COMMERCIAL MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS
Exhibit
10.3
COMMERCIAL
MORTGAGE, SECURITY AGREEMENT AND
ASSIGNMENT
OF LEASES AND RENTS
This
COMMERCIAL MORTGAGE. SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS
(this
"Mortgage") entered into at Chicopee, Massachusetts, as of June
4, 2003,
between
Xxxxx X Xxxxxxx, an individual, with an address of 00
Xxxxxxxxx Xxxxx, Xxxxxxxxx.
Xxxxxxxxxxxxx 00000-0000
(the
"Mortgagor") and CHICOPEE SAVINGS BANK, a Massachusetts Savings Bank with an
address of 00 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000-0000 (the
"Bank").
The
real
property which is the subject matter of this Mortgage has the following
address(es) 00
Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxxxx 00000 and 00-00 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000
(the
"Address(es)").
1.
MORTGAGE, OBLIGATIONS AND FUTURE ADVANCES
1.1 Mortgage.
For
valuable consideration paid and for other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, the Mortgagor hereby
irrevocably and unconditionally mortgages, grants, bargains, transfers, sells,
conveys, sets over and assigns to the Bank and its successors and assigns
forever, with MORTGAGE COVENANTS, all of Mortgagor's right, title and interest
in and to the "Property" described below, to secure the prompt payment and
performance of the Obligations (as hereinafter defined), including without
limitation, all amounts due and owing to the Bank and all obligations respecting
that certain Adjustable
Term Note,
dated
June
4, 2003,
by
Xxxxx
X Xxxxxxx
in favor
of the Bank in the original principal amount of $272,000.00
(the
"Note"; and collectively, along with all other agreements, documents,
certificates and instruments delivered in connection therewith, the "Loan
Documents"), and any substitutions, modifications, extensions or amendments
to
any of the Loan Documents.
The
amount of principal obligations outstanding and evidenced by the Loan Documents
and secured by this Mortgage total $272,000.00
as of
the date of this Mortgage but this Mortgage shall nevertheless secure payment
and performance of all Obligations.
1.2 Security
Interest in Property.
As
continuing security for the Obligations the Mortgagor hereby pledges, assigns
and grants to the Bank, and its successors and assigns, a security interest
in
any of the Property (as hereinafter defined) constituting personal property
or
fixtures. This Mortgage is and shall be deemed to be a security agreement and
financing statement pursuant to the terms of the Uniform Commercial Code of
Massachusetts (the "Uniform Commercial Code") as to any and all personal
property and fixtures and as to all such property the Bank shall have the rights
and remedies of a secured party under the Uniform Commercial Code in addition
to
its rights hereunder. This Mortgage constitutes a financing statement filed
as a
fixture filing under Chapter 106. Section 9-502(c) of the Massachusetts General
Laws of the Uniform Commercial Code covering any Property which now is or later
may become a fixture.
1.3 Collateral
Assignment of Leases and Rents.
The
Mortgagor hereby irrevocably and unconditionally assigns to the Bank, and its
successors and assigns, as collateral security for the Obligations all of the
Mortgagors rights and benefits under any and all Leases (as hereinafter defined)
and any and all rents and other amounts now or hereafter owing with respect
to
the Leases or the use or occupancy of the Property This collateral assignment
shall be absolute and effective immediately, but (he Mortgagor shall have a
license, revocable by the Bank, to continue to collect rents owing under the
Leases until an Event of Default (as hereinafter defined) occurs and the Bank
exercises its rights and remedies to collect such rents as set forth
herein.
1
1.4 Conditions
to Grant.
To have
and to hold the above granted Property unto and to the use and benefit of the
Bank, and its successors and assigns, forever; provided, however, the
conveyances, grants and assignments contained in this Mortgage are upon the
express condition that, if Mortgagor shall pay and perform the Obligations
in
full, including, without limitation, all principal, interest and premium thereon
and other charges, if applicable, in accordance with the terms and conditions
in
the Loan Documents and this Mortgage, shall pay and perform all other
Obligations as set forth in this Mortgage and shall abide by and comply with
each and every covenant and condition set forth herein and in the Loan
Documents, the conveyances, grants and assignments contained in this Mortgage
shall cease, terminate and be void.
1.5 Property.
The
term "Property," as used in this Mortgage, shall mean that certain parcel of
land and the fixtures, structures and improvements and all personal property
constituting fixtures, as that term is defined in the Uniform Commercial Code,
now or hereafter thereon located at the Address(es), as more particularly
described in Exhibit A attached hereto, together with: (i) all rights now or
hereafter existing, belonging, pertaining or appurtenant thereto; (ii) the
following categories of assets as defined in the Uniform Commercial Code: goods
(including inventory, equipment and any accessions thereto), instruments
(including promissory notes), documents, accounts (including
health-care-insurance receivables), chattel paper (whether tangible or
electronic), deposit accounts, letter-of-credit rights (whether or not the
letter of credit is evidenced by a writing), commercial tort claims, securities
and all other investment property, general intangibles (including payment
intangibles and software), supporting obligations and any and all proceeds
of
any thereof, whether now owned or hereafter acquired, that are located on or
used In connection with, or that arise in whole or in part out of the
Mortgagor's use of or business conducted on or respecting, the Property and
any
substitutions, replacements, accessions and proceeds of any of the foregoing;
(iii) all judgments, awards of damages and settlements hereafter made as a
result or in lieu of any Taking, as hereinafter defined, (iv) all of the rights
and benefits of the Mortgagor under any present or future leases and agreements
relating to the Property, including, without limitation, rents, issues and
profits, or the use or occupancy thereof together with any extensions and
renewals thereof, specifically excluding all duties or obligations of the
Mortgagor of any kind arising thereunder (the "Leases"); and (v) all contracts,
permits and licenses respecting the use. operation or maintenance of the
Property.
1.6 Obligations.
The
term "Obligation(s)," as used in this Mortgage, shall mean without limitation
all loans, advances, indebtedness, notes, liabilities and amounts, liquidated
or
unliquidated, now or hereafter owing by the Mortgagor to the Bank at any time,
of each and every kind, nature and description, whether arising under this
Mortgage or otherwise, and whether secured or unsecured, direct or indirect
(that is. whether the same are due directly by the Mortgagor to the Bank; or
are
due indirectly by the Mortgagor to the Bank as endorser, guarantor or other
surety, or as obligor of obligations due third persons which have been endorsed
or assigned to the Bank, or otherwise), absolute or contingent, due or to become
due, now existing or hereafter contracted, including, without limitation,
payment of all amounts outstanding when due pursuant to the terms of any of
the
Loan Documents. Said term shall also include all interest and other charges
chargeable to the Mortgagor or due from the Mortgagor to the Bank from time
to
time and all costs and expenses referred to in this Mortgage, including without
limitation the costs and expenses (including reasonable attorneys' fees) of
enforcement of the Bank's rights hereunder or pursuant to any document or
instrument executed in connection herewith.
1.7 Cross-Collateral
and Future Advances.
It is
the express intention of the Mortgagor that this Mortgage secure payment and
performance of all of the Obligations, whether now existing or hereinafter
incurred by reason of future advances by the Bank or otherwise, and regardless
of whether such Obligations are or were contemplated by the parties at the
time
of the granting of this Mortgage. Notice of the continuing grant of this
Mortgage shall not be required to be stated on the face of any document
evidencing any of the Obligations, nor shall such documents be required to
otherwise specify that they are secured hereby.
2
2.
REPRESENTATIONS,
WARRANTIES, COVENANTS
2.1 Representations
and Warranties.
The
Mortgagor represents and warrants that:
|
(a)
|
This
Mortgage has been duly executed and delivered by the Mortgagor and
is the
legal, valid and binding obligation of the Mortgagor enforceable
fn
accordance with its terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement
of
creditors' rights generally;
|
|
(b)
|
The
Mortgagor Is the sole legal owner of the Property, holding good and
marketable fee simple title to the Property, subject to no liens,
encumbrances, leases, security interests or rights of others, other
than
as set forth in detail in Exhibit B hereto (the "Permitted
Encumbrances");
|
|
(c)
|
The
Mortgagor is the sole legal owner of the entire lessor’s interest in the L
eases with full power and authority to encumber the Property in the
manner
set forth herein and the Mortgagor has not executed any other assignment
of the Leases or any of the rights or rents arising
thereunder;
|
|
(d)
|
As
of the date hereof, there are no Hazardous Substances (as hereinafter
defined) in, on or under the Property, except as disclosed in writing
to
and acknowledged by the Bank; and
|
|
(e)
|
Each
Obligation Is a commercial obligation and does not represent a loan
used
for personal, family or household purposes and is not a consumer
transaction or otherwise subject to the provisions of the Federal
Truth in
Lending Act, Federal Reserve Board Regulation Z. Massachusetts General
Laws, Chapter 140D, or other such consumer statutes or regulations
and
restrictions.
|
2.2 Recording:
Further Assurances.
The
Mortgagor covenants that it shall, at its sole cost and expense and upon the
request of the Bank, cause this Mortgage, and each amendment, modification
or
supplement hereto, to be recorded and filed in such manner and in such places,
and shall at all times comply with all such statutes and regulations as may
be
required by law in order to establish, preserve and protect the Interest of
the
Bank in the Property and the rights of the Bank under this Mortgage. Mortgagor
will from time to time execute and deliver to the Bank, and take or cause to
be
taken, all such other further action as the Bank may request in order to effect
and confirm or vest more securely in the Bank all rights contemplated by this
Mortgage or to vest more fully in, or assure to the Bank the security interest
in, the Property or to comply with applicable statute or law. To the extent
permitted by applicable law, Mortgagor authorizes the Bank to file financing
statements, continuation statements or amendments without Mortgagor's signature
appearing thereon, and any such financing statements, continuation statements
or
amendments may be signed or authenticated by the Bank on behalf of Mortgagor,
if
necessary, and may be filed at any time In any jurisdiction. The Bank may at
any
time and from time to time file financing statements, continuation statements
and amendments thereto that describe the Property as "all assets of Mortgagor"
or words of similar effect and which contain any other information required
by
Article 9 of the Uniform Commercial Code for the sufficiency or filing office
acceptance of any financing statement, continuation statement or amendment,
including whether Mortgagor is an organization, the type of organization and
any
organization identification number issued to Mortgagor; Mortgagor also
authorizes the Bank to file financing statements describing any agricultural
liens or other statutory liens held by the Bank. Mortgagor agrees to furnish
any
such information to the Bank promptly upon request, fn addition, Mortgagor
shall
at any time and from time to time, take such steps as the Bank may reasonably
request for the Bank (i) to obtain an acknowledgement, in form and substance
satisfactory to the Bank, of any bailee having possession of any of the Property
that the bailee holds such Property for the Bank, (ii) to obtain "control"
of
any investment property, deposit accounts, letter-of-credit rights or electronic
chattel paper (as such terms are defined in Article 9 of the Uniform Commercial
Code relating to what constitutes "control" for such items of Property), with
any agreements establishing control to be in form and substance satisfactory
to
the Bank, and (iii) otherwise to insure the continued perfection and priority
of
the Bank's security interest in any of the Property and the preservation of
its
rights therein. Mortgagor hereby constitutes the Bank its attorney-in-fact
to
execute and file all filings required or so requested for the foregoing
purposes, all acts of such attorney being hereby ratified and confirmed; and
such power, being coupled with an interest, shall be irrevocable until this
Mortgage terminates in accordance with its terms, all Obligations are paid
in
full and the Property is released.
3
2.3 Restrictions
on the Mortgagor.
The
Mortgagor covenants that it will not, nor will it permit any other person lo,
directly or indirectly, without the prior written approval of the Bank in each
instance:
|
(a)
|
Sell,
convey, assign, transfer, mortgage, pledge, hypothecate, lease or
dispose
of all or any part of any legal or beneficial interest in the Mortgagor
or
the Property or any part thereof or permit any of the foregoing,
except as
expressly permitted by the terms of this
Mortgage;
|
|
(b)
|
Permit
the use. generation, treatment, storage, release or disposition of
any oil
or other material or substance constituting hazardous waste or hazardous
materials or substances under any applicable Federal or state law.
regulation or rule ("Hazardous Substances");
or
|
|
(c)
|
Permit
lo be created or suffer to exist any mortgage, lien, security interest,
attachment or other encumbrance or charge on the Property or any
part
thereof or interest therein (except for the Permitted Encumbrances),
including, without limitation, (i) any lien arising under any Federal,
state or local statute, rule, regulation or law pertaining to the
release
or cleanup of Hazardous Substances and (ii) any mechanics' or
materialmen's lien. The Mortgagor further agrees to give the Bank
prompt
written notice of the imposition, or notice, of any lien referred
to in
this Section and to take any action necessary to secure the prompt
discharge or release of the same. The Mortgagor agrees to defend
its title
to the Property and the Bank's interest therein against the claims
of all
persons and, unless the Bank requests otherwise, to appear in and
diligently contest. all he Mortgagor's sole cost and expense, any
action
or proceeding that purports to affect the Mortgagor's title to the
Property or the priority or validity of this Mortgage or the Bank's
interest hereunder.
|
2.4 Operation
of Property.
The
Mortgagor covenants and agrees as follows:
|
(a)
|
The
Mortgagor will not permit the Property to be used for any unlawful
or
improper purpose, will at all times comply with all Federal, state
and
local laws, ordinances and regulations, and the provisions of any
Lease,
easement or other agreement affecting all or any part of the Property,
and
will obtain and maintain all governmental or other approvals relating
to
the Mortgagor, the Property or the use thereof, including without
limitation, any applicable zoning or building codes or regulations
and any
laws or regulations relating to the handling, storage, release or
cleanup
of Hazardous Substances, and will give prompt written notice to the
Bank
of (i) any violation of any such law. ordinance or regulation by
the
Mortgagor or relating to the Property, (ii) receipt of notice from
any
Federal, state or local authority alleging any such violation and
(iii)
the presence or release on the Property of any Hazardous
Substances;
|
|
(b)
|
The
Mortgagor will at all times keep the Property insured for such losses
or
damage, in such amounts and by such companies as may be required
by law or
which the Bank may require, provided that, in any case, the Mortgagor
shall maintain: (i) physical hazard insurance on an "all risks" basis
in
an amount not less than 100% of the full replacement cost of the
Property;
(ii) flood insurance if and as required by applicable Federal law
and as
otherwise required by the Bank; (iii) comprehensive commercial general
liability insurance; (iv) rent loss and business interruption insurance;
and (v) such other insurance as the Bank may require from time to
time,
including builder's risk insurance in the case of construction loans.
All
policies regarding such insurance shall be issued by companies licensed
to
do business in the state where the policy is issued and also in the
slate
where the Property is located, be otherwise acceptable to the Bank,
provide deductible amounts acceptable to the Bank, name the Bank
as
mortgagee, loss payee and additional insured, and provide that no
cancellation or material modification of such policies shall occur
without
at least thirty (30) days' prior written notice to the Bank. Such
policies
shall Include (i) a mortgage endorsement determined by the Bank in
good
faith to be equivalent to the "standard" mortgage endorsement so
that the
insurance, as to the interest of the Bank, shall not be invalidated
by any
act or neglect of the Mortgagor or the owner of the Property, any
foreclosure or other proceedings or notice of sale relating to the
Property, any change in the title to or ownership of the Property,
or the
occupation or use of the Property for purposes more hazardous than
are
permitted at the date of inception of such insurance policies; (ii)
a
replacement cost endorsement; (iii) an agreed amount endorsement;
(iv) a
contingent liability from operation endorsement; and (v) such other
endorsements as the Bank may request. The Mortgagor will furnish
to the
Bank upon request such original policies, certificates of insurance
or
other evidence of the foregoing as are acceptable to the Bank. The
terms
of all insurance policies shall be such that no coinsurance provisions
apply, or if a policy does contain a coinsurance provision, the Mortgagor
s hall insure t he Property in an amount sufficient to prevent the
application of the coinsurance
provisions;
|
4
|
(c)
|
Mortgagor
will not enter into or modify the Leases without the prior written
consent
of the Bank, execute any assignment of the Leases except in favor
of the
Bank, or accept any rentals under any Lease for more than one month
in
advance and will at all times perform and fulfill every term and
condition
of the Leases;
|
|
(d)
|
Mortgagor
will at all times (i) maintain complete and accurate records and
books
regarding the Property in accordance with generally accepted accounting
principles and (ii) permit the Bank and the Bank's agents, employees
and
representatives, at such reasonable times as the Bank may request,
to
enter and inspect the Property and such books and records;
and
|
|
(e)
|
Mortgagor
will at all times keep the Property in good and first-rate repair
and
condition (damage from casualty not excepted) and will not commit
or
permit any strip, waste, impairment, deterioration or alteration
of the
Property or any part thereof.
|
2.5 Payments.
The
Mortgagor covenants to pay when due: all Federal, state, municipal or other
taxes, betterment and improvement assessments and other governmental levies,
water rates, sewer charges, insurance premiums and other charges on the
Property, this Mortgage or any Obligation secured hereby that could, if unpaid,
result in a lien on the Property or on any interest therein. If and when
requested by the Bank, the Mortgagor shall deposit from time to time with the
Bank sums determined by the Bank to be sufficient to pay when due the amounts
referred to in this Section. The Mortgagor shall have the right to contest
any
notice, lien, encumbrance, claim, tax, charge, betterment assessment or premium
filed or asserted against or relating to the Property, provided that it contests
the same diligently and in good faith and by proper proceedings and, at the
Bank's request, provides the Bank with adequate cash security, in the Bank's
reasonable judgment, against the enforcement thereof. The Mortgagor shall
furnish to the Bank the receipted real estate tax bills or other evidence of
payment of real estate taxes for the Property within thirty (30) days prior
to
the date from which interest or penalty would accrue for nonpayment thereof.
The
Mortgagor shall also furnish to the Bank evidence of all other payments referred
to above within fifteen (15) days after written request therefor by the
Bank.
2.6
Notices;
Notice of Default.
The
Mortgagor will deliver to the Bank, promptly upon receipt of the same, copies
of
all notices or other documents it receives that affect the Property or its
use,
or claim that the Mortgagor is in default in the performance or observance
of
any of the terms hereof or that the Mortgagor or any tenant is in default of
any
terms of the Leases. The Mortgagor further agrees to deliver to the Bank written
notice promptly upon the occurrence of any Event of Default hereunder or event
that with the giving of notice or lapse of time, or both, would constitute
an
Event of Default hereunder.
2.7 Takings.
In case
of any condemnation or expropriation for public use of, or any damage by reason
of the action of any public or governmental entity or authority to, all or
any
part of the Property (a "Taking"), or the commencement of any proceedings or
negotiations that might result in a Taking, the Mortgagor shall promptly give
written notice to the Bank, describing the nature and extent thereof. The Bank
may, at its option, appear in any proceeding for a Taking or any negotiations
relating to a Taking and the Mortgagor shall promptly give to the Bank copies
of
all notices, pleadings, determinations and other papers relating thereto. The
Mortgagor shall in good faith and with due diligence and by proper proceedings
file and prosecute its claims for any award or payment on account of any Taking.
The Mortgagor shall not settle any such claim without the Bank's prior written
consent. The Mortgagor shall hold any amounts received with respect to such
awards or claims, by settlement, judicial decree or otherwise, in trust for
the
Bank and promptly pay the same to the Bank. The Mortgagor authorizes any award
or settlement due in connection with a Taking to be paid directly to the Bank
in
amounts not exceeding the Obligations. The Bank may apply such amounts to the
Obligations in such order as the Bank may determine.
2.8 Insurance
Proceeds.
The
proceeds of any insurance resulting from any loss with respect to the Property
shall be paid to the Bank and. at the option of the Bank, be applied to the
Obligations in such order as the Bank may determine; provided, however, that
if
the Bank shall require repair of the Property, the Bank may release all or
any
portion of such proceeds to the Mortgagor for such purpose. Any insurance
proceeds paid to the Mortgagor shall be held in trust for the Bank and promptly
paid to it.
5
3.
CERTAIN
RIGHTS OF THE BANK
3.1 Legal
Proceedings.
The
Bank shall have the right, but not the duty, to intervene or otherwise
participate in any legal or equitable proceeding that, in the Bank's reasonable
judgment, might affect the Property or any of the rights created or secured
by
this Mortgage. The Bank shall have such right whether or not there shall have
occurred an Event of Default hereunder.
3.2
Appraisals/Assessments.
The
Bank shall have the right, at the Mortgagor's sole cost and expense, to obtain
appraisals, environmental site assessments or other inspections of the portions
of the Property that are real estate at such times as the Bank deems necessary
or as may be required by applicable law, or its prevailing credit or
underwriting policies.
3.3 Financial
Statements.
The
Bank shall have the right, at the Mortgagor's sole cost and expense, to require
delivery of financial statements in form and substance acceptable to the Bank
from the Mortgagor or any guarantor of any of the Obligations and the Mortgagor
hereby agrees to deliver such financial statements and/or cause any such
guarantor lo so deliver any such financial statement when required by the
Bank.
3.4 Tax
Return.
The
Mortgagor shall deliver to the Bank on or before May 1 of each year or such
other date approved by the Bank, the Mortgagor's filed Federal and any
applicable state tax returns for the prior year.
3.5 Leases
and Rent Roll.
The
Mortgagor shall deliver to the Bank during each calendar year and at such other
times as the Bank shall request a rent roll for the Property, in form acceptable
to the Bank, listing all tenants and occupants and describing all of the
Leases.
4.
DEFAULTS AND REMEDIES
4.1 Events
of Default.
Event
of Default shall mean the occurrence of any one or more of the following
events:
|
(a)
|
default
of any liability, obligation or undertaking of the Mortgagor or any
guarantor of the Obligations to the Bank, hereunder or otherwise,
including failure to pay in full and when due any installment of
principal
or interest or default of the Mortgagor or any guarantor of the
Obligations under any other Loan
Document;
|
|
(b)
|
failure
by the Mortgagor to perform, observe or comply with any of the covenants,
agreements, terms or conditions set forth in this
Mortgage;
|
|
(c)
|
the
(i) occurrence of any material loss, theft, damage or destruction
of. or
(ii) issuance or making of any levy, seizure, attachment, execution
or
similar process on a material portion of the
Property;
|
|
(d)
|
failure
of the Mortgagor or any guarantor of the Obligations to maintain
aggregate
collateral security value satisfactory to the
Bank;
|
|
(e)
|
default
of any material liability, obligation or undertaking of the Mortgagor
or
any guarantor of the Obligations to any other
party;
|
|
(f)
|
if
any statement, representation or warranty heretofore, now or hereafter
made by the Mortgagor or any guarantor of the Obligations in connection
with this Mortgage or in any supporting financial statement of the
Mortgagor or any guarantor of the Obligations shall be determined
by the
Bank to have been false in any material respect when
made;
|
6
|
(g)
|
if
the Mortgagor or any guarantor of the Obligations is a corporation,
trust,
partnership or limited liability company, the liquidation, termination
or
dissolution of any such organization, or the merger or consolidation
of
such organization into another entity, or its ceasing to carry on
actively
its present business or the appointment of a receiver for its
property;
|
|
(h)
|
the
death of the Mortgagor or any guarantor of the Obligations and, if
the
Mortgagor or any guarantor of the Obligations is a partnership or
limited
liability company, the death of any partner or
member;
|
|
(i)
|
the
institution by or against the Mortgagor or any guarantor of the
Obligations of any proceedings under the Bankruptcy Code 11 USC §101
et
seq.
or
any other law in which the Mortgagor or any guarantor of the Obligations
is alleged to be insolvent or unable to pay its debts as they mature,
or
the making by the Mortgagor or any guarantor of the Obligations of
an
assignment for the benefit of creditors or the granting by the Mortgagor
or any guarantor of the Obligations of a trust mortgage for the benefit
of
creditors;
|
|
(j)
|
the
service upon the Bank of a writ in which the Bank is named as trustee
of
the Mortgagor or any guarantor of the
Obligations;
|
|
(k)
|
a
judgment or judgments for the payment of money shall be rendered
against
the Mortgagor or any guarantor of the Obligations, and any such judgment
shall remain unsatisfied and in effect for any period of thirty (30)
consecutive days without a stay of
execution;
|
|
(l)
|
any
xxxx, xxxx (including mechanics lien), seizure, attachment, execution
or
similar process shall be issued or levied on any of the property
of the
Mortgagor or any guarantor of the
Obligations;
|
(m)
the
termination of any guaranty of the Obligations; or
|
(n)
|
the
occurrence of such a change in the condition or affairs (financial
or
otherwise) of the Mortgagor or any guarantor of the Obligations,
or the
occurrence of any other event or circumstance, such that the Bank,
in its
sole discretion, deems that it is insecure or that the prospects
for
timely or full payment or performance of any obligation of the Mortgagor
or any guarantor of the Obligations to the Bank has been or may be
impaired.
|
4.2
Remedies.
On the
occurrence of any Event of Default the Bank may, at any time thereafter, at
its
option and, to the extent permitted by applicable law, without notice, exercise
any or all of the following remedies:
| (a) |
Declare
the Obligations due and payable, and the Obligations shall thereupon
become immediately due and payable, without presentment, protest,
demand
or notice of any kind, all of which are hereby expressly waived by
the
Mortgagor except for Obligations due and payable on demand, which
shall be
due and payable on demand whether or not an event of default has
occurred
hereunder;
|
| (b) |
Enter,
take possession of, manage and operate the Property (including all
personal property and all records and documents pertaining thereto)
and
any part thereof and exclude the Mortgagor therefrom, take all actions
it
deems necessary or proper to preserve the Property and operate the
Property as a mortgagee in possession with all the powers as could
be
exercised by a receiver or as otherwise provided herein or by applicable
law; provided, however, the entry by the Bank upon the Property for
any
reason shall not cause the Bank to be a mortgagee in possession,
except
upon the express written declaration of the
Bank;
|
| (c) |
With
or without taking possession, receive and collect all rents, income,
issues and profits ("Rents") from the Property (including all real
estate
and personal property and whether past due or thereafter accruing),
including as may arise under the Leases, and the Mortgagor appoints
the
Bank as its true and lawful attorney with the power for the Bank
in its
own name and capacity to demand and collect Rents and take any action
that
the Mortgagor is authorized to take under the Leases. The Bank shall
(after payment of all costs and expenses incurred) apply any Rents
received by it to the Obligations in such order as the Bank determines,
or
in accordance with any applicable statute, and the Mortgagor agrees
that
exercise of such rights and disposition of such funds shall not be
deemed
to cure any default or constitute a waiver of any foreclosure once
commenced nor preclude the later commencement of foreclosure for
breach
thereof. The Bank shall be liable to account only for such Rents
actually
received by the Bank. Lessees under the Leases are hereby authorized
and
directed, following notice from the Bank, to pay all amounts due
the
Mortgagor under the Leases to the Bank, whereupon such lessees shall
be
relieved of any and all duty and obligation to the Mortgagor with
respect
to such payments so made;
|
7
| (d) |
Sell
the Property or any part thereof or interest therein pursuant to
exercise
of its STATUTORY POWER OF SALE or otherwise at public auction on
terms and
conditions as the Bank may determine, or otherwise foreclose this
Mortgage
in any manner permitted by law. and upon such sale the Mortgagor
shall
execute and deliver such instruments as the Bank may request in order
to
convey and transfer all of the Mortgagor's interest in the Property,
and
the same shall operate to divest all rights, title and interest of
the
Mortgagor in and to the Property. In the event this Mortgage shall
include
more than one parcel of property or subdivision (each hereinafter
called a
"portion"), the Bank shall, in its sole and exclusive discretion,
be
empowered to foreclose upon any such portion without impairing its
right
to foreclose subsequently upon any other portion or the entirety
of the
Property from time to time thereafter. I n addition, the Bank may
in its
discretion subordinate this Mortgage to one or more Leases for the
sole
purpose of preserving any such Lease in the event of a
foreclosure;
|
| (e) |
Cause
one or more environmental assessments to be taken, arrange for the
cleanup
of any Hazardous Substances or otherwise cure the Mortgagor's failure
to
comply with any statute, regulation or ordinance relating to the
presence
or cleanup of Hazardous Substances, and the Mortgagor shall provide
the
Bank or its agents with access to the Property for such purposes;
provided
that the exercise of any of such remedies shall not be deemed to
have
relieved the Mortgagor from any responsibility therefor or given
the Bank
"control" over the Property or cause the Bank to be considered to
be a
mortgagee in possession, "owner" or "operator" of the Property for
purposes of any applicable law, rule or regulation pertaining to
Hazardous
Substances; and
|
This
Mortgage is upon the STATUTORY CONDITION, for any breach of which the Bank
shall
have the STATUTORY POWER OF SALE.
In
addition, the Bank shall have all other remedies provided by applicable law,
including, without limitation, the right to pursue a judicial sale of the
Property or any portion thereof by deed, assignment or otherwise.
The
Mortgagor agrees and acknowledges that the acceptance by the Bank of any
payments from either the Mortgagor or any guarantor after the occurrence of
any
Event of Default, the exercise by the Bank of any remedy set forth herein or
the
commencement, discontinuance or abandonment of foreclosure proceedings against
the Property shall not waive the Bank's subsequent or concurrent right to
foreclose or operate as a bar or estoppel to the exercise of any other rights
or
remedies of the Bank. The Mortgagor agrees and acknowledges that the Bank,
by
making payments or incurring costs described herein, shall be subrogated to
any
right of the Mortgagor to seek reimbursement from any third parties, including,
without limitation, any predecessor in interest to the Mortgagor's title or
other party who may be responsible under any law, regulation or ordinance
relating to the presence or cleanup of Hazardous Substances.
4.3 Advances.
If the
Mortgagor fails to pay or perform any of its obligations respecting the
Property, the Bank may in its sole discretion do so without waiving or releasing
Mortgagor from any such obligation. Any such payments may include, but are
not
limited to, payments for taxes, assessments and other governmental levies,
water
rates, insurance premiums, maintenance, repairs or improvements constituting
part of the Property. Any amounts paid by the Bank hereunder shall be, until
paid, part of the Obligations and secured by this Mortgage, and shall be due
and
payable to the Bank, on demand, together with interest thereon to the
extent permitted by applicable law, at the highest rate permitted under the
Note.
8
4.4 Cumulative
Rights and Remedies.
All of
the foregoing rights, remedies and options (including without limitation the
right to enter and take possession of the Property, the right to manage and
operate the same, and the right to collect Rents, in each case whether by a
receiver or otherwise) are cumulative and in addition to any rights the Bank
might otherwise have, whether at law or by agreement, and may be exercised
separately or concurrently and none of which shall be exclusive of any other.
The Mortgagor further agrees that the Bank may exercise any or all of its rights
or remedies set forth herein without having to pay the Mortgagor any sums for
use or occupancy of the Property.
4.5 Mortgagor's
Waiver of Certain Rights.
To the
extent permitted by applicable law, the Mortgagor hereby waives the benefit
of
all present and future laws (i) providing for any appraisal before sale of
all
or any portion of the Property or (ii) in any way extending the time for the
enforcement of the collection of the Obligations or creating or extending a
period of redemption from any sale made hereunder.
5.
MISCELLANEOUS
5.1 Costs
and Expenses.
To the
extent permitted by applicable law, the Mortgagor shall pay to the Bank, on
demand, all reasonable expenses (including attorneys' fees and expenses and
reasonable consulting, accounting, appraisal, brokerage and similar professional
fees and charges) incurred by the Bank in connection with the Bank's
interpretation, exercise, preservation or enforcement of any of its rights,
remedies and options set forth in this Mortgage and in connection with any
litigation, proceeding or dispute whether arising hereunder or otherwise
relating to the Obligations, together with interest thereon to the extent
permitted by applicable law, until paid in full by the Mortgagor at the highest
rate set forth in the Note. Any amounts owed by the Mortgagor hereunder shall
be, until paid, part of the Obligations and secured by this Mortgage, and the
Bank shall be entitled, to the extent permitted by law. to receive and retain
such amounts in any action for a deficiency against or redemption by the
Mortgagor, or any accounting for the proceeds of a foreclosure sale or of
insurance proceeds.
5.2 Indemnification
Regarding Leases.
The
Mortgagor hereby agrees to defend, and does hereby indemnify and hold the Bank
and each of its directors, officers, employees, agents and attorneys (each
an
"Indemnitee") harmless from all losses, damages, claims, costs or expenses
(including attorneys' fees and expenses) resulting from the assignment of the
Leases and from all demands that may be asserted against such Indemnitees
arising from any undertakings on the part of the Bank to perform any obligations
under the Leases. It is understood that the assignment of the Leases shall
not
operate to place responsibility for the control or management of the Property
upon the Bank or any Indemnitee or make them liable for performance of any
of
the obligations of the Mortgagor under Leases, respecting any condition of
the
Property or any other agreement or arrangement, written or oral, or applicable
law.
5.3 Indemnification
Regarding Hazardous Substances.
The
Mortgagor hereby agrees to defend, and does hereby indemnify and hold harmless
each Indemnitee from and against any and all losses, damages, claims, costs
or
expenses, including, without limitation, litigation costs and attorneys' fees
and expenses and fees or expenses of any environmental engineering or cleanup
firm incurred by such Indemnitee and arising out of or in connection with the
Property or resulting from the application of any current or future law,
regulation or ordinance relating to the presence or cleanup of Hazardous
Substances on or affecting the Property. The Mortgagor agrees its obligations
hereunder shall be continuous and shall survive termination or discharge of
this
Mortgage and/or the repayment of all debts to the Bank including repayment
of
all Obligations.
5.4 Indemnitee's
Expenses.
If any
Indemnitee is made a party defendant to any litigation or any claim is
threatened or brought against such Indemnitee concerning this Mortgage or the
Property or any part thereof or therein or concerning the construction,
maintenance, operation or the occupancy or use thereof by the Mortgagor or
other
person or entity, then the Mortgagor shall indemnify, defend and hold each
Indemnitee harmless from and against all liability by reason of said litigation
or claims, including attorneys' fees and expenses incurred by such Indemnitee
in
connection with any such litigation or claim, whether or not any such litigation
or claim is prosecuted to judgment. The within indemnification shall survive
payment of the Obligations, and/or any termination, release or discharge
executed by the Bank in favor of the Mortgagor.
5.5 Waivers.
The
Mortgagor waives notice of nonpayment, demand, presentment, protest or notice
of
protest o f t he Obligations and all other notices, consents to any renewals
or
extensions of time of payment thereof, and generally waives any and all
suretyship defenses and defenses in the nature thereof. No delay or omission
of
the Bank in exercising or enforcing any of its rights, powers, privileges,
remedies, immunities or discretion (all of which are hereinafter collectively
referred to as "the Bank's rights and remedies") hereunder shall constitute
a
waiver thereof; and no waiver by the Bank of any default of the Mortgagor
hereunder or of any demand shall operate as a waiver of any other default
hereunder or of any other demand. No term or provision hereof shall be waived,
altered or modified except with the prior written consent of the Bank, which
consent makes explicit reference to this Mortgage. Except as provided in
the preceding sentence, no other agreement or transaction, of whatsoever nature,
entered into between the Bank and the Mortgagor at any time (whether before,
during or after the effective date or term of this Mortgage) shall be construed
as a waiver, modification or limitation of any of the Bank's rights and remedies
under this Mortgage (nor shall anything in this Mortgage be construed as a
waiver, modification or limitation of any of the Bank's rights and remedies
under any such other agreement or transaction) but all the Bank's rights and
remedies not only under the provisions of this Mortgage but also under any
such
other agreement or transaction shall be cumulative and not alternative or
exclusive, and may be exercised by the Bank at such time or times and in such
order of preference as the Bank in its sole discretion may
determine.
9
5.6 Waiver
of Homestead.
To the
maximum extent permitted under applicable law, the Mortgagor hereby waives
and
terminates any homestead rights and/or exemptions respecting the Property under
the provisions of any applicable homestead laws, including without limitation.
Chapter 188, Section 1, of the General Laws of Massachusetts.
5.7 Severability.
If any
provision of this Mortgage or portion of such provision or the application
thereof to any person or circumstance shall to any extent be held Invalid or
unenforceable, the remainder of this Mortgage (or the remainder of such
provision) and the application thereof to other persons or circumstances shall
not be affected thereby.
5.8 Complete
Agreement.
This
Mortgage and the other Loan Documents constitute the entire agreement and
understanding between and among the parties hereto relating to the subject
matter hereof, and supersedes all prior proposals, negotiations, agreements
and
understandings among the parties hereto with respect to such subject
matter.
5.9 Binding
Effect of Agreement.
This
Mortgage shall run with the land and be binding upon and inure to the
benefit of the respective heirs, executors, administrators, legal
representatives, successors and assigns of the parties hereto, and shall remain
in full force and effect (and the Bank shall be entitled to rely thereon) until
all Obligations are fully and indefeasibly paid. The Bank may transfer and
assign this Mortgage and deliver any collateral to t he assignee, who shall
thereupon have all of the rights of the Bank; and the Bank shall then be
relieved and discharged of any responsibility or liability with respect to
this
Mortgage and such collateral. Except as expressly provided herein or in the
other Loan Documents, nothing, expressed or implied, is intended to confer
upon
any party, other than the parties hereto, any rights, remedies, obligations
or
liabilities under or by reason of this Mortgage or the other Loan
Documents.
5.10 Notices.
Any
notices under or pursuant to this Mortgage shall be deemed duly received and
effective if delivered in hand to any officer of agent of the Mortgagor or
the
Bank, or if mailed by registered or certified mail, return receipt requested,
addressed to the Mortgagor or the Bank at the address set forth in this Mortgage
or as any party may from time to time designate by written notice to the other
party.
5.11 Governing
Law.
This
Mortgage shall be governed by Massachusetts law without giving effect to the
conflicts of laws principles thereof.
5.12 Reproductions.
This
Mortgage and all documents which have been or may be hereinafter furnished
by
the Mortgagor to the Bank may be reproduced by the Bank by any photographic,
photostatic, microfilm, xerographic or similar process, and any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made in the regular course
of
business).
5.13 Jurisdiction
and Venue.
The
Mortgagor irrevocably submits to the nonexclusive jurisdiction of any Federal
or
state court sitting in Massachusetts, over any suit, action or proceeding
arising out of or relating to this Mortgage. The Mortgagor irrevocably waives,
to the fullest extent it may effectively do so under applicable law, any
objection it may now or hereafter have to the laying of the venue of any such
suit, action or proceeding brought in any such court and any claim that the
same
has been brought in an inconvenient forum. The Mortgagor hereby consents to
process being served in any such suit, action or proceeding (i) by the mailing
of a copy thereof by registered or certified mail, postage prepaid, return
receipt requested, to the Mortgagor's address set forth herein or such other
address as has been provided in writing to the Bank and (ii) in any other manner
permitted by law, and agrees that such service shall in every respect be deemed
effective service upon the Mortgagor.
5.14 JURY
WAIVER.
THE MORTGAGOR AND THE BANK EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY,
AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, (A) WAIVE ANY AND ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
IN CONNECTION WITH THIS MORTGAGE, THE OBLIGATIONS, ALL MATTERS CONTEMPLATED
HEREBY AND DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND (B) AGREE NOT TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CAN
NOT
BE, OR HAS NOT BEEN WAIVED. THE MORTGAGOR CERTIFIES THAT
NEITHER THE
BANK NOR ANY OF ITS REPRESENTATIVES, AGENTS OR COUNSEL HAS
REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT THE BANK WOULD NOT IN THE EVENT OF ANY
SUCH PROCEEDING
SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY JURY.
10
EXECUTED
under seal as of the date first above written.
Witness:
Mortgagor:
/s/
Xxxxxxx X. Xxxxxx
/s/
Xxxxx X. Xxxxxxx
Xxxxxxx
X. Xxxxxx Xxxxx
X.
Xxxxxxx
COMMONWEALTH
OF MASSACHUSETTS
HAMPDEN,
SS. June
4,
2003
Then
personally appeared the above-named Xxxxx
X Xxxxxxx,
and
acknowledged the foregoing instrument to be the free act and deed of
Xxxxx
X Xxxxxxx,
before
me,
/s/
Xxxxxxx X. Xxxxxx, NOTARY PUBLIC
MY
COMMISSION EXPIRES: 05/27/05
Xxxxxxx
X. Xxxxxx
TYPE
OR
PRINT NAME
11
