otherwise
to remain in full force and effect.
Mortgagor represents and warrants that Mortgagor has good, marketable
and insurable title to, and has the right to grant, convey and assign an
indefeasible fee simple estate in, the Premises, Improvements, rents and
leases (or, if this Instrument is on a leasehold, good, marketable and
insurable title to, and the right to convey the leasehold estate and that
the ground lease is in full force and effect without modification except as
noted above and without default on the part of either lessor or lessee
thereunder), that the Property is unencumbered except as disclosed in
writing to and approved by Mortgagee prior to the date hereof, and that
Mortgagor will warrant and forever defend unto Mortgagee the title to the
Property against all claims and demands, subject only to the permitted
exceptions set forth in Exhibit B attached hereto.
This conveyance is intended to constitute a security agreement as
required under the Uniform Commercial Code as enacted in the Commonwealth
of Massachusetts. Debtor's and Secured Party's address and the location of
the collateral are set forth on page one (1) hereof.
Mortgagor represents, warrants, covenants and agrees for the benefit
of Mortgagee as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST Mortgagor shall promptly
pay when due the principal of and interest on the Indebtedness, any
prepayment and other charges provided in the Loan Documents and all
other sums secured by this Instrument.
2. FUNDS FOR TAXES. INSURANCE AND OTHER CHARGES. At
Mortgagee's sole option at any time after the occurrence of an Event
of Default (hereinafter defined) Mortgagor shall pay in addition to
each monthly payment on the Note, one-twelfth of the annual real
estate taxes, insurance premiums, assessments, water and sewer rates,
ground rents and other charges (herein "Impositions") payable with
respect to the Property (as reasonably estimated by Mortgagee in its
sole discretion), to be held by Mortgagee without interest to
Mortgagor, for the payment of such obligations.
If the amount of such additional payments held by Mortgagee ("Funds")
at the time of the annual accounting thereof shall exceed the amount deemed
necessary by Mortgagee to provide for the payment of Impositions as they
fall due, such excess shall be at Mortgagor's option, either repaid to
Mortgagor or credited to Mortgagor on the next monthly installment or
installments of Funds due. If at any time the amount of the Funds held by
Mortgagee shall be less than the amount deemed necessary by Mortgagee to
pay Impositions as they fall due, Mortgagor shall pay to Mortgagee any
amount necessary to make up the deficiency within thirty (30) days after
notice from Mortgagee to Mortgagor requesting payment thereof.
Upon Mortgagor's breach of any covenant or agreement of Mortgagor in
this Instrument, Mortgagee may apply, in any amount and in any order as
Mortgagee shall determine in Mortgagee's sole discretion, any Funds held by
Mortgagee at the time of application (i) to pay Impositions which are now
or will hereafter become due, or (ii) as a credit against sums secured by
this Instrument. Upon payment in frill of all sums secured by this
Instrument, Mortgagee shall refund to Mortgagor any Funds held by
Mortgagee.
3. APPLICATION OF PAYMENTS. Unless applicable law provides
otherwise, each complete installment payment received by Mortgagee
from Mortgagor under the Note or this Instrument shall be applied by
Mortgagee first in payment of amounts payable to Mortgagee by
Mortgagor under Section 2 hereof, then to interest payable on the
Note, then to principal of the Note, and then to interest and
principal on any Future Advances in such order as Mortgagee, at
Mortgagee's sole discretion, shall determine. Upon Mortgagor's breach
of any covenant or agreement of Mortgagor in this Instrument,
Mortgagee may apply, in any amount and in any order as Mortgagee
shall determine in Mortgagee's sole discretion, any payments received
by Mortgagee under the Note or this Instrument. Any partial payment
received by Mortgagee shall, at Mortgagee's option, be held in a non-
interest bearing account until Mortgagee receives funds sufficient to
equal a complete installment payment.
4. CHARGES. LIENS. Mortgagor shall pay all Impositions
attributable to the Property in the manner provided under Section 2
hereof or, if not paid in such manner, by Mortgagor making payment,
when due, directly to the payee thereof, or in such other manner as
Mortgagee may designate in writing. If requested by Mortgagee,
Mortgagor shall promptly furnish to Mortgagee all notices of
Impositions which become due, and in the event Mortgagor shall make
payment directly, Mortgagor shall promptly furnish to Mortgagee
receipts evidencing such payments. Mortgagor shall promptly discharge
any lien which has, or may have, priority over or equality with, the
lien of this Instrument. Without Mortgagee's prior written
permission, Mortgagor shall not allow any lien inferior to this
Instrument to be perfected against the Property. If any lien inferior
to this Instrument is filed against the Property without Mortgagee's
prior written permission and without the consent of Mortgagor,
Mortgagor shall, within sixty (60) days after receiving notice of the
filing of such lien, either (a) cause such lien to be released of
record and deliver evidence of such release to Mortgagee or (b)
deliver to Mortgagee a bond in form, in an amount and issued by a
surety acceptable to Mortgagee, and which bond operates to release
the Property from the claim evidenced by such lien.
5. INSURANCE. Mortgagor shall obtain and maintain the
following types of insurance upon and relating to the Property:
(a) "All Risk" property and fire insurance (with
extended coverage endorsement including malicious mischief and
vandalism) in an amount not less than the full replacement
value of the Property (with a deductible not to exceed $50,000
and with co-insurance limited to a maximum of 10% of the amount
of the policy), naming Mortgagee under a lender's loss payee
endorsement (form 438BFU or equivalent) and including agreed
amount, inflation guard, replacement cost and waiver of
subrogation endorsements;
(b) Comprehensive general liability insurance in an
amount not less than $2,000,000.00 insuring against personal
injury, death and property damage and naming Mortgagee as
additional insured;
(c) Business interruption insurance covering loss of
rental or other income (including all expenses payable by
tenants) for up to twelve (12) months; and
(d) Such other types of insurance or endorsements to
existing insurance as may be reasonably required from time to
time by Mortgagee.
Upon each reasonable request of Mortgagee, Mortgagor shall increase
the coverages under any of the insurance policies required to be maintained
hereunder or otherwise modify such policies in accordance with Mortgagee's
request. All of the insurance policies required hereunder shall be issued
by corporate insurers licensed to do business in the state in which the
Property is located and rated A:X or better by AM. Best Company, and shall
be in form acceptable to Mortgagee. If and to the extent that the Property
is located within an area that has been or is hereafter designated or
identified as an area having special flood hazards by the Department of
Housing and Urban Development or such other official as shall from time to
time be authorized by federal or state law to make such designation
pursuant to any national or state program of flood insurance, Mortgagor
shall carry flood insurance with respect to the Property in amounts not
less than the maximum limit of coverage then available with respect to the
Property or the amount of the Indebtedness, whichever is less. Certificates
of all insurance required to be maintained hereunder shall be delivered to
Mortgagee, along with evidence of payment in full of all premiums required
thereunder, contemporaneously with Mortgagor's execution of this
Instrument. All such certificates shall be in form acceptable to Mortgagee
and shall require the insurance company to give to Mortgagee at least
thirty (30) days' prior written notice before canceling the policy for any
reason or materially amending it. Certificates evidencing all renewal and
substitute policies of insurance shall be delivered to Mortgagee, along
with evidence of the payment in full of all premiums required thereunder,
at least fifteen (15) days before termination of the policies being renewed
or substituted. If any loss shall occur at any time after an Event of
Default occurs hereunder, Mortgagee shall be entitled to the benefit of all
insurance policies held or maintained by Mortgagor, to the same extent as
if same had been made payable to Mortgagee, and upon foreclosure hereunder,
Mortgagee shall become the owner thereof Mortgagee shall have the right,
but not the obligation, to make premium payments, at Mortgagor's expense,
to prevent any cancellation, endorsement, alteration or reissuance of any
policy of insurance maintained by Mortgagor, and such payments shall be
accepted by the insurer to prevent same.
If any act or occurrence of any kind or nature (including any
casualty for which insurance was not obtained or obtainable) shall result
in damage to or destruction of the Property (such event being called a
"Loss"), Mortgagor will give prompt written notice thereof to Mortgagee.
All insurance proceeds paid or payable in connection with any Loss shall be
paid to Mortgagee. If(i) no Event of Default has occurred and is continuing
hereunder, (ii) Mortgagor provides evidence satisfactory to Mortgagee of
its ability to pay all amounts becoming due under the Note during the
pendency of any restoration or repairs to or replacement of the Property,
(iii) the available insurance proceeds are, in Mortgagee's reasonable
judgment, sufficient to fully and completely restore, repair or replace the
Property and (iv) Mortgagor provides evidence satisfactory to Mortgagee
that none of the tenants of the Property will terminate their lease
agreements as a result of either the Loss or the repairs to or replacement
of the Property, Mortgagor shall have the right to apply all insurance
proceeds received in connection with such Loss either (a) to restore,
repair, replace and rebuild the Property as nearly as possible to its
value, condition and character immediately prior to such Loss, or (b) to
the payment of the Indebtedness in such order as Mortgagee may elect. If an
Event of Default has occurred and is continuing hereunder at the time of
such Loss, if Mortgagee determines that Mortgagor will be unable to pay all
amounts becoming due under the Note during the pendency of any restoration
or repairs to or replacement of the Property, if the available insurance
proceeds are insufficient, in Mortgagee's reasonable judgment, to fully and
completely restore, repair or replace the Property or if Mortgagee
reasonably believes that one or more tenants of the Property will terminate
their lease agreements as a result of either the Loss or the repairs to or
replacement of the Property, then all of the insurance proceeds payable
with respect to such Loss will be applied to the payment of the
Indebtedness, or if so instructed by Mortgagee, Mortgagor will promptly, at
Mortgagor's sole cost and expense and regardless of whether sufficient
insurance proceeds shall be available, commence to restore, repair, replace
and rebuild the Property as nearly as possible to its value, condition,
character immediately prior to such Loss. Mortgagor shall diligently
prosecute any restoration, repairs or replacement of the Property
undertaken by or on behalf of Mortgagor pursuant to this Section 5. All
such work shall be conducted pursuant to written contracts reasonably
approved by Mortgagee in writing. Notwithstanding anything contained herein
to the contrary, in the event the insurance proceeds received by Mortgagee
following any Loss are insufficient in Mortgagee's reasonable judgment to
fully and completely restore, repair or replace the Property, and if
Mortgagor has complied with all of the other conditions described in this
Section 5, Mortgagor may elect to restore, repair or replace the Property
if it first deposits with Mortgagee such additional sums as Mortgagee
determines are necessary in order to fully and completely restore, repair
or replace the Property. In the event any insurance proceeds remain
following the restoration, repair or replacement of the Property, such
proceeds shall be applied to the Indebtedness in such order as Mortgagee
may elect and any remaining balance shall be paid to Mortgagor.
6. PRESERVATION AND MAINTENANCE OF PROPERTY; LEASEHOLDS.
Mortgagor (a) shall not commit waste or permit impairment or
deterioration of the Property, (b) shall not abandon the Property,
(c) shall restore or repair promptly and in a good and workmanlike
manner all or any part of the Property to the equivalent of its
original condition, or such other condition as Mortgagee may approve
in writing, in the event of any damage, injury or loss thereto,
whether or not insurance proceeds are available to cover in whole or
in part the costs of such restoration or repair (subject to Mortgagee
making any insurance proceeds payable as a result of such damage,
injury or loss available for such restoration or repair), (d) shall
keep the Property, including all improvements, fixtures, equipment,
machinery and appliances thereon, in good repair and shall replace
fixtures, equipment, machinery and appliances on the Property when
necessary to keep such items in good repair, (e) shall comply with
all laws, ordinances, regulations and requirements of any
governmental body applicable to the Property, (f) if all or part of
the Property is for rent or lease, then Mortgagee, at its option
after the occurrence of an Event of Default, may require Mortgagor to
provide for professional management of the Property by a property
manager satisfactory to Mortgagee pursuant to a contract approved by
Mortgagee in writing, unless such requirement shall be waived by
Mortgagee in writing, and (g) shall give notice in writing to
Mortgagee of and, unless otherwise directed in writing by Mortgagee,
appear in and defend any action or proceeding purporting to affect
the Property, the security of this Instrument or the rights or powers
of Mortgagee hereunder. Neither Mortgagor nor any tenant or other
person, without the written approval of Mortgagee, shall remove,
demolish or alter any improvement now existing or hereafter erected
on the Property or any fixture, equipment, machinery or appliance in
or on the Property except when incident to the replacement of
fixtures, equipment, machinery and appliances with items of like
kind.
Mortgagor represents, warrants and covenants that the Property is and
shall be in compliance with the Americans with Disabilities Act of 1990 and
all of the regulations promulgated thereunder, as the same may be amended
from time to time.
7. USE OF PROPERTY. Unless required by applicable law or
unless Mortgagee has otherwise agreed in writing, Mortgagor shall not
allow changes in the use for which all or any part of the Property
was intended at the time this Instrument was executed. Mortgagor
shall not, without Mortgagee's prior written consent, (i) initiate or
acquiesce in a change in the zoning classification (including any
variance under any existing zoning ordinance applicable to the
Property), (ii) permit the use of the Property to become a non-
conforming use under applicable zoning ordinances, (iii) file any
subdivision or parcel map affecting the Property, or (iv) amend,
modify or consent to any easement or covenants, conditions and
restrictions pertaining to the Property.
8. PROTECTION OF MORTGAGEE'S SECURITY. If Mortgagor fails to
perform any of the covenants and agreements contained in this
Instrument, or if any action or proceeding is commenced which affects
the Property or title thereto or the interest of Mortgagee therein,
including, but not limited to, eminent domain, insolvency, code
enforcement, or arrangements or proceedings involving a bankrupt or
decedent, then Mortgagee at Mortgagee's option may make such
appearances, disburse such sums and take such action as Mortgagee
deems necessary, in its sole discretion, to protect Mortgagee's
interest, including, but not limited to, (i) disbursement of
attorneys' fees, (ii) entry upon the Property to make repairs, (iii)
procurement of satisfactory insurance as provided in Section 5
hereof, and (iv) if this Instrument is on a leasehold, exercise of
any option to renew or extend the ground lease on behalf of Mortgagor
and the curing of any default of Mortgagor in the terms and
conditions of the ground lease.
Any amounts disbursed by Mortgagee pursuant to this Section 8, with
interest thereon, shall become additional Indebtedness of Mortgagor secured
by this Instrument. Unless Mortgagor and Mortgagee agree to other terms of
payment, such amounts shall be immediately due and payable and shall bear
interest from the date of disbursement at the highest rate which may be
collected from Mortgagor under applicable law or, at Mortgagee's option,
the rate stated in the Note. Mortgagor hereby covenants and agrees that
Mortgagee shall be subrogated to the lien of any mortgage or other lien
discharged, in whole or in part, by the Indebtedness. Nothing contained in
this Section 8 shall require Mortgagee to incur any expense or take any
action hereunder.
9. INSPECTION. Mortgagee may make or cause to be made
reasonable entries upon the Property to inspect the interior and
exterior thereof at all reasonable times.
10. FINANCIAL DATA. Mortgagor will furnish to Mortgagee within
ninety (90) days after the close of each calendar year, (i) a balance
sheet and a profit and loss statement for the immediately preceding
calendar year prepared in accordance with generally accepted
accounting principles and practices consistently applied and, if
Mortgagee so requires after the occurrence of an Event of Default,
accompanied by the annual audit report of an independent certified
public accountant reasonably acceptable to Mortgagee, (ii) an
operating statement for the immediately preceding calendar year
together with a complete rent roll and other supporting data
reflecting all material information with respect to the operation of
the Property and Improvements during the period covered thereby, and
(iii) all other financial information and reports that Mortgagee
may from time to time reasonably request, including, if Mortgagee
so requires, income tax returns of Mortgagor and financial statements
of any tenant of the Property designated by Mortgagee.
11. CONDEMNATION. If the Property, or any part thereof, shall
be condemned for any reason, including, without limitation, fire or
earthquake damage, or otherwise taken for public or quasi-public use
under the power of eminent domain, or be transferred in lieu thereof,
all damages or other amounts awarded for the taking of, or injury to,
the Property shall be paid to Mortgagee, and Mortgagee shall have the
right, in its sole and absolute discretion, to apply the amounts so
received against (a) the costs and expenses of Mortgagee or Trustee,
including reasonable attorneys fees incurred in connection with
collection of such amounts, and (b) the balance against the
Indebtedness; provided, however, that if(i) no Event of Default shall
have occurred and be continuing hereunder, (ii) Mortgagor provides
evidence satisfactory to Mortgagee of its ability to pay all amounts
becoming due under the Note during the pendency of any restoration or
repairs to or replacement of the Property, (iii) Mortgagee
determines, in its sole discretion, that the proceeds of such award
are sufficient to restore, repair, replace and rebuild the Property
as nearly as possible to its value, condition and character
immediately prior to such taking (or, if the proceeds of such award
are insufficient for such purpose, if Mortgagor provides additional
sums to Mortgagee's satisfaction so that the aggregate of such sums
and the proceeds of such award will be sufficient for such purpose),
and (iv) Mortgagor provides evidence satisfactory to Mortgagee that,
as a result of either the condemnation or taking or the repairs to or
replacement of the Property, none of the tenants of the Property will
terminate their lease agreements, then the proceeds of such award,
together with additional sums provided by Mortgagor, shall be placed
in a separate account for the benefit of Mortgagee and Mortgagor to
be used to restore, repair, replace and rebuild the Property as
nearly as possible to its value, condition and character immediately
prior to such taking. All work to be performed in connection
therewith shall be pursuant to a written contract therefor, which
contract shall be subject to the prior approval of Mortgagee. To the
extent that any funds remain after the Property has been so restored
and repaired, the same shall be applied against the Indebtedness in
such order as Mortgagee may elect. To enforce its rights hereunder,
Mortgagee shall be entitled to participate in and control any
condemnation proceedings and to be represented therein by counsel of
its own choice, and Mortgagor will deliver, or cause to be delivered
to Mortgagee such instruments as may be requested by Mortgagee from
time to time to permit such participation. In the event Mortgagee, as
a result of any such judgment, decree or award, believes that the
payment or performance of any of the Indebtedness is or shall be
impaired, Mortgagee may declare all of the Indebtedness immediately
due and payable.
12. MORTGAGOR AND LIEN NOT RELEASED. From time to time,
Mortgagee may, at Mortgagee's option, without giving notice to or
obtaining the consent of Mortgagor, Mortgagor's successors or assigns
or of any junior lienholder, without liability on Mortgagee's part
and notwithstanding Mortgagor's breach of any covenant or agreement
of Mortgagor in this Instrument, extend the time for payment of the
Indebtedness or any part thereof, reduce the payments thereon,
release anyone liable on any of the Indebtedness, accept an extension
or modification or renewal note or notes therefor, modify the terms
and time of payment of the Indebtedness, release from the lien of
this Instrument any part of the Property, take or release other or
additional security, reconvey any part of the Property, consent to
any map or plan of the Property, consent to the granting of any
easement, join in any extension or subordination agreement, and agree
in writing with Mortgagor to modify the rate of interest or period of
amortization of the Note or decrease the amount of the monthly
installments payable thereunder. Any actions taken by Mortgagee
pursuant to the terms of this Section 12 shall not affect the
obligation of Mortgagor or Mortgagor's successors or assigns to pay
the sums secured by this Instrument and to observe the covenants of
Mortgagor contained herein and shall not affect the lien or priority
of the lien hereof on the Property. Mortgagor shall pay Mortgagee a
service charge, together with such title insurance premiums and
attorneys' fees as may be incurred at Mortgagee's option, for any
such action if taken at Mortgagor's request.
13. FORBEARANCE BY MORTGAGEE NOT A WAIVER. Any forbearance by
Mortgagee 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 other right or remedy. The acceptance by Mortgagee of
payment of any sum secured by this Instrument after the due date of
such payment shall not be a waiver of Mortgagee's right to either
require prompt payment when due of all other sums so secured or to
declare a default for failure to make prompt payment. The procurement
of insurance or the payment of taxes or other liens or charges by
Mortgagee shall not be a waiver of Mortgagee's right to accelerate
the maturity of the Indebtedness secured by this Instrument, nor
shall Mortgagee's receipt of any awards, proceeds or damages under
Sections 5 and 11 hereof operate to cure or waive Mortgagor's default
in payment of sums secured by this Instrument.
14. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. This
Instrument is intended to be a security agreement pursuant to the
Uniform Commercial Code for any of the items specified above as part
of the Property which, under applicable law, may be subject to a
security interest pursuant to the Uniform Commercial Code, and
Mortgagor hereby grants and conveys to Mortgagee a first and prior
security interest in all of the Property that constitutes personalty,
whether now owned or hereafter acquired. Mortgagor agrees that
Mortgagee may file this Instrument, or a reproduction thereof, in the
real estate records or other appropriate index, as a financing
statement for any of the items specified above as part of the
Property. Any reproduction of this Instrument or of any other
security agreement or financing statement shall be sufficient as a
financing statement. In addition, Mortgagor agrees to execute and
deliver to Mortgagee, upon Mortgagee's request, any financing
statements, as well as extensions, renewals and amendments thereof,
and reproductions of this Instrument in such form as Mortgagee may
require to perfect a security interest with respect to the foregoing
items. Mortgagor shall pay all costs of filing such financing
statements and any extensions, renewals, amendments and releases
thereof, and shall pay all costs and expenses of any record searches
for financing statements Mortgagee may require. Without the prior
written consent of Mortgagee, Mortgagor shall not create or suffer to
be created pursuant to the Uniform Commercial Code any other security
interest in said items, including replacements and additions thereto.
Upon Mortgagor's breach of any covenant or agreement of Mortgagor
contained in this Instrument, including the covenants to pay when due
all sums secured by this Instrument, Mortgagee shall have the
remedies of a secured party under the Uniform Commercial Code, and
Mortgagee may also invoke the remedies provided in Section 26 of this
Instrument as to such items. In exercising any of said remedies
Mortgagee may proceed against the items of real property and any
items of personal property specified above separately or together and
in any order whatsoever, without in any way affecting the
availability of Mortgagee's remedies under the Uniform Commercial
Code or of the remedies provided in Section 26 of this Instrument.
Within ten (10) days following any request therefor by Mortgagee,
Mortgagor shall prepare and deliver to Mortgagee a written inventory
specifically listing all of the personal property covered by the
security interest herein granted, which inventory shall be certified
by Mortgagor as being true, correct, and complete.
15. LEASES OF THE PROPERTY. As used in this Section 15, the
word "Lease" shall include subleases if this Instrument is on a
leasehold and shall also include the lease. Mortgagor shall comply
with and observe Mortgagor's obligations as landlord under all Leases
of the Property or any part thereof All Leases now or hereafter
entered into will be in form and substance subject to the approval of
Mortgagee. All Leases of the Property shall specifically provide that
such Leases are subordinate to this Instrument; that the tenant
attorns to Mortgagee, such attornment to be effective upon
Mortgagee's acquisition of title to the Property; that the tenant
agrees to execute such further evidences of attornment as Mortgagee
may from time to time request; that the attornment of the tenant
shall not be terminated by foreclosure; and that Mortgagee may, at
Mortgagee's option, accept or reject such attornments. Mortgagor
shall not, without Mortgagee's written consent, request or consent to
the subordination of any Lease of all or any part of the Property to
any lien subordinate to this Instrument. If Mortgagor becomes aware
that any tenant proposes to do, or is doing, any act or thing which
may give rise to any right of set-off against rent, Mortgagor shall
(i) take such steps as shall be reasonably calculated to prevent the
accrual of any right to a set-off against rent, (ii) immediately
notify Mortgagee thereof in writing and of the amount of said set-
offs, and (iii) within ten (10) days after such accrual, reimburse
the tenant who shall have acquired such right to set-off or take such
other steps as shall effectively discharge such setoff and as shall
assure that rents thereafter due shall continue to be payable without
set-off or deduction. Upon Mortgagee's receipt of notice of the
occurrence of any default or violation by Mortgagor of any of its
obligations under the Leases, Mortgagee shall have the immediate
right, but not the duty or obligation, without prior written notice
to Mortgagor or to any third party, to enter upon the Property and to
take such actions as Mortgagee may deem necessary to cure the default
or violation by Mortgagor under the Leases. The reasonable, out-of-
pocket costs incurred by Mortgagee in taking any such actions
pursuant to this paragraph shall become part of the Indebtedness,
shall bear interest at the rate provided in the Note, and shall be
payable by Mortgagor to Mortgagee on demand Mortgagee shall have no
liability to Mortgagor or to any third party for any actions taken by
Mortgagee or not taken pursuant to this paragraph.
16. REMEDIES CUMULATIVE. Each remedy provided in this
Instrument is distinct and cumulative to all other rights or remedies
under this Instrument or afforded by law or equity, and may be
exercised concurrently, independently, or successively, in any order
whatsoever.
17. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN
MORTGAGOR; ASSUMPTION. Mortgagee may, at its option, declare all sums
secured by this Instrument to be immediately due and payable, and
Mortgagee may invoke any remedies permitted by Section 26 of this
Instrument, if title to the Property is changed without the prior
written consent of Mortgagee, which consent shall be at Mortgagee's
sole discretion. Any transfer of any interest in the Property or in
the income therefrom, by sale, lease (except for leases to tenants in
the ordinary course of managing income producing property which are
approved by Mortgagee pursuant to Section 15 of this Instrument),
contract, mortgage, deed of trust, further encumbrance or otherwise
(including any such transfers as security for additional financing of
the Property), and any change in or transfer, assignment,
hypothecation or pledge of any of the ownership interests in
Mortgagor (including any change in or transfer, assignment,
hypothecation or pledge of any of the ownership interests of any
legal entities which comprise or control Mortgagor), except transfers
and changes in ownership by devise or descent, shall be considered a
change of title. Mortgagee shall have the right to condition its
consent to any proposed sale or transfer described in this Section 17
upon, among other things, Mortgagee's approval of the transferee's
creditworthiness and management ability, and the transferee's
execution, prior to the sale or transfer, of a written assumption
agreement containing such terms as Mortgagee may require, including,
if required by Mortgagee, the imposition of a transfer fee of one
percent (1%) of the then outstanding balance of the Indebtedness.
Consent by Mortgagee to one transfer of the Property shall not
constitute consent to subsequent transfers or waiver of the
provisions of this Section 17. No transfer by Mortgagor shall relieve
Mortgagor of liability for payment of the Indebtedness.
18. NOTICE. Except for any notice required under applicable
law to be given in another manner, any and all notices, elections,
demands, or requests permitted or required to be made under this
Instrument or under the Note shall be in writing, signed by the party
giving such notice, election, demand or request, and shall be
delivered personally, or sent by registered, certified, or Express
United States mail, postage prepaid, or by Federal Express or similar
service requiring a receipt, to the other party at the address stated
above, or to such other party and at such other address within the
United States of America as any party may designate in writing as
provided herein. The date of receipt of such notice, election, demand
or request shall be the earliest of(i) the date of actual receipt,
(ii) one (1) business day after the date of mailing by Express Mail
or the delivery (for redelivery) to Federal Express or another
similar nationally recognized service requiring a receipt (if sent
for overnight, next day delivery), or (iii) the date of personal
delivery (or refusal upon presentation for delivery).
19. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY;
AGENTS; CAPTIONS. The covenants and agreements herein contained shall
bind, and the rights hereunder shall inure to, the respective heirs,
successors and assigns of Mortgagee and Mortgagor, subject to the
provisions of Section 17 hereof In exercising any rights hereunder or
taking any actions provided for herein, Mortgagee may act through its
employees, agents or independent contractors as authorized by
Mortgagee. The captions and headings of the sections of this
Instrument are for convenience only and are not to be used to
interpret or define the provisions hereof.
20. WAIVER OF STATUTE OF LIMITATIONS. Mortgagor hereby waives
the right to assert any statute of limitations as a bar to the
enforcement of the lien of this Instrument or to any action brought
to enforce the Note or any other obligation secured by this
Instrument.
21. WAIVER OF MARSHALING. Notwithstanding the existence of any
other security interests in the Property held by Mortgagee or by any
other party, Mortgagee shall have the right to determine the order in
which any or all of the Property shall be subjected to the remedies
provided herein. Mortgagee shall have the right to determine the
order in which any or all portions of the Indebtedness secured hereby
are satisfied from the proceeds realized upon the exercise of the
remedies provided herein. Mortgagor, any party who consents to this
Instrument and any party who now or hereafter acquires a security
interest in the Property and who has actual or constructive notice
hereof hereby waives any and all right to require the marshaling of
assets in connection with the exercise of any of the remedies
permitted by applicable law or provided herein.
22. HAZARDOUS WASTE. Mortgagor has furnished to Mortgagee an
Environmental Site Assessment Relative to the Release of Oil or
Hazardous Materials dated November 17, 2000, prepared by Gale
Associates, Inc. and an undated Environmental Questionnaire
(collectively, the "Report"). Except as disclosed to Mortgagee in the
Report, Mortgagor has received no notification of any kind suggesting
that the Property or any adjacent property is or may be contaminated
with any hazardous waste or materials or is or may be required to be
cleaned up in accordance with any applicable law or regulation; and
Mortgagor further represents and warrants that, except as previously
disclosed to Mortgagee in writing, to the best of its knowledge as of
the date hereof, there are no hazardous waste or materials located
in, on or under the Property or any adjacent property or incorporated
in any Improvements, nor has the Property or any adjacent property
ever been used as a landfill or a waste disposal site, or a
manufacturing, handling, storage, distribution or disposal facility
for hazardous waste or materials. As used herein, the term "hazardous
waste or materials" includes any substance or material defined in or
designated as hazardous or toxic wastes, hazardous or toxic material,
a hazardous, toxic or radioactive substance, or other similar term,
by any federal, state or local statute, regulation or ordinance now
or hereafter in effect. Mortgagor shall promptly comply with all
statutes, regulations and ordinances, and with all orders, decrees or
judgments of governmental authorities or courts having jurisdiction,
relating to the use, collection, treatment, disposal, storage,
control, removal or cleanup of hazardous waste or materials in, on or
under the Property or any adjacent property, or incorporated in any
Improvements, at Mortgagor's expense. In the event that Mortgagee at
any time has a reasonable belief that hazardous waste or materials at
levels requiring reporting and/or remediation under applicable laws
are present on the Property, or that Mortgagor has violated any
applicable environmental law with respect to the Property, then
promptly upon request by Mortgagee, Mortgagor shall obtain and
furnish to Mortgagee, at Mortgagors sole cost and expense, an
environmental audit and inspection of the Property from an expert
satisfactory to Mortgagee. In the event that Mortgagor fails to
promptly obtain such audit or inspection, Mortgagee or its agents may
perform or obtain such audit or inspection at Mortgagor's sole cost
and expense. Following the occurrence of an Event of Default,
Mortgagee may, but is not obligated to, enter upon the Property and
take such actions and incur such costs and expenses to effect such
compliance as it deems advisable to protect its interest in the
Property; and whether or not Mortgagor has actual knowledge of the
existence of hazardous waste or materials on the Property or any
adjacent property as of the date hereof, Mortgagor shall reimburse
Mortgagee as provided in Section 23 below for the full amount of all
reasonable, out-of-pocket costs and expenses incurred by Mortgagee
prior to Mortgagee acquiring title to the Property through
foreclosure or acceptance of a deed in lieu of foreclosure, in
connection with such compliance activities. Neither this provision
nor any of the other Loan Documents shall operate to put Mortgagee in
the position of an owner of the Property prior to any acquisition of
the Property by Mortgagee. The rights granted to Mortgagee herein and
in the other Loan Documents are granted solely for the protection of
Mortgagee's lien and security interest covering the Property, and do
not grant to Mortgagee the right to control Mortgagor's actions,
decisions or policies regarding hazardous waste or materials.
23. ADVANCES, COSTS AND EXPENSES. Mortgagor shall pay within
ten (10) days after written demand from Mortgagee all sums advanced
by Mortgagee and all costs and expenses incurred by Mortgagee in
taking any actions pursuant to the Loan Documents including
attorneys' fees and disbursements, reasonable accountants' fees,
reasonable appraisal and inspection fees and the costs for title
reports together with interest thereon at the rate applicable under
the Note after an Event of Default from the date such costs were
advanced or incurred. All such costs and expenses incurred by
Mortgagee, and advances made, shall constitute advances under this
Instrument to protect the Property and shall be secured by and have
the same priority as the lien of this Instrument. If Mortgagor fails
to pay any such advances, costs and expenses and interest thereon,
Mortgagee may apply any undisbursed loan proceeds to pay the same,
and, without foreclosing the lien of this Instrument, may at its
option commence an independent action against Mortgagor for the
recovery of the costs, expenses and/or advances, with interest,
together with costs of suit, costs of title reports and guaranty of
title, disbursements of counsel and reasonable attorneys' fees
incurred therein or in any appeal therefrom.
24. ASSIGNMENT OF LEASES AND RENTS. Mortgagor, for good and
valuable consideration, the receipt of which is hereby acknowledged,
to secure the Indebtedness, does hereby absolutely and
unconditionally grant, bargain, sell, transfer, assign, convey, set
over and deliver unto Mortgagee all right, title and interest of
Mortgagor in, to and under the Leases of the Property, whether now in
existence or hereafter entered into, and all guaranties, amendments,
extensions and renewals of said Leases and any of them, and all
rents, income and profits which may now or hereafter be or become due
or owing under the Leases, and any of them, or on account of the use
of the Property.
Mortgagor represents, warrants, covenants and agrees with Mortgagee
as follows:
(a) The sole ownership of the entire lessor's interest in the
Leases is vested in Mortgagor, and Mortgagor has not, and shall not,
perform any acts or execute any other instruments which might prevent
Mortgagee from fully exercising its rights with respect to the Leases
under any of the terms, covenants and conditions of this Instrument.
(b) The Leases are and shall be valid and enforceable in
accordance with their terms and have not been and shall not be
altered, modified, amended, terminated, canceled, renewed or
surrendered except as approved in writing by Mortgagee. The terms and
conditions of the Leases have not been and shall not be waived in any
manner whatsoever except as approved in writing by Mortgagee.
(c) Mortgagor shall not materially alter the term or the
amount of rent payable under any Lease without prior written notice
to Mortgagee and Mortgagee's consent, which shall not be unreasonably
withheld.
(d) To the best of Mortgagor's knowledge, there are no
defaults now existing under any of the Leases and there exists no
state of facts which, with the giving of notice or lapse of time or
both, would constitute a default under any of the Leases.
(e) Mortgagor shall give prompt written notice to Mortgagee of
any notice received by Mortgagor claiming that a default has occurred
under any of the Leases on the part of Mortgagor, together with a
complete copy of any such notice.
(f) Each of the Leases shall remain in full force and effect
irrespective of any merger of the interest of lessor and any lessee
under any of the leases.
(g) Mortgagor will not permit any Lease to become subordinate
to any lien other than the lien of this Instrument.
(h) Mortgagor shall not permit or consent to the assignment by
any tenant of its rights under its Lease without the prior written
consent of Mortgagee. Without limitation of the foregoing, Mortgagor
shall not permit or consent to the filing of any encumbrance against
the tenant's interest under any Lease including, without limitation,
any leasehold mortgage.
This assignment is absolute, is effective immediately, and is
irrevocable by Mortgagor so long as the Indebtedness remains outstanding.
Notwithstanding the foregoing, until a Notice is sent to Mortgagor in
writing that an Event of Default has occurred (which notice is hereafter
called a "Notice"), Mortgagor may receive, collect and enjoy the rents,
income and profits accruing from the Property.
Upon the occurrence of an Event of Default hereunder, Mortgagee may,
at its option, after service of a Notice, receive and collect all such
rents, income and profits from the Property as they become due. Mortgagee
shall thereafter continue to receive and collect all such rents, income and
profits, as long as such default or defaults shall exist, and during the
pendency of any foreclosure proceedings.
Mortgagor hereby irrevocably appoints Mortgagee its true and lawful
attorney with power of substitution and with full power for Mortgagee in
its own name and capacity or in the name and capacity of Mortgagor, from
and after service of a Notice, to demand, collect, receive and give
complete acquittances for any and all rents, income and profits accruing
from the Property, either in its own name or in the name of Mortgagor or
otherwise, which Mortgagee may deem necessary or desirable in order to
collect and enforce the payment of the rents, income and profits of and
from the Property. Lessees of the Property are hereby expressly authorized
and directed, following receipt of a Notice from Mortgagee, to pay any and
all amounts due Mortgagor pursuant to the Leases to Mortgagee or such
nominee as Mortgagee may designate in a writing delivered to and received
by such lessees, and the lessees of the Property are expressly relieved of
any and all duty, liability or obligation to Mortgagor in respect of all
payments so made.
Upon the occurrence of any Event of Default, from and after service
of a Notice, Mortgagee is hereby vested with full power to use all
measures, legal and equitable, deemed by it to be necessary or proper to
enforce this Section 24 and to collect the rents, income and profits
assigned hereunder, including the right of Mortgagee or its designee, to
enter upon the Property, or any part thereof, and take possession of all or
any part of the Property together with all personal property, fixtures,
documents, books, records, papers and accounts of Mortgagor relating
thereto, and Mortgagee may exclude Mortgagor, its agents and servants,
wholly therefrom. Mortgagor hereby grants full power and authority to
Mortgagee to exercise all rights, privileges and powers herein granted at
any and all times after service of a Notice, with full power to use and
apply all of the rents and other income herein assigned to the payment of
the costs of managing and operating the Property and of any indebtedness or
liability of Mortgagor to Mortgagee, including but not limited to the
payment of taxes, special assessments, insurance premiums, damage claims,
the costs of maintaining, repairing, rebuilding and restoring the
improvements on the Property or of making the same rentable, reasonable
attorneys' fees incurred in connection with the enforcement of this
Instrument, and of principal and interest payments due from Mortgagor to
Mortgagee on the Note and this Instrument, all in such order as Mortgagee
may determine. Mortgagee shall be under no obligation to exercise or
prosecute any of the rights or claims assigned to it hereunder or to
perform or carry out any of the obligations of the lessor under any of the
Leases and does not assume any of the liabilities in connection with or
arising or growing out of the covenants and agreements of Mortgagor in the
Leases. It is further understood that the assignment set forth in this
Section 24 shall not operate to place responsibility for the control, care,
management or repair of the Property, or parts thereof, upon Mortgagee, nor
shall it operate to make Mortgagee liable for the performance of any of the
terms and conditions of any of the Leases, or for any waste of the Property
by any lessee under any of the Leases, or any other person, or for any
dangerous or defective condition of the Property or for any negligence in
the management, upkeep, repair or control of the Property resulting in loss
or injury or death to any lessee, licensee, employee or stranger.
Notwithstanding anything contained herein to the contrary, in no
event shall this Instrument be deemed to reduce the indebtedness evidenced
by the Note by an amount in excess of the actual amount of cash received by
Mortgagee under the Leases, whether before, during or after the occurrence
of an Event of Default, and Mortgagor acknowledges that in no event shall
the Indebtedness be reduced by the value from time to time of the rents,
income and profits of or from the Property. In addition, Mortgagee reserves
the right, at any time, whether before or after the occurrence of an Event
of Default, to recharacterize the assignment in this Section 24 as merely
constituting security for the Indebtedness, which recharacterization shall
be made by written notice delivered to Mortgagor.
25. DEFAULT. The following shall each constitute an event of
default ("Event of Default"):
(a) Failure of or refusal by Mortgagor to pay any
portion of the sums secured by this Instrument when due and the
continuance of such failure for a period often (10) days after
Mortgagee delivers written notice thereof to Mortgagor; or
(b) Failure of Mortgagor within the time required by
this Instrument to make any payment for taxes, insurance or for
reserves for such payments, or any other payment necessary to
prevent filing of or discharge of any lien and the continuance
of such failure for a period often (10) days after Mortgagee
delivers written notice thereof to Mortgagor; or
(c) Failure by Mortgagor to observe or perform any of
its obligations under any of the Leases; or
(d) The Property or any part or interest in the Property
is transferred in any maimer whatsoever without the prior
written consent of Mortgagee; or
(e) If any lease agreement covering all or any portion
of the Property is executed by Mortgagor without such execution
being conditioned on Mortgagee's written consent; or
(f) Filing by Mortgagor of a voluntary petition in
bankruptcy or filing by Mortgagor of any petition or answer
seeking or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, or similar relief for
itself under any present or future federal, state or other
statute, law or regulation relating to bankruptcy, insolvency
or other relief for debtors, or the seeking, consenting to, or
acquiescing by Mortgagor in the appointment of any trustee,
receiver, custodian, conservator or liquidator for Mortgagor,
any part of the Property, or any of the income or rents of the
Property, or the making by Mortgagor of any general assignment
for the benefit of creditors, or the inability of or-failure by
Mortgagor to pay its debts generally as they become due, or the
insolvency on a balance sheet basis or business failure of
Mortgagor, or the making or suffering of a preference within
the meaning of federal bankruptcy law or the making of a
fraudulent transfer under applicable federal or state law, or
concealment by Mortgagor of any of its property in fraud of
creditors, or the imposition of a lien upon any of the property
of Mortgagor which is not discharged or bonded in the manner
permitted by Section 4 of this Instrument, or the giving of
notice by Mortgagor to any governmental body of insolvency or
suspension of operations; or
(g) Filing of a petition against Mortgagor seeking any
reorganization, arrangement, composition, readjustment,
liquidation, or similar relief under any present or future
federal, state or other law or regulation relating to
bankruptcy, insolvency or other relief for debts, or the
appointment of any trustee, receiver, custodian, conservator or
liquidator of Mortgagor, of any part of the Property or of any
of the income or rents of the Property, unless such petition
shall be dismissed within sixty (60) days after such filing,
but in any event prior to the entry of an order, judgment or
decree approving such petition; or
(h) The institution of any proceeding for the
dissolution or termination of Mortgagor voluntarily,
involuntarily, or by operation of law, unless, with respect to
an involuntary proceeding, the same is dismissed within sixty
(60) days after the date of its filing; or
(i) A material adverse change occurs in the assets,
liabilities or net worth of Mortgagor or any of the guarantors
of the indebtedness evidenced by the Note from the assets,
liabilities or net worth of Mortgagor or any of the guarantors
of the indebtedness evidenced by the Note previously disclosed
to Mortgagee with the result that Mortgagor's ability to
perform its obligations hereunder is materially impaired; or
(j) Any material warranty, representation or statement
furnished to Mortgagee by or on behalf of Mortgagor under the
Note, this Instrument, any of the other Loan Documents or the
Certificate and Indemnity Agreement Regarding Hazardous
Substances, shall prove to have been false or misleading in any
material respect and, if such false or misleading warranty,
representation or statement was not intentionally false or
misleading and can be cured by Mortgagor, if Mortgagor fails to
cure the same to the satisfaction of Mortgagee within thirty
(30) days after written notice thereof is delivered to
Mortgagor; or
(k) Failure of Mortgagor to observe or perform any other
covenant, condition or obligation under this Instrument when
such observance or performance is due, and such failure shall
continue for thirty (30) days after written notice thereof is
delivered to Mortgagor; provided, however, that if any such
failure cannot be cured by Mortgagor within thirty (30) days,
Mortgagor shall have an additional period of sixty (60) days to
cure such failure if Mortgagor promptly commences efforts to
cure such failure and diligently pursues such efforts to
completion; or
(l) The occurrence of any default (beyond the expiration
of any applicable cure period) under any of the documents
evidencing and/or securing any other indebtedness now or
hereafter owed to Mortgagee by Mortgagor, any of the guarantors
of the Note or any entity related to Mortgagor.
26. RIGHTS AND REMEDIES ON DEFAULT.
Upon the occurrence of any Event of Default and at any time
thereafter, Mortgagee may exercise any one or more of the following rights
and remedies:
(a) Mortgagee may declare the entire Indebtedness, including
the then unpaid principal balance on the Note, the accrued but unpaid
interest thereon, court costs and attorney's fees hereunder
immediately due and payable, without notice, presentment, protest,
demand or action of any nature whatsoever (each of which hereby is
expressly waived by Mortgagor), whereupon the same shall become
immediately due and payable. Additionally, Mortgagee shall not be
required to make any further advances on the Note or other Loan
Documents upon the occurrence of an Event of Default or an event
which, with the giving of notice or passing of time, would constitute
an Event of Default.
(b) Mortgagee may enter upon the Property and take exclusive
possession thereof and of all books, records and accounts relating
thereto without notice and without being guilty of trespass, and
hold, lease, manage, operate or otherwise use or permit the use
of the Property, either itself or by other persons, firms or
entities, in such manner, for such time and upon such other terms as
Mortgagee may deem to be prudent and reasonable under the
circumstances (making such repairs, alterations, additions and
improvements thereto and taking any and all other action with
reference thereto, from time to time, as Mortgagee shall deem
necessary or desirable), and apply all rents and other amounts
collected by Mortgagee in connection therewith in accordance with the
provisions of subsection (h) of this Section 26. Mortgagor hereby
irrevocably appoints Mortgagee as the agent and attorney-in-fact of
Mortgagor, with full power of substitution, and in the name of
Mortgagor, if Mortgagee elects to do so, to (i) endorse the name of
Mortgagor on any checks or drafts representing proceeds of the
insurance policies, or other checks or instruments payable to
Mortgagor with respect to the Property, (ii) prosecute or defend any
action or proceeding incident to the Property, and (iii) take any
action with respect to the Property that Mortgagee may at any time
and from time to time deem necessary or appropriate. Mortgagee shall
have no obligation to undertake any of the foregoing actions, and if
Mortgagee should do so, it shall have no liability to Mortgagor for
the sufficiency or adequacy of any such actions taken by Mortgagee.
(c) Mortgagee may foreclose this Instrument in the manner
permitted by the laws of the Commonwealth of Massachusetts.
(d) Mortgagee may sell or offer for sale the Property in such
manner as permitted or required by the statutes of the Commonwealth
of Massachusetts relating to the sale of real estate or by the
Uniform Commercial Code relating to the sale of collateral after
default by a debtor, or by any other present or subsequent enactments
relating to the same. Such sales shall be made in accordance with the
requirements therefor of the laws of the Commonwealth of
Massachusetts, including, to the extent there relevant, the version
of the Uniform Commercial Code adopted by the Commonwealth of
Massachusetts. Nothing contained in this paragraph shall be construed
to limit in any way Mortgagee's right to sell the Property by private
sale if, and to the extent that such private sale is permitted under
the laws of the Commonwealth of Massachusetts or by public or private
sale after entry of a judgment by any court of competent jurisdiction
ordering same. At any such sale:
A. whether made under any legal requirement or by virtue
of any judicial proceedings or any other legal right, remedy or
recourse, it shall not be necessary for Mortgagee to have
physically present. or to have constructive possession of, the
Property (Mortgagor shall deliver to Mortgagee any portion of
the Property not actually or constructively possessed by
Mortgagee immediately upon demand by Mortgagee) and the title
to and right of possession of any such property shall pass to
the purchaser thereof as completely as if the same had been
actually present and delivered to purchaser at such sale;
B. to the fullest extent permitted by law, Mortgagor
shall be completely and irrevocably divested of all of its
right, title, interest, claim and demand whatsoever, either at
law or in equity, in and to the property sold, and such sale
shall be a perpetual bar, both at law and in equity, against
Mortgagor and against all other persons claiming or to claim
the property sold or to any part thereof by, through or under
Mortgagor; and
C. to the extent and under such circumstances as are
permitted by law, Mortgagee may be a purchaser at any such
sale.
(e) After sale of the Property, or any portion thereof,
Mortgagor will be divested of any and all interest and claim thereto,
including any interest or claim to all insurance policies, bonds,
loan commitments and other intangible property covered hereby.
Additionally, Mortgagor will be considered a tenant at sufferance of
the purchaser of the Property, and said purchaser shall be entitled
to immediate possession thereof, and if Mortgagor shall fail to
vacate the Property immediately, the purchaser may and shall have
the right, without further notice to Mortgagor, to go into any
justice court in any precinct or county in which the Property is
located and file an action in forcible entry and detainer, which
action shall lie against Mortgagor or its assigns or legal
representatives, as a tenant at sufferance. This remedy is cumulative
of any and all remedies the purchaser may have hereunder or
otherwise.
(f) (i) Upon, or at any time after, commencement of
foreclosure of the lien and security interest provided for herein or
any legal proceedings hereunder, Mortgagee may make application to a
court of competent jurisdiction, as a matter of strict right and
without notice to Mortgagor or regard to the adequacy of the Property
for the repayment of the Indebtedness, for appointment of a receiver
of the Property, and Mortgagor does hereby irrevocably consent to
such appointment. Any such receiver shall have all the usual powers
and duties of receivers in similar cases, including the full power to
rent, maintain and otherwise operate the Property upon such terms as
may be approved by the court, and shall apply such Rents in
accordance with the provisions of subsection (h) of this Section 26.
(ii) Mortgagee may exercise any and all other rights,
remedies and recourses granted under the Loan Documents or now
or hereafter existing in equity, at law, by virtue of statute
or otherwise.
(g) Mortgagee shall have all rights, remedies and recourses
granted in the Loan Documents and available at law or equity and the
same (i) shall be cumulative and concurrent; (ii) may be pursued
separately, successively or concurrently against Mortgagor, any
guarantor of the Indebtedness or others obligated under the Note, or
against the Property, or against any of them at the sole discretion
of Mortgagee, (iii) may be exercised as often as occasion therefor
shall arise, it being agreed by Mortgagor that the exercise or
failure to exercise any of the same shall in no event be construed as
a waiver or release thereof or of any other right, remedy or
recourse; and (iv) are intended to be, and shall be, nonexclusive.
(h) To the fullest extent permitted by law, Mortgagor hereby
irrevocably and unconditionally waives and releases (i) all benefits
that might accrue to Mortgagor by any present or future laws
exempting the Property from attachment, levy or sale on execution or
providing for any appraisement, valuation, stay of execution,
exemption from civil process, redemption or extension of time for
payment; (ii) all notices of any Event of Default (except as may be
specifically provided for under the terms hereof), presentment,
demand, notice of intent to accelerate, notice of acceleration and
any other notice of Mortgagee's election to exercise or the actual
exercise of any right, remedy or recourse provided for under the Loan
Documents; (iii) any right to appraisal or marshaling of assets or a
sale in inverse order of alienation; (iv) the exemption of homestead;
and (v) the administration of estates of decedents, or other matter
to defeat, reduce or affect the right of Mortgagee under the terms
of this Instrument to sell the Property for the collection of the
Indebtedness secured hereby (without any prior or different resort
for collection) or the right of Mortgagee, under the terms of this
Instrument, to receive the payment of the Indebtedness out of the
proceeds of sale of the Property in preference to every other person
and claimant whatever (only reasonable expenses of such sale being
first deducted).
(i) The proceeds of any sale of, and the rents, profits and
other income generated by the holding, leasing, operating or other
use of the Property, shall be applied by Mortgagee (or the receiver,
if one is appointed) to the extent that funds are so available
therefrom in the following orders of priority: (i) first, to the
payment of the reasonable out-of-pocket costs and expenses of taking
possession of the Property and of holding, using, leasing,
maintaining, repairing, improving and selling the same, including,
without limitation, (A) receiver's fees; (B) costs of advertisement;
(C) attorneys' and accountants' fees; and (D) court costs; if any;
(ii) second, to the payment of all amounts, other than the principal
amount and accrued but unpaid interest on the Note which may be due
to Mortgagee under the Loan Documents, including all Indebtedness,
together with interest thereon as provided therein, in such order and
manner as Mortgagee may determine; (iii) third, to the payment of the
principal amount outstanding on the Note in such order and manner as
Mortgagee may determine and all other Indebtedness; (iv) fourth, to
the payment of all accrued but unpaid interest due on the Note in
such order and manner as Mortgagee may determine; and (v) fifth, to
Mortgagor. Mortgagor, and any other party liable on the Indebtedness
shall be liable for any deficiency remaining in the Indebtedness
subsequent to any sale referenced in this subsection (i).
(j) Mortgagee shall have the right to become the purchaser at
any sale of the Property hereunder and shall have the right to be
credited on the amount of its bid therefor all of the Indebtedness
due and owing as of the date of such sale.
(k) If Mortgagee shall accelerate the Indebtedness following
the occurrence of an Event of Default, any payments received by
Mortgagee following such acceleration, whether as the result of
voluntary payments made by Mortgagor or as a result of the sale of
the Property by Mortgagee shall be deemed voluntary prepayments of
the Note and accordingly, the prepayment fee required under the Note
shall also be payable, subject to the terms of the Note.
(l) The purchaser at any trustee's or foreclosure sale
hereunder may disaffirm any easement granted, or rental, lease or
other contract made in violation of any provisions of this Instrument
and may take immediate possession of the Property free from, and
despite the terms of, any such grant of easement, rental, lease or
other contract.
27. RECONVEYANCE. Upon payment of all sums secured by this
Instrument, Mortgagee shall reconvey the Property and shall surrender
this Instrument and all notes evidencing Indebtedness secured by this
Instrument to the person legally entitled thereto. Such person or
persons shall pay Mortgagee's costs incurred in so reconveying the
Property.
28. USE OF PROPERTY. The Property is not currently used for
agricultural, farming, timber or grazing purposes. Mortgagor warrants
that this Instrument is and will at all times constitute a commercial
mortgage, as defined under appropriate state law.
29. FUTURE ADVANCES. Upon request of Mortgagor, Mortgagee, at
Mortgagee's option so long as this Instrument secures Indebtedness
held by Mortgagee, may make Future Advances to Mortgagor. Such Future
Advances, with interest thereon, shall be secured by this Instrument
when evidenced by promissory notes stating that said notes are
secured hereby.
30. IMPOSITION OF TAX BY STATE.
A. State Taxes Covered. The following constitute state taxes
to which this Section applies:
(i) A specific tax upon trust deeds or upon all or any
part of the indebtedness secured by a trust deed.
(ii) A specific tax on a grantor which the taxpayer is
authorized or required to deduct from payments on the
indebtedness secured by a trust deed.
(iii) A tax on a trust deed chargeable against the
beneficiary or the holder of the note secured.
B. Remedies. If any state ta.xto which this Section applies is
enacted subsequent to the date of this Instrument, this shall have
the same effect as an Event of Default, and Mortgagee may exercise
any or all of the remedies available to it unless the following
conditions are met:
(i) Mortgagor may lawfully pay the tax or charge imposed
by state tax, and
(ii) Mortgagor pays the tax or charge within thirty (30)
days after notice from Mortgagee that the tax law has been
enacted
31. ATTORNEYS' FEES. In the event suit or action is instituted
to enforce or interpret any of the terms of this Instrument
(including without limitation efforts to modify or vacate any
automatic stay or injunction), the prevailing party shall be entitled
to recover all expenses reasonably incurred at, before and after
trial and on appeal whether or not taxable as costs, or in any
bankruptcy proceeding including, without limitation, attorneys' fees,
witness fees (expert and otherwise), deposition costs, copying
charges and other expenses. Whether or not any court action is
involved, all reasonable expenses, including but not limited to the
costs of searching records, obtaining title reports, surveyor
reports, title insurance and attorney fees, incurred by Mortgagee
that are necessary at any time in Mortgagee's opinion for the
protection of its interest or enforcement of its rights shall become
a part of the Indebtedness payable on demand and shall bear interest
from the date of expenditure until repaid at the interest rate as
provided in the Note. The term "attorneys' fees" as used in the Loan
Documents shall be deemed to mean such fees as are reasonable and are
actually incurred.
32. GOVERNING LAW SEVERABILITY. This Instrument shall be
governed by the law of the Commonwealth of Massachusetts applicable
to contracts made and to be performed therein (excluding choice-of-
law principles). In the event that any provision or clause of this
Instrument or the Note conflicts with applicable law, such conflict
shall not affect other provisions of this Instrument or the Note
which can be given effect without the conflicting provision, and to
this end the provisions of this Instrument and the Note are declared
to be severable.
33. TIME OF ESSENCE. Time is of the essence of this
Instrument.
34. CHANGES IN WRITING. This Instrument and any of its terms
may only be changed, waived, discharged or terminated by an
instrument in writing signed by the party against which enforcement
of the change, waiver, discharge or termination is sought. Any
agreement subsequently made by Mortgagor or Mortgagee relating to
this Instrument shall be superior to the rights of the holder of any
intervening lien or encumbrance.
35. NO OFFSET. Mortgagor's obligation to make payments and
perform all obligations, covenants and warranties under this
Instrument and under the Note shall be absolute and unconditional and
shall not be affected by any circumstance, including without
limitation any setoff, counterclaim, abatement, suspension,
recoupment, deduction, defense or other right that Mortgagor or any
guarantor may have or claim against Mortgagee or any entity
participating in making the loan secured hereby. The foregoing
provisions of this section, however, do not constitute a waiver of
any claim or demand which Mortgagor or any guarantor may have in
damages or otherwise against Mortgagee or any other person, or
preclude Mortgagor from maintaining a separate action thereon;
provided, however, that Mortgagor waives any right it may have at law
or in equity to consolidate such separate action with any action or
proceeding brought by Mortgagee.
37. AUTHORIZATION TO INSERT. Mortgagor authorizes Mortgagee or
its agent to insert in the spaces provided herein the amount of the
Note, the mortgagee's loan policy number, the title company issuing
such policy, the total amounts of the obligations secured, and the
last payment due dates, if any of the foregoing information is not
typed in on this document.
38. WAIVER OF JURY TRIAL. MORTGAGOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTELLIGENTLY WAIVES ANY AND ALL RIGHTS THAT EACH
PARTY TO THIS INSTRUMENT MAY NOW OR HEREAFTER HAVE UNDER THELAWS OF
THE UNITED STATES OF AMERICA OR THE COMMONWEALTH OF MASSACHUSETTS, TO
A TRIAL BY JURY OF ANY AND ALL ISSUES ARISINGDIRECTLY OR INDIRECTLY
IN ANY ACTION OR PROCEEDING RELATING TO THIS INSTRUMENT, THE LOAN
DOCUMENTS OR ANY TRANSACTIONS CONTEMPLATED THEREBY OR RELATED
THERETO. IT IS INTENDED THAT THIS WAIVER SHALL APPLY TO ANY AND ALL
DEFENSES, RIGHTS, CLAIMS AND/OR COUNTERCLAIMS IN ANY SUCH ACTION OR
PROCEEDING.
MORTGAGOR UNDERSTANDS THAT THIS WAIVER IS A WAIVER OF A
CONSTITUTIONAL SAFEGUARD, AND EACH PARTY INDIVIDUALLY BELIEVES THAT THERE
ARE SUFFICIENT ALTERNATE PROCEDURAL AND SUBSTANTIVE SAFEGUARDS, INCLUDING,
A TRIAL BY AN IMPARTIAL JUDGE, THAT ADEQUATELY OFFSET THE WAIVER CONTAINED
HEREIN.
39. MAXIMUM INTEREST CHARGES. Notwithstanding anything
contained herein or in any of the Loan Documents to the contrary, in
no event shall Mortgagee be entitled to receive interest on the loan
secured by this Instrument (the "Loan") in amounts which, when added
to all of the other interest charged, paid to or received by
Mortgagee on the Loan, causes the rate of interest on the Loan to
exceed the highest lawful rate. Mortgagor and Mortgagee intend to
comply with the applicable law governing the highest lawful rate
and the maximum amount of interest payable on or in connection with
the Loan. If the applicable law is ever judicially interpreted so as
to render usurious any amount called for under the Loan Documents, or
contracted for, charged, taken, reserved or received with respect to
the Loan, or if acceleration of the final maturity date of the Loan
or if any prepayment by Mortgagor results Mortgagor having paid or
demand having been made on Mortgagor to pay, any interest in excess
of the amount permitted by applicable law, then all excess amounts
theretofore collected by Mortgagee shall be credited on the principal
balance of the Note (or, if the Note has been or would thereby be
paid in full, such excess amounts shall be refunded to Mortgagor),
and the provisions of the Note, this Instrument and any demand on
Mortgagor shall immediately be deemed reformed and the amounts
thereafter collectible thereunder and hereunder shall be reduced,
without the necessity of the execution of any new document, so as to
comply with the applicable law, but so as to permit the recovery of
the fullest amount otherwise called for thereunder and hereunder. The
right to accelerate the final maturity date of the Loan does not
include the right to accelerate any interest which has not otherwise
accrued on the date of such acceleration, and Mortgagee does not
intend to collect any unearned interest in the event of acceleration.
All sums paid or agreed to be paid to Mortgagee for the use,
forbearance or detention of the Loan shall, to the extent permitted
by applicable law, be amortized, prorated, allocated and spread
through the full term of the Loan until payment in full so that the
rate or amount of interest on account of the Loan does not exceed the
applicable usury ceiling. By execution of this Instrument, Mortgagor
acknowledges that it believes the Loan to be nonusurious and agrees
that if, at any time, Mortgagor should have reason to believe that
the Loan is in fact usurious, it will give Mortgagee written notice
of its belief and the reasons why Mortgagor believes the Loan to be
usurious, and Mortgagor agrees that Mortgagee shall have ninety (90)
days following its receipt of such written notice in which to make
appropriate refund or other adjustment in order to correct such
condition if it in fact exists.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE
READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO
OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE
LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY
ANOTHER WRITTEN AGREEMENT.
IN WITNESS WI-IEREOF, Mortgagor has executed this Instrument or has
caused the same to be executed by its representatives thereunto duly
authorized.
MORTGAGOR:
Signed, sealed and delivered HAEMONETICS CORPORATION,
in the presence of a Massachusetts business corporation
/s/ Alicia R. Lopez By: /s/ James L. Peterson /s/ Ron Ryan
- ----------------------------- -------------------------------------
Signature of First Witness Print: James L. Peterson Ron Ryan
Alicia R. Lopez Its: CEO CFO
- -----------------------------
Typed Name of First Witness
/s/ Steven H. Kasok
- -----------------------------
Signature of Second Witness
Steven H. Kasok
- -----------------------------
Typed Name of Second Witness
STATE OF MASSACHUSETTS )
)ss:
COUNTY OF NORFOLK )
Then and there personally appeared James L. Peterson & Ron Ryan and
acknowledged himself to be the CEO and CFO, an authorization signatory of
HAEMONETICS CORPORATION a Massachusetts business corporation, and further
acknowledged that he, as such CEO and CFO, being authorized so to do,
executed the foregoing instrument, for the purposes therein contained, as
his free act and deed, and the free act and deed of said corporation,
before me.
/s/ Lorraine A. Bird
----------------------------------
Commissioner of the Superior Court
Notary Public
My Commission Expires: 10-04-02
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[SEAL]
EXHIBIT "A"
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Legal Description
That certain parcel of land situate in Braintree in the County of Norfolk,
Commonwealth of
Massachusetts, bounded and described as follow:
EASTERLY by the Westerly line of Wood Road, shown on the plan
hereinafter referred to, one hundred sixty and
52/100(160.52) feet;
SOUTHEASTERLY Five and 36/100 (5.36) feet;
NORTHEASTERLY four hundred twenty-one and 92/100 (421.92) feet, by lot
Numbered 30, shown on said plan;
SOUTHEASTERLY by the Northwesterly line of Route 128, shown on
said plan, Eight hundred seventy-one and 54/100
(871.54) feet;
WESTERLY eight hundred twenty and 27/100 (820.27) feet;
NORTHWESTERLY seven hundred thirty-two (732) feet, by land now or
formerly of the Commonwealth of Massachusetts; and
NORTHEASTERLY by lot number 32, shown on said plan, three hundred
eight and 08/100 (308.00) feet.
Said parcel is shown as lot numbered 31 on a plat drawn by Ernest W.
Branch, Inc., Surveyors, dated April 25, 1980, as approved by the Land
Court, filed in the Land Registration Office as No. 11973M, a copy of a
portion of which is filed in Norfolk Registry District with Certificate No.
111018, Sheet 2, Book 556.
Excepting and excluding from said parcel so much of the fee and soil
in said Wood Road as lies opposite said lot numbered 31.
Together with the right to use Wood Road, in common with others, and
with the benefit of other rights and easements, in common with others, all
as and to the extent set forth in the deed from Boston Safe Deposit and
Trust Company, and others, Trustees, to Haemonetics Corporation, dated June
11, 1980, registered with said District as Document 402936.
Together with the rights of way as set forth in Certificate No.
10555, as affected by Document Nos. 74454 and 74455.
The above described land is subject also to and has the benefit of
restrictions as set forth in Document No. 402938, expiring on December 21,
2010, as affected by Document No. 479104.
The above described land is subject also to and has the benefit of
rights and easements as set forth in Document No. 402938.
EXHIBIT "B"
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Permitted Exceptions
1. The"no access" provisions applicable to the Southeasterly boundary of
locus along Route 128, as set forth in the Order of Taking dated May
15, 1956, by the Commonwealth of Massachusetts laying out Route 128,
filed as Document No. 182231, as affected by Certificate of Entry
dated May 29, 1956, filed as Document No. 182472.
2. Assessment and lien for use of common sewer, as set forth in a
Certificate dated June 6, 1966, of the Braintree Sewer Commissioners,
registered as Document 275217, however, this policy insures the
insured that all charges due and owing have been paid.
3. Restrictions imposed on Lot 31 by, rights and easements reserved in,
and agreement respecting operating and maintenance costs in Wood Road
set forth in paragraphs A through H, including subparagraphs 1, 2 3,
4(a) - (e), 5 and 6 of deed to Haemonetics Corporation from C. Healy
Company, filed as Document No. 402938, as affected by Document No.
479104.