EXHIBIT 10.7
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MORTGAGE AND SECURITY AGREEMENT
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KNOW ALL MEN BY THESE PRESENTS that PRESSTEK, INC., a Delaware
corporation having its principal office at 0 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxx
Xxxxxxxxx 00000 (hereinafter collectively with its successors, legal
representatives, and assigns referred to as "Mortgagor") for consideration paid
by CITIZENS BANK NEW HAMPSHIRE, a New Hampshire guaranty savings bank having an
office at 000 Xxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxxxxx 00000 (hereinafter
collectively with its successors, legal representatives, assigns and
participants, if any, referred to as "Mortgagee"), the receipt and sufficiency
of which Mortgagor does hereby acknowledge, hereby grants, bargains, sells,
conveys and assigns to Mortgagee, with MORTGAGE COVENANTS:
The premises located in Hudson, County of Hillsborough, New Hampshire,
as more particularly described in Schedule A attached hereto and made a part
hereof, together with all buildings, structures, replacements, and other
improvements now or hereafter situated thereon, together with all rents, issues,
profits, privileges, easements, rights of way, licenses, appurtenances, and
other appurtenant rights thereto; all right, title and interest of Mortgagor in
and to the land lying within any street or roadway adjoining the subject
property; all right, title and interest of Mortgagor in and to any vacated or
hereafter vacated streets or roads adjoining the subject property; and all
right, title and interest of Mortgagor in and to all air and riparian rights
associated with, belonging to or inuring to the benefit of the subject property
(all of the foregoing collectively, the "Premises");
AND transfers, assigns, sets over and grants a first priority security
interest in the following (collectively, the "Personal Property");
(1) All fixtures, machinery and all other tangible personal property
used in the buildings and other improvements on the Premises, now or hereafter
owned by the Mortgagor and now affixed or to be affixed to, or now or hereafter
located upon, the Premises, including all appurtenant easements. The foregoing
shall include, without limitation, all machinery, plant, plumbing, heating,
lighting, refrigerating, ventilating and air conditioning apparatus and
equipment, elevators and elevator machinery, boilers, tanks, motors, sprinkler
and fire extinguishing systems, alarm systems, screens, awnings, screen doors,
storm and other detachable windows and doors, perennial flowers, signage, and
other equipment, machinery, furniture and furnishings, fixtures, and articles of
personal property now and hereafter owned by the Mortgagor and now and hereafter
affixed to, placed upon or used in connection with the operation of the
Premises, and all other purposes whether or not included in the foregoing
enumeration, together with cash proceeds and non-cash proceeds of all of the
foregoing, all of which are covered by this Mortgage, whether or not such
property is subject to prior conditional sales agreements, chattel mortgages or
other liens, excepting inventory and personal property to be consumed or sold in
the normal course of business of the Mortgagor. If the lien hereof on any
fixtures or personal property is subject to a conditional sales agreement or
chattel mortgage or security agreement covering such property, then upon the
occurrence of an Event of Default hereunder all the rights, title and interest
of the Mortgagor in and to any and all deposits made
thereon or therefor are hereby assigned to the Mortgagee, together with the
benefit of any payments now or hereafter made thereon. There are also
transferred, set over and assigned to the Mortgagee, its successors and assigns,
all conditional sales agreements, leases, and use agreements of machinery,
equipment and other personal property of the Mortgagor in the categories
hereinabove set forth and now and hereafter affixed to, placed upon or used in
connection with the operation of the Premises under which the Mortgagor is the
owner, lessee, or licensee of, and the Mortgagor agrees to execute and deliver
to the Mortgagee specific separate assignments thereof to the Mortgagee of such
leases and agreements when requested by the Mortgagee; and nothing herein shall
obligate the Mortgagee to perform any obligations of the Mortgagor under such
leases or agreements, unless it so chooses, which obligations the Mortgagor
hereby covenants and agrees to well and punctually perform;
(2) All of the Mortgagor's right, title and interest in and to any
governmental approvals, licenses, franchises, permits, grants, etc. with respect
to the Premises, including, but not limited to, all approvals, licenses, and
permits for the use and occupancy of the Premises, to the extent permitted by
law;
(3) All eminent domain awards made and insurance proceeds paid with
respect to the Premises;
(4) All books, records, contracts, management contracts, and other
general intangibles relating to Mortgagor's operation of the Premises;
(5) All plans, specifications, contracts, warranties and survey plans
relating to the construction, use or occupancy of the Premises;
(6) Any and all additions, accessions, substitutions or replacements to
or for any of the foregoing;
(7) Any and all products and proceeds of any or all of the foregoing,
including, without limitation, cash and cash equivalents, tax refunds and the
proceeds, including interest, of insurance policies providing coverage against
the loss or destruction of or damage to any of such collateral;
(8) All of the Mortgagor's after-acquired property of the kinds and
types described in the foregoing paragraphs;
(9) All rents, instruments, security deposits, issues and profits,
revenues, royalties, bonuses, rights and benefits under any and all leases or
tenancies now existing or hereafter created with respect to the Premises or any
part thereof; and
(10) All judgments, awards of damages, insurance proceeds and
settlements hereafter made as a result or in lieu of any taking of the Premises
or any interest therein or part thereof under the power of eminent domain or for
any damage or casualty (whether caused by such taking or otherwise) to the
Premises or any part thereof, including any award for change of grade of
streets;
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(collectively, the Premises and the Personal Property are hereinafter sometimes
referred to as the "Mortgaged Property");
FOR THE PURPOSE OF SECURING the following obligations of Mortgagor to
Mortgagee:
(1) Payment of (a) the principal sum of Four Million and 00/100 Dollars
($4,000,000.00) (the "Loan"), or so much thereof as may be advanced pursuant and
subject to the terms and conditions of the Loan Agreement dated December 18,
1996, by and between the Mortgagor and the Mortgagee, as amended by Amendment to
Loan Agreement and Related Documents of even date herewith (as such agreement
may be amended and/or restated from time to time hereafter, the "Loan
Agreement"), together with interest and other charges thereon as provided in the
Mortgagor's promissory note of even date evidencing such Loan (such note,
together with any subsequent extensions, renewals, modifications, substitutions
or replacements thereof, is hereinafter referred to as the "Note");
(2) Payment of such sums expended or advanced by Mortgagee in
accordance herewith to protect the security, priority or validity of this
Mortgage; and
(3) Due, prompt and complete observance, performance, fulfillment and
discharge by Mortgagor of each and every obligation, covenant, condition,
warranty, agreement and representation contained in the Note, this Mortgage, the
Loan Agreement, Mortgagor's assignment of leases and rents respecting the
Premises, and any other document, instrument or agreement given by Mortgagor as
additional security for the payment of the indebtedness hereby secured, or
otherwise executed in connection therewith (all of the foregoing, together with
any extensions, renewals, modifications, amendments, substitutions or
replacements thereof, are hereinafter collectively referred to as the "Loan
Documents").
PROVIDED, NEVERTHELESS, that this Mortgage is granted upon the express
condition, that if the Mortgagor pays to the Mortgagee all amounts due under the
Note, this Mortgage and the other Loan Documents, then this Mortgage shall be
void. Otherwise it shall remain in full force and effect.
1. Representations, Warranties, and Covenants of the Mortgagor. In
addition to the MORTGAGE COVENANTS, the Mortgagor represents, warrants,
covenants, and agrees with the Mortgagee as follows:
(a) Power and Authority. The Mortgagor has full power, authority, and
legal right to execute and deliver the Mortgage and the other Loan Documents and
to consummate the transactions contemplated herein without the consent or
approval of any third party, court or governmental body or other third party;
and, the execution and delivery of the Mortgage and the other Loan Documents and
the consummation of the transactions contemplated herein will not
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conflict with or result in a breach of the terms of any agreement or law or
order of any court or governmental body;
(b) Title. Upon the recording hereof, Mortgagor is the lawful owner of
the Mortgaged Property seized and possessed thereof in its own right in fee
simple, has full power and lawful authority to grant and convey the same in
manner aforesaid; the Mortgaged Property is free and clear from any encumbrance
whatsoever, except for the exceptions identified in the Mortgagee's title
insurance commitment issued to and accepted by Mortgagee insuring this Mortgage
(the "Permitted Encumbrances"); Mortgagor shall warrant and defend the same to
the Mortgagee against the lawful claims and demands of any person or persons
whatsoever; Mortgagor will not cause or permit any lien to arise against the
Mortgaged Property which is superior to the lien or security interest granted
herein;
(c) Payment and Performance. Mortgagor shall pay the Note hereby
secured and interest thereon as the same shall become due and payable, and also
any other indebtedness that may accrue to the Mortgagee under the terms of this
Mortgage and the other Loan Documents, and shall perform all other covenants,
undertakings and agreements set forth herein and in the other Loan Documents;
(d) Insurance. Mortgagor shall obtain and keep in force, with one or
more insurers acceptable to Mortgagee, such insurance as Mortgagee may from time
to time specify by notice to Mortgagor, including, as a minimum, insurance
providing (i) commercial general liability (including death or bodily injury and
property damage coverage) with a broad form coverage endorsement and a combined
single limit of at least Five Million Dollars ($5,000,000.00), and (ii)
protection against fire, "extended coverage" and other "All Risk" perils,
including, if specifically required by Mortgagee, flood, if in a flood hazard
area, with a full replacement cost endorsement (such cost to be subject to
annual review and increased if necessary so as to provide coverage at all times
in an amount necessary to restore the Mortgaged Premises to the condition
existing just prior to the destruction or damage) and a waiver of subrogation
endorsement. All fire and casualty insurance policies shall include the standard
mortgagee clause for the State of New Hampshire naming Mortgagee as the first
mortgagee with loss payable to Mortgagee as such mortgagee and all other
policies shall name Mortgagee as an additional insured. All insurance policies
shall not be cancelable or modifiable without thirty (30) days prior written
notice to Mortgagee and shall not have more than a Five Thousand Dollar
($5,000.00) deductible for any single Casualty. Mortgagor shall provide
Mortgagee with evidence of compliance with this Paragraph, in such forms
(including original policies and certificates) as required from time to time by
Mortgagee, upon notice from Mortgagee or in any event at least fifteen (15) days
prior to the expiration date of any policy required hereunder, each bearing
notations evidencing the prior payment of premiums or accompanied by other
evidence satisfactory to Mortgagee that such payment shall be delivered by
Mortgagor to Mortgagee.
Mortgagor shall keep, observe and satisfy, and not suffer violations
of, the requirements of insurance companies and any bureau or agency which
establishes standards of insurability
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affecting the Mortgaged Property, and pertaining to acts committed or conditions
existing thereon.
Upon foreclosure of this Mortgage or other transfer of title or
assignment of the Mortgaged Property in discharge, in whole or part, of the
indebtedness secured hereby, all right, title and interest of Mortgagor in and
to all policies of insurance required by this Paragraph shall inure to the
benefit of and pass to Mortgagee;
(e) Taxes and Assessments. The Mortgagor will pay, before the same
become delinquent or any penalty attached thereto for nonpayment, all taxes,
condominium association assessments, and other assessments and charges of every
nature that may now or hereafter be levied or assessed, upon the Premises or any
part thereof, or upon the rents, issues, income or profits thereof, whether any
or all of said taxes, assessments or charges be levied directly or indirectly,
and will pay, before the same become delinquent or any penalty attached thereto
for the nonpayment, all taxes which by reason of nonpayment create a lien prior
to the lien of the Mortgage; and will thereupon submit to the Mortgagee such
evidence of the due and punctual payment of such taxes, etc. as the Mortgagee
may require;
(f) Maintenance of the Premises. The Personal Property is in good
working order and condition, and to the best of Mortgagor's knowledge, the
Premises are free from structural defects. The Mortgagor will keep the Mortgaged
Property protected in good order, repair and condition (reasonable wear and tear
and casualty insured against excepted) at all times, promptly replacing any part
thereof which may become lost, destroyed or unsuitable for use; and will not
commit or suffer any strip or waste of the Mortgaged Property, or any violation
of any law, regulation, ordinance or contract affecting the Mortgaged Property,
will not commit or suffer any demolition, removal or material alteration of the
Mortgaged Property without the written consent of the Mortgagee. Mortgagor will
afford the Mortgagee the opportunity to inspect the Mortgaged Property at any
time upon reasonable prior notice; and Mortgagor, its officers, agents, and
representatives shall fully cooperate with Mortgagee, its agents, and
representatives in conducting such inspection. The Mortgagor shall maintain and
preserve the parking areas, passageways and drives, now or hereafter existing on
the Premises, and, without prior written consent of the Mortgagee, which shall
not be unreasonably withheld, no building or other structure other than those
currently in existence on the Premises shall be erected thereon and no additions
to existing buildings shall be erected, except as contemplated by the Loan
Agreement, without the prior written consent of the Mortgagee;
(g) Real Estate Tax and Insurance Escrow. The Mortgagor shall, upon
request therefor by the Mortgagee, which request may be withdrawn and remade
from time to time at the discretion of the Mortgagee, pay to the Mortgagee on a
monthly basis as hereafter set forth a sum equal to the municipal and other
governmental real estate taxes, personal property taxes, other assessments next
due on the Mortgaged Property and all premiums next due for fire and other
casualty insurance required of the Mortgagor hereunder, less all sums already
paid therefor, divided by the number of months to lapse not less than one (1)
month prior to the date when said taxes and assessments will become delinquent
and when such premiums will become due, provided such request shall only be made
following the occurrence of an Event of Default
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hereunder. Such sums as estimated by the Mortgagee shall be paid with monthly
payments of principal and/or interest due pursuant to the terms of the Note and
such sums shall be held by the Mortgagee to pay said taxes, assessments and
premiums before the same become delinquent. The Mortgagor agrees that should
there be insufficient funds so deposited with the Mortgagee for said taxes,
assessments and premiums when due, it will upon demand by the Mortgagee promptly
pay to the Mortgagee amounts necessary to make such payments in full; any
surplus funds may be applied toward the payment of principal and/or interest on
the Note (such payment shall not be subject to any prepayment penalty or
premium) or credited toward future such taxes, assessments and premiums. If the
Mortgagee shall have commenced foreclosure proceedings, the Mortgagee may apply
such funds toward the payment of the Mortgage indebtedness without causing
thereby a waiver of any rights, statutory or otherwise, and specifically such
application shall not constitute a waiver of the right of foreclosure hereunder.
The Mortgagor hereby assigns to the Mortgagee all the foregoing sums so held
hereunder for such purposes;
(h) Books and Records. The Mortgagor shall maintain full and correct
books and records showing in detail the earnings and expenses of the Mortgaged
Property in accordance with generally accepted accounting principles, and full
and accurate entries of all dealings and transactions relating to the Mortgaged
Property, and will permit the Mortgagee and its agents, accountants and
representatives to examine said books and records and all supporting vouchers
and data any time from time to time upon request by the Mortgagee;
(i) Financial Statement and Reports. Mortgagor shall furnish to
Mortgagee the financial statements and reports required under the Loan
Agreement;
(j) Other Proceedings. If any action or proceeding shall be commenced,
excepting an action to foreclose the Mortgage or to collect the debt hereby
secured, to which action or proceeding the Mortgagee is made a party by reason
of the execution of the Mortgage or the Note, or in which it becomes necessary
to defend or uphold the lien of the Mortgage, all reasonable sums paid by the
Mortgagee for the expense of any litigation to prosecute or defend the rights
and lien created hereby, including attorneys' fees, shall be paid by the
Mortgagor on demand, together with interest thereon from date of demand at the
rate specified in the Note, and any such sum, and the interest thereon, shall be
immediately due and payable and be secured hereby, having the benefit of the
lien hereby created, as a part thereof and of its priority. The Mortgagee shall
give the Mortgagor prompt notice of the initiation of any such action or
proceeding;
(k) Consent to Release, Etc. Without affecting the liability of the
Mortgagor or any other person (except to the extent such liability is expressly
modified in writing or except for any person expressly released in writing) for
payment of any indebtedness secured hereby or for performance of any obligation
contained herein or in the other Loan Documents, and without affecting the
rights of the Mortgagee with respect to any security not expressly released in
writing, the Mortgagee may at any time and from time to time, either before or
after the maturity of the Note and without notice or consent:
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(i) Release any person liable for payment of all or any part
of the indebtedness evidenced by the Note or for performance of any
obligation contained in the other Loan Documents;
(ii) Make any agreement extending the time or otherwise
altering the terms of payment of all or any part of the Note
indebtedness, or modifying or waiving any obligation in the Loan
Documents, or subordinating, modifying or otherwise dealing with the
lien or charge hereof;
(iii) Exercise or refrain from exercising or waive any right
the Mortgagee may have hereunder, in the other Loan Documents, or by
law;
(iv) Accept additional security of any kind; or
(v) Release or otherwise deal with any property, real or
personal, securing the indebtedness, including all or any part of the
Premises;
(l) Leases. The terms and conditions pursuant to which all leases and
rents respecting the Premises are assigned to Mortgagee are set forth in the
assignment of leases and rents of even date from Mortgagor to Mortgagee;
(m) Due on Sale. This Mortgage is not assignable or assumable and if
all or any part of the Mortgaged Property is sold, transferred, or otherwise
conveyed, without Mortgagee's prior written consent, then the Mortgagee may, at
its option, require immediate payment in full of all sums secured by this
Mortgage (for purposes of this paragraph, a net lease having a term of fifty
(50) years or more shall constitute a sale);
(n) Liens and Other Mortgages. The Mortgagor shall not grant any other
mortgage, lien or security interest in the Mortgaged Property without
Mortgagee's prior written consent which shall not be unreasonably withheld;
(o) Underground Tanks. The Mortgagor will comply with applicable laws
and regulations relating to the inspection and replacement of underground fuel
storage tanks located on the Premises including without limitations, New
Hampshire Water Supply and Pollution Control Commission Regulation WS-411, et
seq.
(p) Flood Hazard; Hazardous Materials. The Premises are not located in
an "area of Special Flood Hazard", as that term is defined in the National Flood
Insurance Act of 1968 (as amended and supplemented by the Flood Disaster
Protection Act of 1973), and, to the Mortgagor's knowledge, except as may be set
forth in any environmental site assessment report which the Mortgagee has
obtained and accepted as a condition precedent to the granting of the Loan, a
copy of which has been delivered to the Mortgagee, the Premises do not contain
any oil, hazardous wastes, hazardous substances, hazardous materials, toxic
substances or toxic pollutants (collectively, "Hazardous Materials"), as those
terms are used in the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation
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and Liability Act, the Hazardous Materials Transportation Act and the Toxic
Substances Control Act, the Clean Air Act, the Clean Water Act, or any similar
state or local law, (including, but not limited to, New Hampshire Revised
Statutes Annotated Chapters 147-A, 147-B, and 147-C et seq.), or in any
regulations promulgated pursuant thereto, or in any other applicable law
(collectively, "Hazardous Waste Laws"), or any asbestos, in violation of
Hazardous Waste Laws. The Mortgagor covenants to comply with the requirements of
all Hazardous Waste Laws and to promptly notify the Mortgagee of the
commencement or threat to commence any enforcement action by any federal or
state environmental agency relative to the presence in or on the Premises of any
materials, the use, storage, transportation or disposal of which is regulated by
the Hazardous Waste Laws (and immediately to notify Mortgagee if at any future
time there is a discharge, deposit, injection, dumping, spilling, leaking,
incineration or placing of any Hazardous Materials into or on the Premises or
if, at any time, the use, generation, storage, treatment, disposal, or
transportation of any Hazardous Materials in, on, to, or from the Premises is in
violation of any law). The Mortgagor hereby covenants to protect, indemnify, and
hold the Mortgagee harmless from and against all loss, cost, damage and
liability, including attorneys' fees and costs of litigation, suffered or
incurred by the Mortgagee on account of the presence of any Hazardous Materials
in, on, or under the Premises, including, without limitation, any such loss,
cost, damage or liability arising from a violation of any Hazardous Waste Laws,
except for fines or penalties incurred by Mortgagee for its failure to comply
with any lawful order from an environmental agency directed to Mortgagee. The
Mortgagor covenants not to permit any tenants or other occupants of the Premises
to use any portion or all of the Premises for the use, generation, treatment,
storage, disposal, or transportation of Hazardous Materials, except with the
prior written consent of the Mortgagor and in compliance with all applicable
laws and regulations. The Mortgagee, at its election and in its sole discretion
but upon notice to Mortgagor, may (but shall not be obligated to) cure any
failure on the part of Mortgagor or any occupant of the Premises so as to comply
with the foregoing and any all applicable laws in furtherance thereof following
notification from any federal or state environmental agency of a violation and
intent to commence an enforcement action, including, without limitation (i)
arrange for the clean up or containment of Hazardous Materials found in, on, or
near the Premises and pay for such clean up and containment costs and costs
associated therewith; (ii) pay on behalf of Mortgagor or any occupant of the
Premises, any fines or penalties imposed on Mortgagor or any occupant by any
federal, state, or local governmental agency or authority in connection with
such Hazardous Materials; and (iii) make any other payment or perform any other
act which may prevent a release of Hazardous Materials, facilitate the clean up
thereof, and/or prevent a lien from attaching to the Premises. Any partial
exercise by Mortgagee of the remedies hereinabove set forth or any partial
undertaking on the part of Mortgagee to cure Mortgagor's failure or any failure
by an occupant of the Premises to comply with all applicable laws, shall not
obligate Mortgagee to complete the actions taken or require Mortgagee to expend
further sums to cure Mortgagor's or any such occupants' non-compliance; neither
shall the exercise of any remedy operate to place upon the Mortgagee any
responsibility for the operation, control, care, management or repair of the
Premises, or make the Mortgagee the "operator" or "owner" of the Premises within
the meaning of the Hazardous Waste Laws. The Mortgagee, by making any such
payment or incurring any such costs, shall be subrogated to any rights of the
Mortgagor or any occupant on the Premises to seek reimbursement from any third
parties, including without limitation, the predecessor in interest to the
Mortgagor's title or a predecessor
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to the occupant's use of the Premises who may be a "responsible party" under the
Hazardous Waste Laws, in connection with the presence of such materials in, on
or near the Premises. The Mortgagee, in the reasonable exercise of its
discretion and with reasonable notice under the circumstances, may, at any time,
without regard to whether Mortgagor is in default, cause one or more
environmental assessments of the Premises to be undertaken. The Mortgagor shall
be obligated to pay for any such environmental assessment only if conducted
following the occurrence of an Event of Default. Environmental assessments may
include a detailed visual inspection of the Premises, including, without
limitation, all storage areas, storage tanks, drains, drywells, and leaching
areas, as well as the taking of soil samples, surface water samples, and ground
water samples, and such other investigation or analysis as is necessary or
appropriate for a complete assessment of the compliance of the Premises and the
use and operation thereof with all Hazardous Waste Laws;
(q) Future Advances. Future advances from the Mortgagee, if any, shall
be secured by this Mortgage as evidenced by the Note secured hereby;
(r) Compliance with Laws, Etc. The Premises and the Mortgagor's use and
occupancy thereof comply in all material respects with all applicable zoning,
building, condominium, environmental, and other laws, ordinances, and
regulations. The Mortgagor has no knowledge of any claim of any violation of any
such legal requirements. The Mortgagor will comply, and will cause any tenant or
person occupying the Premises to comply, with all applicable laws, regulations,
covenants, rules, ordinances, statutes, codes, permits, orders and decrees
applicable to the Mortgagor, the Mortgaged Property, or the use, occupancy or
condition of the Premises. The Mortgagor, if an entity other than a natural
person, will, so long as the indebtedness secured hereby remains outstanding, do
all things necessary to preserve and keep in full force and effect its
existence, franchises, rights and privileges as such an entity under the laws of
the state of its incorporation or creation including, without limitation, the
payment of all fees and other charges required in connection therewith. The
Mortgagor shall have the right to contest by appropriate legal proceedings, but
without cost or expense to the Mortgagee, the validity of any laws, ordinances,
orders, rules, regulations and assessments affecting the Mortgagor or the
Mortgaged Property if compliance therewith may legally be held in abeyance
without the sufferance of any charge, lien or liability against the Mortgaged
Property, and the Mortgagor may postpone compliance therewith until the final
determination of any such proceedings, provided they shall be prosecuted with
due diligence and dispatch, and if any lien or charge is incurred, the Mortgagor
may, nevertheless, make the contest and delay compliance, provided the Mortgagee
is furnished with security reasonably satisfactory to it against any loss or
injury by reason of such noncompliance or delay;
(s) Mechanics Liens, Etc. The Mortgagor will pay or bond off, as the
same shall become due, all lawful claims and demands of mechanics, materialmen,
laborers and others which, if unpaid, might result in, or permit the creation
of, a lien on the Mortgaged Property or on the revenues, rents, issues, income
and profits arising therefrom. The Mortgagor will not create or permit to be
created and will promptly discharge or bond off any mortgage, lien, or charge on
the Mortgaged Property or on the interest of the Mortgagor or the Mortgagee
therein,
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and the Mortgagor will do or cause to be done everything necessary so that the
lien hereof shall be fully preserved, at the cost of the Mortgagor, without
expense to the Mortgagee;
(t) No Homestead Interest. The Premises are commercial property and
there is no homestead interest in the Premises;
(u) Further Assurances. Mortgagor shall promptly upon request of
Mortgagee: (i) correct any defect, error or omission which may be discovered in
the contents of this Mortgage or any other Loan Document or in the execution or
acknowledgment thereof; and/or (ii) execute, acknowledge, deliver and record or
file such further instruments and do such further acts, in either case as may be
necessary, desirable or proper in Mortgagee's opinion to (x) protect and
preserve the first and valid lien and security interest of this Mortgage on the
Mortgaged Property or to subject thereto any property intended by the terms
thereof to be covered thereby, including, without limitation, any renewals,
additions, substitutions or replacements thereto; or (y) protect the interest
and security interest of Mortgagee in the Mortgaged Property against the rights
or interests of third parties. Mortgagor hereby appoints Mortgagee as its
attorney-in-fact, coupled with an interest, to take the above actions and to
perform such obligations on behalf of Mortgagor, at Mortgagor's sole expense, if
Mortgagor fails to comply fully with this Paragraph;
(v) Indemnity. Mortgagor shall indemnify, defend and hold harmless
Mortgagee from and against, and, upon demand, reimburse Mortgagee for, all
claims, demand, liabilities, losses, damages, judgments, penalties, costs and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, which may be imposed upon, asserted against or incurred or paid
by Mortgagee by reason of, on account of or in connection with, any bodily
injury or death or property damage occurring in, upon or in the vicinity of the
Mortgaged Property through any cause whatsoever, or asserted against Mortgagee
on account of any act performed or omitted to be performed under the Loan
Documents or on account of any transaction arising out of or in any way
connected with the Mortgaged Property or the Loan Documents, except as a result
of the willful misconduct or negligence of Mortgagee. Mortgagor shall indemnify
and repay Mortgagee immediately upon demand for any expenditures or amounts
advanced (other than advances of principal under the Note) by Mortgagee at any
time under the Loan Documents; and
(w) Appraisals. Mortgagor shall upon demand reimburse Mortgagee for the
reasonable costs of all appraisals of the Mortgaged Premises required by
Mortgagee .
2. Payments by the Mortgagee. If the Mortgagor shall neglect or refuse
to keep the Property in good repair, to maintain and pay the premiums for
insurance which may be required under Paragraph 1(d) or to pay and discharge all
taxes, assessments, charges and liens of every nature and to whomever assessed,
as provided for in Paragraphs 1(e) and 1(s), the Mortgagee may, at its election,
cause such repairs to be made, obtain such insurance or pay said taxes,
assessments, charges and liens, and any amounts paid as a result thereof,
together with interest thereon at the rate of interest specified in the Note
secured hereby from the date of payment, shall be immediately due and payable by
the Mortgagor to the Mortgagee, and until paid shall be added and become part of
the principal debt secured hereby (but shall not be subject to any
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prepayment penalty or premium if repaid by Mortgagor prior to maturity of the
Note), and the same may be collected as a part of said principal debt in any
suit herein or upon the Note; or the Mortgagee, by the payment of any tax,
assessment or charge, may, if it sees fit if allowed by law, be thereby
subrogated to the rights of the state, county, city, town and all political or
governmental subdivisions. No such advances shall be deemed to relieve the
Mortgagor of any default hereunder or impair any right or remedy consequent
thereon, and the exercise of the rights to make advances granted in this
paragraph shall be optional with the Mortgagee and not obligatory, and the
Mortgagee shall not in any case be liable to the Mortgagor for a failure to
exercise any such right. The Mortgagee shall have no responsibility with respect
to the legality, validity and priority of any such claim, lien, encumbrance,
tax, assessment and premium, and of the amount necessary to be paid in
satisfaction thereof.
3. Casualties and Takings.
----------------------
(a) Notice to Mortgagee. In the case of any act or occurrence of any
kind or nature which results in damage, loss or destruction to the Mortgaged
Property (a "Casualty"), or commencement of any proceedings or actions which
might result in a condemnation or other taking for public or private use of the
Mortgaged Property or which relates to injury, damage, benefit or betterment
thereto (a "Taking"), Mortgagor shall immediately notify Mortgagee describing
the nature and the extent of the Casualty or the Taking, as the case may be, if
in excess of $25,000. Mortgagor shall promptly furnish to Mortgagee copies of
all notices, pleadings, determinations and other papers in any such proceedings
or negotiations.
(b) Repair and Replacement. In case of a Casualty or Taking, Mortgagor
shall promptly restore, repair, replace and rebuild the Mortgaged Property as
nearly as possible to its quality, utility, value, condition and character
immediately prior to the Casualty or the Taking, as the case may be, regardless
of whether Insurance Proceeds or Taking Proceeds (defined below) are sufficient,
provided that the Mortgagee makes available for such purpose any Insurance
Proceeds or Taking Proceeds (less the Mortgagee's costs, if any, of recovery or
settlement) on the terms set forth in subparagraph (c), below.
(c) Proceeds.
--------
(i) Collection. Mortgagor shall use its best efforts
to collect the maximum amount of insurance proceeds payable on account
of any Casualty ("Insurance Proceeds"), and the maximum award or
payment or compensation payable on account of any Taking ("Taking
Proceeds"). In the case of a Casualty, Mortgagee may, at its sole
option, make proof of loss to the insurer if not made promptly by
Mortgagor. Mortgagor shall not settle or otherwise compromise any claim
for Insurance Proceeds or Taking Proceeds without Mortgagee's prior
written consent.
(ii) Assignment to Mortgagee. Mortgagor hereby
assigns, sets over and transfers to Mortgagee all Insurance Proceeds
and Taking Proceeds and authorizes payment of such Proceeds to be made
directly to Mortgagee which shall, upon Mortgagor's written request,
apply such proceeds or portion thereof to the portion or
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portions of the Premises damaged or destroyed or, if a Taking, such
portion or portions not taken (the "Work"), on the following terms and
conditions:
(A) Mortgagor shall have provided plans and
specifications for the Work which have been approved
by Mortgagee, as well as the general contractor and
principal subcontractors and suppliers, and the Work
shall restore the Premises to at least the same
economic value as prior to the Casualty or Taking;
(B) Mortgagee shall be satisfied that the
Insurance or Taking Proceeds are sufficient to
complete the Work or, if insufficient, Mortgagor has
deposited with Mortgagee sufficient additional funds
to complete the Work;
(C) The Work can be completed within nine
(9) months of the receipt of the Insurance Proceeds
of Taking Proceeds but in no event later than the
maturity date of the Note; and
(D) The Insurance or Taking Proceeds shall
be disbursed as the Work progresses in installments
upon application to Mortgagee in accordance with such
procedures as it may reasonably establish subject to
the requirements that Mortgagee is satisfied at all
times that it has sufficient funds remaining from
such proceeds to complete the Work, and that such
certifications, lien waivers, releases, affidavits,
and title updates are delivered to Mortgagee as it
may reasonably require . Any portion of Insurance or
Taking Proceeds remaining after payment of the costs
of the Work may be applied by Mortgagee in its sole
discretion to pay down the principal balance of the
indebtedness secured hereby, provided such payment
shall not be subject to any prepayment premium or
penalty contained in the Note. The foregoing
notwithstanding, Mortgagee shall not be obligated
hereunder to disburse any Insurance or Taking
Proceeds to repair, rebuild, or restore the Premises,
and may apply such proceeds to payment of the
indebtedness secured hereby, either in whole or in
part, in an order determined by Mortgagee in its sole
unfettered discretion if an Event of Default that
cannot be cured by the repair, restoration, and/or
rebuilding of the Premises shall have occurred and
remains uncured as of the date of the Casualty or
Taking or anytime thereafter prior to completion of
the Work .
Mortgagee shall not be a trustee with respect to any Insurance Proceeds
or Taking Proceeds, and shall maintain Insurance Proceeds or Taking
Proceeds in a separate interest bearing account. If any portion of the
indebtedness secured hereby shall thereafter be unpaid, Mortgagor shall
not be excused from the payment thereof in accordance with the terms of
the Loan Documents. Mortgagee shall not, in any event or
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circumstance, be liable or responsible for failure to collect or
exercise diligence in the collection of any Insurance Proceeds or
Taking Proceeds.
4. Events of Default. The following events shall be deemed "Events of
Default" hereunder:
(a) Failure by Mortgagor to make any payment when due or within the
applicable grace period, if any, under the Note;
(b) Mortgagor defaults in the observance or performance of any
covenant, warranty, or agreement required to be observed or performed by it
under this Mortgage (other than a payment default referenced in subparagraph (a)
above) and fails to cure such default within thirty (30) days after written
notice from Mortgagee, or such longer period as is reasonably required to effect
such cure so long as Mortgagor promptly commences and diligently pursues such
cure, and provided that the Mortgagor shall not be entitled to any cure period
or a continuance or extension thereof if the existence or continuance of such
default has an immediate material adverse affect upon the Mortgagor or the
Mortgaged Property;
(c) Any representation or warranty or statement of fact made to
Mortgagee at any time by Mortgagor is false or misleading or becomes false or
misleading in any material respect when made;
(d) The occurrence of a default or an event of default under the Loan
Agreement, any other Loan Document (exclusive of this Mortgage), or any other
mortgage and security agreement by and between Mortgagor and Mortgagee of near
or even date herewith, and lapsing of the applicable grace period, if any (and
provided that all grace or cure periods provided under this Mortgage shall run
concurrently with all grace and cure periods provided under the Loan Agreement
or the Loan Documents);
(e) Mortgagor shall be in default under any other obligation owed to
Mortgagee, whether now existing or hereafter arising, which has not been cured
within the applicable grace period, if any, or shall be in default under any
other obligation owed to a third party which default has a material adverse
effect on the financial condition of Mortgagor or on the value of the Mortgaged
Property and the grace period, if any, for curing such default has expired;
(f) Uninsured loss, theft, damage, or destruction of any substantial
portion of any of the Mortgaged Property which materially impairs its value to
the Mortgagor and the Mortgagee either as to any individual piece of Mortgaged
Property or in the aggregate;
(g) Proceedings shall be commenced or an order, judgment or decree
shall be entered, without the application, approval or consent of the Mortgagor,
in or by any court of competent jurisdiction, relating to the bankruptcy,
dissolution, liquidation, reorganization of the Mortgagor or the appointment of
a receiver, trustee or liquidator of all or a substantial part of its assets,
and such proceedings, order, judgment or decree shall continue undischarged or
unstayed for a period of sixty (60) days;
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(h) The Mortgagor shall (1) apply for or consent to the appointment of
a receiver, trustee or liquidator of it or any of its property, (2) make a
general assignment for the benefit of creditors, (3) be adjudicated as bankrupt
or insolvent, (4) file a voluntary petition in bankruptcy, or a petition or an
answer seeking reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation under any law or statute, or an answer admitting the
material allegations of a petition filed against it in any proceeding under any
such law or statute, or (5) offer or enter into any composition, extension or
arrangement seeking relief or extension of its debts;
(i) One or more final judgments, decrees or orders shall be entered
against Mortgagor and all such judgments, decrees or orders shall not have been
satisfied, vacated, dismissed, or stayed or bonded pending appeal (or other
contest by appropriate proceedings) within thirty (30) days from the entry
thereof;
(j) Mortgagor ceases to exist by reason of dissolution, liquidation or
merger or consolidation with or into another entity or, if the Mortgagor is a
natural person, the Mortgagor dies or becomes incompetent, unless within sixty
(60) days of the death of a Mortgagor the estate of the deceased Mortgagor
lawfully acknowledges and assumes in writing its liability under the Note, and
such estate satisfies all of the covenants previously imposed on the deceased
Mortgagor and at all times thereafter complies with the covenants previously
imposed upon the deceased Mortgagor; or
(k) Pursuant to one or more judgments, decrees, orders, or other
proceedings, whether legal or equitable, any attachment, execution or other writ
is levied upon any material part of the property or assets of Mortgagor and is
not satisfied, dismissed or stayed (including stays resulting from the filing of
an appeal) within thirty (30) day;
Upon the occurrence of any Event of Default, then the full principal
sum or unpaid balance of the debt secured hereby, together with interest and all
advances, if any, shall, at the option of the Mortgagee, or its successors or
assigns, immediately become due and payable, whereupon the Mortgagee, or its
successors or assigns, may forthwith exercise all of the rights and remedies
provided in this Paragraph and Paragraphs 5, 6, and 7 hereinbelow, as well as in
any of the other Loan Documents, or available to the Mortgagee at law or in
equity, including without limitation the STATUTORY POWER OF SALE.
Notwithstanding any other provisions set forth herein and without limitation
thereof, this Mortgage is upon the STATUTORY CONDITIONS for any breach of which,
not cured within the grace period, if any, provided above for such default, the
Mortgagee shall have the STATUTORY POWER OF SALE pursuant to New Hampshire RSA
Chapter 479.
5. Possession by Mortgagee.
-----------------------
(a) If the Mortgagee shall take possession of the Mortgaged Property as
permitted hereby, then in addition to, and not in limitation of, the Mortgagee's
STATUTORY POWER OF SALE, the Mortgagee may:
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(i) hold, manage, operate, and lease the Mortgaged Property to
the Mortgagor or to any other entity on such terms and for such
period(s) of time as the Mortgagee may deem proper, and the provisions
of any lease made by the Mortgagee pursuant hereto shall be valid and
binding upon the Mortgagor notwithstanding the fact that the
Mortgagee's right of possession may terminate or this Mortgage may be
satisfied of record prior to the expiration of the term of such lease;
(ii) make such alterations, additions, improvements,
renovations, repairs, and replacements to the Mortgaged Property as the
Mortgagee may reasonably deem necessary to preserve and protect the
value of its collateral;
(iii) remodel such improvements so as to make the same
available in whole or in part for business purposes in order to
preserve and protect the value of the Mortgagee's collateral;
(iv) collect the rents, issues, and profits arising from the
Mortgaged Property, past due and thereafter becoming due, and apply the
same, in such order of priority as the Mortgagee may determine, to the
payment of all charges and commissions incidental to the collection of
rents, the management of the Mortgaged Property, and thereafter to the
obligations secured hereby, and all sums or charges required to be paid
by the Mortgagor hereunder; and
(v) take any other action the Mortgagee deems necessary or
appropriate in its sole discretion to preserve, protect, or improve the
Mortgaged Property in order to preserve and protect the value of the
Mortgagee's collateral;
(b) All monies advanced by the Mortgagee for the above purposes and not
repaid out of the rents collected shall immediately and without demand be repaid
by the Mortgagor to the Mortgagee, together with interest thereon at the same
rate as provided in the Note, and shall be added to the principal indebtedness
secured hereby;
(c) The taking of possession and the collection of rents by the
Mortgagee as described above shall not be construed to be an affirmation of any
lease of the Mortgaged Property or any part thereof, and the Mortgagee, or any
purchaser at any foreclosure sale, may terminate any such lease at any time,
whether or not such taking of possession and collection of rents has occurred,;
and
(d) Mortgagor hereby releases Mortgagee from liability for losses or
damages which Mortgagor may incur as a result of Mortgagee taking possession of
the Mortgaged Property and exercising and performing its rights and duties
otherwise set forth in this Paragraph, except for such losses or damages
resulting from Mortgagee's gross negligence or willful misconduct.
6. Foreclosure of Premises Pursuant to Statutory Power of Sale.
-----------------------------------------------------------
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(a) Upon an Event of Default, the Mortgagee or its legal
representatives or assigns may, on such terms and conditions as the Mortgagee
deems appropriate in its sole discretion and pursuant to the STATUTORY POWER OF
SALE, sell the Premises by public sale as provided herein and in N.H. RSA
479:25-27-a, as such statutes may be amended from time to time;
(b) If the Mortgagee invokes the POWER OF SALE, the Mortgagee shall
without further demand upon the Mortgagor, auction the Premises or any estate
therein, in one or more parcels, in one or more sales, to the highest or most
responsible bidder for cash or other consideration acceptable to the Mortgagee,
such auction to be held upon the Premises;
(c) The deed given by reason of a power of sale foreclosure shall
convey to the purchaser an indefeasible title to the Premises or tracts, parcels
or other interests therein sold, discharged of all rights of redemption with
respect to this Mortgage by the Mortgagor, or any person claiming from or under
Mortgagor. The Mortgagee shall apply the proceeds of such sale first to any
prior encumbrance, then to all costs of notice and sale of the Premises,
including reasonable attorneys', accountants' and appraisers' fees, then to any
and all accrued but unpaid interest due to the Mortgagee under the Note, then to
the principal indebtedness evidenced by the Note and thereafter to its Other
Indebtedness secured hereby. Any excess may, unless objected to by the
Mortgagor, be paid to others having a lien on the Premises not having priority
over this Mortgage and, if none, then to the Mortgagor. If objected to by
Mortgagor, Mortgagee may interplead such excess with a court of competent
jurisdiction for a judicial determination of the party or parties entitled to
payment of such excess, with Mortgagee's costs of the interpleader action
(including attorneys' fees) to be paid by Mortgagor and secured hereby. The
Mortgagor shall be liable for any deficiency;
(d) In the event of foreclosure, at the option of the Mortgagee, the
interest of each of the Mortgagor and the Mortgagee herein may be sold as a
single unit together with such personal property, furniture, furnishings,
fixtures, machinery, and equipment as may secure the Note or be secured by the
Loan Documents;
(e) If the provisions of the Uniform Commercial Code as adopted by the
State of New Hampshire or by the State in which the Premises are located ("UCC")
apply to any property or security given to secure the indebtedness secured
hereby which is sold with or as a part of the Premises, or any part thereof, at
one or more foreclosure sales, any notice required under such provisions shall
be deemed commercially reasonable and fully satisfied by the notice provided to
be given hereby in execution of the POWER OF SALE; and
(f) The Mortgagee may resort to any remedies and the security given by
the Loan Documents in whole or in part, and in such portions and in such order
as may seem best to Mortgagee in its sole discretion, and Mortgagor waives all
rights to a marshalling of its assets.
7. UCC Sale of Personal Property. The Mortgage is intended to be and is
a security agreement and financing statement with respect to the Personal
Property pursuant to, and in accordance with, the terms of the UCC. Upon an
Event of Default, the Mortgagee may, at its discretion, require the Mortgagor to
assemble the Personal Property and make it available to the
-16-
Mortgagee at a place reasonably convenient to both parties to be designated by
the Mortgagee. The Mortgagee shall give the Mortgagor notice, by registered
mail, postage prepaid, of the time and place of any public sale of any of the
Personal Property or of the time any private sale or other intended disposition
thereof is to be made by sending notice to the Mortgagor at least ten (10) days
before the time of the sale or other disposition, which provisions for notice
the Mortgagor and the Mortgagee agree are reasonable; provided, however, that
nothing herein shall preclude the Mortgagee from proceeding as to both the
Personal Property and the Premises, in accordance with the Mortgagee's rights
and remedies in respect of the Premises. The Mortgagee shall have all of the
remedies of a secured party under the UCC as now in effect, and such further
remedies as may from time to time hereafter be provided in New Hampshire for a
secured party. The Mortgagor agrees that all rights of the Mortgagee as to the
Personal Property and the Premises may be exercised together or separately and
further agrees that in exercising its power of sale as to the Personal Property
and the Premises, the Mortgagee may sell the Personal Property or any part
thereof, either separately from or together with the sale of the Premises or any
part thereof, all as the Mortgagee may in its discretion elect. Mortgagor
warrants, for UCC purposes, that its principal place of business is in
Manchester, New Hampshire.
8. Joint and Several Liability. If the Mortgagor be more than one
party, such parties shall be jointly and severally liable under any and all
obligations, covenants and agreements of the Mortgagor contained herein or in
any of the other Loan Documents, and any reference herein to "Mortgagor" shall
mean and refer to such parties individually and collectively.
9. General Provisions. The Mortgagor and the Mortgagee further agree
that:
(a) Waivers.
-------
(i) Except as otherwise specifically provided in this
Mortgage, the Note and the other Loan Documents, the Mortgagor waives
demand, notice of any action taken in reliance on this Mortgage, and
all other demands and notices of any description;
(ii) No delay or omission on the part of the Mortgagee in
exercising any right or remedy hereunder shall operate as a waiver of
such right or remedy or of any other right or remedy under this
Mortgage. A waiver on any one occasion shall not be construed as a bar
to or waiver of any such right and/or remedy on any future occasion. No
single or partial exercise of any power hereunder shall preclude other
or future exercise thereof or the exercise of any other right; and
(iii) That receipt and disposition of rents, income of the
Mortgaged Property, insurance proceeds, eminent domain awards, or any
other sums under the provisions of the Loan Documents by the Mortgagee
shall not be a waiver or release of any rights of the Mortgagee,
including but not limited to, the right of foreclosure or acceleration
of the Note, whether such receipt or disposition shall be before or
after exercise of any such rights.
-17-
(b) Binding Agreement. This Mortgage shall inure to the benefit of and
shall be binding upon the parties hereto and their respective heirs, legal
representatives, successors, and permitted assigns; provided, however, that any
assumption of any obligations of Mortgagor hereunder shall not constitute a
release of the party whose obligation is being assumed without the Mortgagee's
prior written consent.
(c) Amendment. This Mortgage shall not be changed in any respect except
by written instrument signed by the parties hereto.
(d) Governing Law. This Mortgage and all rights and obligations
hereunder, including matters of construction, validity, and performance, shall
be governed by the laws of the State of New Hampshire.
(e) Severability. If any term, condition, or provision of this Mortgage
or the application, thereof to any person or circumstance shall, to any extent,
be held invalid or unenforceable according to law, then the remaining terms,
conditions, and provisions of this Mortgage, or the application of any such
invalid or unenforceable term, condition or provision to persons or
circumstances other than those to which it is held invalid or unenforceable,
shall not be affected thereby, and each term, condition, and provision of this
Mortgage shall be valid and enforced to the fullest extent permitted by law.
(f) Headings. The descriptive headings of the sections of this Mortgage
have been inserted for convenience and reference only and shall not control or
affect the meaning or construction of any of the contents hereof.
(g) Estoppel Certificate. The Mortgagor, within five (5) days after
being given notice as provided below, will furnish to the Mortgagee a written
statement duly acknowledged by the Mortgagor or its representative certifying
the principal amount then outstanding on the Note and certifying that no offsets
or defenses exist against the Mortgage indebtedness or, if there are any alleged
offsets or defenses, what are such alleged offsets or defenses.
(h) Notices. All notices, requests, demands and other communications
provided for hereunder shall be in writing and shall be either mailed by
certified or registered mail, return receipt requested, or delivered by a
regularly scheduled overnight express carrier ("Overnight Carrier"), to the
applicable party at the following addresses:
If to the Mortgagor, to:
Presstek, Inc.
0 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxxxxx 00000
Attention: Xxxxxx X. XxXxxxxx, Esquire
If to the Mortgagee, to:
-00-
Xxxxxxxx Xxxx Xxx Xxxxxxxxx
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Vice President
or, as to each party, at such other address as shall be designated by such
parties in a written notice to the other party complying as to delivery with the
terms of this Paragraph. All such notices, requests, demands and other
communication shall be deemed given and received on the earlier of:
(i) the date received;
(ii) if mailed as provided above, the date of delivery,
attempted delivery or refusal of delivery, as indicated on the return
receipt; or
(iii) if given to an Overnight Carrier for delivery, the first
business day after being received by the Overnight Carrier.
(i) Gender and Number. All words denoting gender or number shall be
construed to include any other gender or number as the context and facts
require.
(j) Conflict with other Loan Documents. In the event of any conflict
between the terms, covenants, conditions and restrictions contained in the Loan
Documents, the term, covenant and condition or restriction which grants the
greater benefit upon the Mortgagee shall control. The determination as to which
term, covenant, condition or restriction is the more beneficial shall be made by
the Mortgagee in its sole discretion.
(k) Waiver of Right of Exemption. The Mortgagor, for the consideration
aforesaid, hereby waives all rights of exemption in the Mortgaged Property as
the same are now or here after provided by virtue of the Bankruptcy provisions
of the United States Code, including, without limitation, 11 U.S.C. 522.
(l) Rights Cumulative. All rights and remedies set forth herein and in
the Loan Documents shall be cumulative and concurrent, and may be pursued,
singly, successively, or together, at the Mortgagee's sole discretion, and may
be exercised as often as occasion therefor shall occur; Mortgagor expressly
waives the application of any doctrine of marshalling of assets.
(m) Jury Trial Waiver. Recognizing that any dispute arising hereunder
will be commercial in nature and complex, and in order to minimize the costs
involved in the dispute resolution process, the undersigned hereby waives the
right to a trial by jury.
-19-
IN WITNESS WHEREOF, the Mortgagor and the Mortgagee have executed and
delivered this Mortgage and Security Agreement as of this 30 day of September,
2000.
Witness: MORTGAGOR:
PRESSTEK, INC.
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
--------------------------- -----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
MORTGAGEE:
CITIZENS BANK NEW HAMPSHIRE
/s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxx Xxxxxxx
--------------------------- -----------------------------
Xxxx Xxxxxxx, Vice President
-00-
XXXXX XX XXX XXXXXXXXX
XXXXXX XX XXXXXXXXXXXX
Xx this the 30th day of October, 2000, before me, the undersigned
officer, personally appeared Xxxxxx X. Xxxxxxx, who acknowledged himself to be
the President and Chief Executive Officer of Presstek, Inc., a Delaware
corporation, and acknowledged that he, as such officer, being authorized so to
do, executed the foregoing instrument on behalf of such for the purposes
contained therein.
/s/ Xxxxxxxx XxXxx Xxxxxx
---------------------------
Justice of the Peace/Notary Public
My Commission Expires:
XXXXX XX XXX XXXXXXXXX
XXXXXX XX XXXXXXXXXXXX
Xx this the 31st day of October, 2000, before me, the undersigned
officer, personally appeared Xxxx Xxxxxxx, who acknowledged himself to be a Vice
President of Citizens Bank New Hampshire, a New Hampshire banking corporation,
and acknowledged that he, as such officer, being authorized so to do, executed
the foregoing instrument on behalf of said banking corporation for the purposes
therein contained.
/s/ Xxxxxxxx Xxxxxxx
----------------------------
Justice of the Peace/Notary Public
My Commission Expires:
XXXXXXXX X. XXXXXXX, Notary Public
My Commission Expires August 12, 2003
-21-
SCHEDULE A
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LEGAL DESCRIPTION
TRACT I: [Fee in Lot 8-1] A certain tract or parcel of land, with the
buildings and improvements located thereon, situate in Hudson, Hillsborough
County, New Hampshire, shown as LOT 8-1 on Plan entitled "Tax Map 13, Lot 8,
Subdivision of Plan of Land of Digital Equipment Corporation, Executive Drive
and Xxxxxx Road prepared for Presstek/Industrial Plant" by TFMoran, Inc. and
recorded as Plan 28159 (3 sheets); said Lot 8-1 being more particularly
described as follows:
Commencing at a point on the easterly side of Executive Drive on the
southerly side of Lot 8-1; thence
1. North 08(Degrees)22'38" East a distance of 150.00 feet to a
point;
2. North 81(Degrees)37'22" West a distance of 50.00 feet along the
end of Executive Drive to a point; thence
3. South 79(Degrees)44'22" West a distance of 535.00 feet to a point
and continuing on said course 305 feet, more or less, to the bank
of Merrimack River; thence
4. In a generally northerly direction along the bank of the
Merrimack River a distance of 755 feet, more or less, to a point
(the tie course being North 12(Degrees)33'54" East a distance of
746.84 feet);
5. South 89(Degrees)57'11"East a distance of 173 fee, more or less,
to a point; thence
6. North 35(Degrees)18'16" East a distance of 54.29 feet to a point;
thence
7. North 57(Degrees)24'50" East a distance of 323.05 feet to a
point; thence
8. South 69(Degrees)26'29" East a distance of 571.05 feet to a
point; thence
9. South 75(Degrees)00'26" East a distance of 264.82 feet to a
point; thence
10. South 08(Degrees)22'38" West a distance of 760.76 feet to a
point; thence
11. North 81(Degrees)37'22" West a distance of 470.00 to Executive
Drive at the point of beginning.
Shown to contain 22.944 acres, more or less.
EXCEPTING that portion of said Lot 8-1 shown as "Existing Cul-De-Sac
Easement B" which was conveyed by Warranty Deed of Presstek, Inc. to the Town of
Hudson which Deed was delivered to the Town of Hudson but has not been recorded,
said property being more particularly described as follows:
-2-
A certain tract or parcel of land situate in Hudson, Hillsborough
County, New Hampshire, shown as cul-de-sac easement "B" on a plan
entitled "Southeastern Container, Inc. - Addition No. 2,
Subdivision/Consolidation Plan" prepared by Xxxxx X. Xxxxxxx, Inc. and
recorded in the Hillsborough County Registry of Deeds as Plan 26916
(Sheet 2 of 7 Sheets) being that portion of the cul-de-sac at the end
of Executive Drive, which cul-de-sac has a 70 foot radius and which
portion lies on the easterly side of Executive Drive.
The said cul-de-sac easement "B" is also shown on a plan entitled
"Subdivision Plan of Land of Digital Equipment Corporation, Executive
Drive and Xxxxxx Road, Hudson, NH prepared for Presstek/Industrial
Plant" by X.X. Xxxxx, Inc. as Plan No.28159, and is a part of the
property conveyed by Quitclaim Deed of Digital Equipment Corporation to
Presstek, Inc. dated August 22, 1996, recorded at Book 5747, Page 1811.
TRACT II: [Sewer easement appurtenant to Tract I] Certain rights and
easements appurtenant to Tract I above, in a Perpetual Xxxxxxxx Xxxx 00 feet
wide, and the Construction Easement Area, both within Lot 8 on recorded Plan
28159, and running from the north side of Tract I above to the sewer line shown
on recorded Plan 28159, all as conveyed by the Quitclaim Deed of Digital
Equipment Corporation to Presstek, Inc. dated August 22, 1996 recorded at Book
5747, Page 1811 (contained within pages 2 through 5 of 14 pages of said deed).
Property Address: 00 Xxxxxxxxx Xxxxx, Xxxxxx, XX
Tax Map/Lot #: Map 13, Lot 8-1
SUBJECT TO THE FOLLOWING:
1. Facts, matters and details referenced or depicted on the Plan
entitled "Tax Map 13, Xxx 0-0, Xx-Xxxxx Xxxx, Xxxxxxxxx Xxxxx,
Xxxxxx, XX prepared for Presstek/Industrial Plan" dated May 29,
1997, last revised 8-19-97 and/or the Surveyor's Report of
Xxxx-Xxxxx Xxxxxxx, L.L.S., P.L.S. dated 1/29/98, last revised
2/6/98.*
2. Easement from the Province of St. Xxxx of the Capuchin Order to
the Public Service Company of New Hampshire for a 150 foot strip
(includes 100 foot strip) dated in 1969 and recorded at Book
2054, Page 115; and an Easement from Xxxxxxxx X. Xxxxxxx to
Public Service Company of New Hampshire for a 100 foot strip
dated February 28, 1950, recorded at Book 1249, Page 462.*
3. Rights of the State of New Hampshire and/or the public, as well
as the rights of riparian owners up and down the Merrimack River,
in and to the bed and waters, and the land lying below the high
water xxxx, of the Merrimack River.*
4. Conservation and Pedestrian Easement from Presstek, Inc. to the
Town of Hudson dated August 29, 1996, recorded at Book 5747, Page
1825.*
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5. Tract II in the Continuation of Schedule A (the sewer line
easement) is subject to the terms of the Deed from Digital
Equipment Corporation to Presstek, Inc. dated August 22, 1996,
recorded at Book 5747, Page 1811.*
6. Easement of Presstek, Inc. to Public Service Company of New
Hampshire and New England Telephone and Telegraph Company,
recorded 5/5/97 at Book 5809, Page 1819; see Plan 28553.*
7. Facts, matters and details on any one or more of the following:
(a) recorded Site Layout Plan #28214, recorded 10/3/96, and the
#28802, and the Amended Site Layout Plan, Executive Drive,
Hudson, NH prepared for Presstek/Industrial Plan recorded as
Plan 28802, shows Phases 1, 2 and 3 on the Presstek lot,
dated 7/26/96*;
(b) recorded Site Layout Plan #30055 for 2,712 sq ft addition
for bulk chemical storage*.
(c) recorded Site Layout Plan #30056 for Phase II*;
(d) recorded Subdivision Plan #28159*.
8. Development Agreement with the Town between Presstek, Inc. and
the Town of Hudson recorded at Book 5757, Page 907 regarding Lot
8-1. Provided, however, the Company, affirmatively insures the
Insured, that: Phase I has been built and that the CAP fee
referenced in paragraph I 4 has been paid.
9. Site Development Agreement with the Town of Hudson for Lot 13-8-1
recorded September 16, 1999 at Book 6158, Page 9 regarding 2,712
sq ft addition for bulk chemical storage.
10. Development Agreement with the Town of Hudson for Lot 1-8-1
recorded September 16, 1999, at Book 6158, Page 13 for Phase II
(aka Phase 2.).
11. UCC Presstek, Inc. to Citizens Bank New Hampshire, recorded
12/24/96 at Book 5778, Page 840; all property; all assets.
12. Mortgage and Security Agreement of Presstek, Inc. to Citizens
Bank New Hampshire dated February 6, 1998, recorded February 6,
1998 at Book 5900, Page 160.
13. Assignment of Leases from Presstek, Inc. to Citizens Bank New
Hampshire dated February 6, 1998, recorded at Book 5900, Page
184.
