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EXHIBIT 10.2
LOAN AGREEMENT
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AGREEMENT made this 29th day of May, l997 by and between VICOR
CORPORATION, a Delaware corporation having a place of business at 23 Frontage
Road, Andover, MA 01810 (the "Lender") and WILLIAM J. CALLAHAN and WILLIAM J.
CALLAHAN, JR., Trustees (the "Trustees") of ANDOVER PARK REALTY TRUST (the
"Trust") established under Declaration of Trust dated June 25, l986 and recorded
with the Essex County (North District) Registry of Deeds Book 2226, Page 284
with a mailing address of P. O. Box 269, Bedford, MA 01730 (jointly and/or
severally, the "Borrower").
WHEREAS:
1. The Borrower is named in a certain Letter of Intent dated April 17,
l997 as issued by the Lender (the "Loan Commitment") relating to terms and
conditions for a loan advance in the original principal amount of $7,500,000.00
with interest thereon (the "Loan"), to be granted to the Borrower;
2. The Borrower accepted the Loan Commitment and wishes to proceed with
the Loan as required by the Loan Commitment;
3. The Borrower and the Lender are desirous of reducing to writing
their understanding respecting the Loan as set forth hereinbelow and subject to
the terms and conditions herein;
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and for other good and valuable consideration, the receipt and sufficiency
of which are acknowledged and shall be conclusively presumed, the parties agree
as follows:
A. LOAN ADVANCE.
1. AMOUNT ADVANCED. The Lender shall advance to the Borrower the
principal amount of $7,500,000.00 as set forth hereinbelow and subject to the
terms hereof.
2. PURPOSES. The advances shall be for the purpose of refinancing the
land, building and improvements thereon known as and numbered Lot 3, 300 Federal
Street, Andover, Massachusetts (hereinafter, the "Mortgaged Premises").
B. LOAN DOCUMENTS & WARRANTIES.
1. LOAN COMMITMENT. The Loan Commitment is attached hereto and
incorporated herein by reference as Exhibit A.
2. TERM PROMISSORY NOTE. Simultaneously with the execution of this Loan
Agreement, the Borrower shall execute and deliver a Promissory Note (the "Note")
in the form attached hereto and incorporated herein by reference as Exhibit B.
3. MORTGAGE. As security for the Note, the Borrower shall execute and
deliver simultaneously herewith a Mortgage and Security Agreement (the
"Mortgage") in favor of the Lender relating to the Mortgaged Premises, which
shall be a duly recorded first mortgage lien on the Mortgaged Premises. The
Mortgage shall be in the form attached hereto and incorporated herein by
reference as Exhibit C.
4. CONDITIONAL ASSIGNMENT OF LEASES AND RENTS. Simultaneously with the
execution of this Loan Agreement and as additional security for the Note, the
Borrower shall execute and deliver a Conditional Assignment of Leases and Rents
relating to the Mortgaged Premises and the Borrower has executed UCC Financing
Statements respecting the Mortgaged Premises in favor of the Lender, said
Conditional Assignment of Leases and Rents and UCC Financing Statements to be in
the form attached hereto and incorporated herein by reference as Exhibit D.
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5. COLLATERAL ASSIGNMENT OF CONTRACTS, LICENSES, PERMITS,
AGREEMENTS, WARRANTIES AND APPROVALS. Simultaneously with the execution of this
Loan Agreement and as additional security for the Note, the Borrower shall
execute and deliver a Collateral Assignment of Contracts, Licenses, Permits,
Agreements, Warranties and Approvals relating to the Mortgaged Premises in the
form attached hereto and incorporated herein by reference as Exhibit "E".
6. HAZARDOUS MATERIALS INDEMNITY AGREEMENT. Simultaneously with
the execution of this Loan Agreement and as additional security for the Note,
Borrower shall execute and deliver a Hazardous Materials Indemnity Agreement in
the form attached herein and incorporated herein by reference as Exhibit "F".
7. REAL ESTATE TAXES. Simultaneously with the execution of this
Loan Agreement, the Borrower shall deliver to the Lender evidence of the payment
of all real estate taxes for the Mortgaged Premises, which evidence shall be in
a form acceptable to the Lender in its sole reasonable discretion.
8. TRUSTEES' AND BENEFICIARIES' CERTIFICATE. The Borrower
represents and warrants that the Trustees have the requisite authority to
execute and deliver this Loan Agreement and its exhibits on behalf of the Trust.
The Borrower expressly agrees to deliver simultaneously herewith a Trustees'
Certificate and Authority and Beneficiaries' Certificate and Direction
evidencing the authority of the Trustees to execute this Loan Agreement and its
exhibits. Said documents shall be in the form attached hereto and incorporated
herein by reference collectively as Exhibit G.
9. LIENS/MUNICIPAL CHARGES. The Borrower represents and warrants
that all water and sewer use charges, and other municipal charges in connection
with the Mortgaged Premises have been paid, that all fees and assessments have
been paid, and that there are no other liens or encumbrances against the
Mortgaged Premises.
10. INSURANCE/LOSS PAYEE.
(a) Simultaneously with the execution of this Loan Agreement,
the Borrower shall provide to the Lender a fire, casualty, flood,
hazard and liability insurance policy or policies for the Mortgaged
Premises with such coverage as the Lender may reasonably require. In no
event shall the amount of such insurance be less than the principal
amount of the Note. The Lender shall be named a loss payee on said
policy or policies.
(b) The Lender reserves the right to require such additional
insurance coverage as it may reasonably deem necessary.
(c) The Borrower shall furnish upon request evidence that the
then current premiums for such fire, casualty, flood, hazard and
liability insurance have been paid. All policies shall be written in
amounts and with companies satisfactory to the Lender, shall be
maintained throughout the term of the Note, and shall contain such
provisions as the Lender deems necessary or desirable to protect its
interest. All policies shall contain a provision requiring at least
thirty (30) days advance notice to the Lender before any policy is
canceled or modified.
(d) Any failure on the part of the Lender to secure physical
evidence of any insurance required herein shall not relieve the
Borrower of any such responsibilities.
11. TITLE INSURANCE. The Borrower shall provide to the Lender a
mortgagee's title insurance policy containing only those exceptions as may be
acceptable to the Lender's counsel.
12. APPRAISALS. The Lender, in its reasonable sole discretion, may
require updated appraisals for the Mortgaged Premises pledged by the Borrower
upon any event of default under the loan documents, upon any change in the
market conditions for the Mortgaged Premises or upon any event which affects the
value of the Premises, including the loss or replacement of any tenant for said
Mortgaged Premises as security for its undertakings to the Lender under this
Agreement. The appraisal costs shall be paid by the Borrower.
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13. DELIVERY OF TRUST DOCUMENTS/TRANSFER OF OWNERSHIP. The
Borrower shall deliver simultaneously herewith or prior hereto a certified copy
of its organizational documents including, without limitation, the Declaration
of Trust. The Borrower for itself and on behalf of the beneficiaries of the
Trust further warrants and represents that they shall not transfer, convey,
sell, pledge or otherwise dispose of any interest, legal or beneficial, in the
Trust without the prior written consent of the Lender, except in accordance with
Paragraph C.3. hereof.
C. CONDITIONS PRECEDENT & SUBSEQUENT.
1. FINANCIAL REPORTING. The Borrower agrees and represents that
it shall deliver to the Lender the following financial information:
(a) Updated rent rolls, profit and loss statements, balance
sheet and tax returns of the Trust, if any, as may be requested by the
Lender during the term of this Loan Agreement, said documents to be in
a form acceptable to the Lender; and
(b) In the event of a default under this Agreement or any of
its exhibits, any and such further financial information which the
Lender may request during the term of this Agreement.
2. OBLIGATIONS. The Borrower acknowledges and agrees that the
Mortgage and Security Agreement, UCC Financing Statements, Conditional
Assignment of Leases and Rents, Collateral Assignment of Contracts, Licenses,
Permits, Agreements, Warranties and Approvals, Hazardous Materials Indemnity
Agreement, and all other documents and exhibits set forth in this Agreement act
as security for the fulfillment of all obligations and undertakings due to the
Lender from the Borrower now existing or hereinafter arising.
3. GUARANTIES. The Borrower agrees to obtain unconditional and
absolute guaranties of the Note by any company, entity, or individual which or
who acquires, after the date of the Note, any legal interest in Lot 6A or any
other portion of the project owned by the Trust and known as Woodland Park,
Federal Street, Andover, Massachusetts.
4. ENVIRONMENTAL INDEMNIFICATION. The Trust agrees to indemnify
the Lender from losses or damages relating to any and all environmental or
hazardous waste matters pertaining to the Mortgaged Premises. The Trust
represents to the Lender that, with respect to the Mortgaged Premises, there is
no oil or hazardous material, as such terms are defined by Massachusetts General
Laws, Chapter 21E, and applicable federal regulations, present on or in the
Mortgaged Premises and that there is no threat of release of such oil or
hazardous materials on or in the Mortgaged Premises.
5. DEFAULTS. The Lender's undertakings under this Agreement and
its exhibits shall automatically terminate and the Borrower shall be deemed in
default of this Agreement upon the earlier to occur of: (a) the commencement of
foreclosure proceedings or litigation by any other secured party respecting the
Lender's collateral; (b) the filing of a petition for relief by or against the
Borrower under the Bankruptcy Code; (c) any assignment or bulk sale by the
Borrower for the benefit of creditors; (d) the failure of the Borrower to
maintain the financial covenants set forth in this Agreement; (e) loss, theft,
damage, destruction, sale or encumbrances to or of any collateral, or the making
of any levy, seizure or attachment thereof or thereon; (f) change in the
condition or affairs (financial or otherwise) of the Borrower which, in the
reasonable opinion of the Lender, will impair its security or increase its risk,
including specifically the loss of a tenant in the Mortgage Premises and the
failure by the Borrower to replace such tenant within one hundred twenty (120)
days with a tenant acceptable to the Lender, in its sole and exclusive
discretion, the Lender shall not unreasonably withhold its approval of any
replacement tenant, or the reduction of twenty-five (25%) percent or more in the
total rental income of the Mortgaged Premises and the continuance of that
reduction for one hundred twenty (120) days or more, during the term of this
Agreement as the same may be extended; or (g) any default by the Borrower under
any of the terms and conditions of this Agreement and any of its exhibits.
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6. CUMULATIVE RIGHTS. The Lender's rights and remedies under this
Agreement shall be in addition to and not in limitation of all of the Lender's
rights and remedies under the terms and provisions of any of the exhibits to
this Agreement, the Loan Commitment or otherwise.
7. PAROL EVIDENCE. This Agreement represents the full
understanding between the parties hereto with respect to the subject matters
contained herein. No collateral representations have been made or authorized by
the Lender, its agents, employees and legal representatives as an inducement for
the execution of this Agreement or its exhibits by any party hereto. Any
amendment or modification of the terms hereof must be in writing and signed by
all parties hereto. The Borrower agrees and acknowledges that it shall execute
and deliver upon request any and all documents necessary to effectuate or to
make more secure the Lender's security interests in the collateral pledged to it
by the Borrower.
8. ATTORNEYS' FEES. Simultaneously herewith, the Borrower shall
pay to the Lender its costs and expenses, including reasonable attorneys' fees,
incurred by the Lender to date in connection with this Agreement. In addition,
the Borrower acknowledges and agrees that it is responsible for all costs and
expenses, including without limitation, reasonable attorneys' fees, incurred by
the Lender in connection with the enforcement of any rights or remedies
hereunder, now existing or hereafter arising.
9. NOTICES. All notices respecting the foregoing shall be sent in
writing by first class mail, postage prepaid.
10. ADVICE OF COUNSEL. The parties acknowledge that each of them
has had the opportunity to obtain independent legal counsel respecting this
Agreement, its exhibits, and any and all matters contained therein prior to the
execution of this Agreement and its exhibits, and that each of the parties has
freely and willingly consented to the terms of this Agreement, its exhibits, and
the matters contained therein.
11. MERGER. This Agreement and its exhibits constitute the full
and complete understanding between the parties with respect to the matters
contained herein, shall be binding upon their respective successors, heirs and
assigns, and shall take effect as a sealed instrument.
12. GOVERNING LAW. This Agreement and its exhibits shall be
governed and construed in accordance with the laws of the Commonwealth of
Massachusetts.
13. NON-WAIVER. No delay or failure by any party to exercise any
right under this Agreement, and no partial or single exercise of that right,
shall constitute a waiver of that or any other right, unless otherwise expressly
provided herein.
14. HEADINGS. Headings in this Agreement are for convenience only
and shall not be used to interpret or construe its provisions.
15. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
SIGNED AS AN INSTRUMENT UNDER SEAL THIS 29TH DAY OF MAY, 1997.
VICOR CORPORATION
/s/ John F. Gallant By: /s/ Patrizio Vinciarelli
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Witness Patrizio Vinciarelli, its
President
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/s/ John F. Gallant By: /s/ Mark A. Glazer
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Witness Mark A. Glazer, its Vice
President of Finance
ANDOVER PARK REALTY TRUST
/s/ Mark S. Raffa By: /s/ William J. Callahan, Trustee
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Witness WILLIAM J. CALLAHAN,
Trustee
/s/ Mark S. Raffa By: /s/ William J. Callahan Jr., Trustee
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Witness WILLIAM J. CALLAHAN, JR.
Trustee