Exhibit 99.16
MORTGAGE AND SECURITY AGREEMENT
(First Mortgage)
THIS MORTGAGE AND SECURITY AGREEMENT (this "Mortgage") is
made this 29th day of September, 1999, between PITTSFIELD MOLD &
TOOL, INC., a Massachusetts corporation, with a mailing address
for the purposes hereof at 00 Xxxxx Xxxxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx (the "Mortgagor") and BERKSHIRE BANK, a
Massachusetts banking corporation with its principal office and
place of business at 00 Xxxxx Xxxxxx, X. X. Xxx 0000, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000 ("Mortgagee").
W I T N E S E T H:
WHEREAS, Mortgagor is indebted unto Mortgagee in the amount
of TWO MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($2,500,000.00) (the "Loan"), evidenced by that certain
promissory note of like amount made by the Mortgagor and payable
to the order of the Mortgagee (the "Note"); and
WHEREAS, Mortgagor has given this Mortgage to partially
secure the Note; and
WHEREAS, Mortgagor desires to secure the Mortgagee and any
subsequent holder(s) of the Note and all those claiming under or
through the Mortgagee the full and punctual payment of the total
debt evidenced by the Note, when and as the same shall become due
and payable, as well as any renewal, extension, modification,
supplement and amendment of the Note, or any part of the Note,
together with interest thereon, if any, and the performance of and
compliance with the covenants and agreements herein and therein
contained and also to secure the reimbursement to the holder(s) of
the Note of all value which may be advanced as herein provided,
and for any reasonable costs and expenses incurred or paid on
account of any litigation at law or in equity which may arise with
respect to this Mortgage, the Indebtedness, as hereinafter
defined, or the Mortgaged Property, as hereinafter defined, or in
obtaining possession of said Mortgaged Property.
It is the true, clear and express intention of Mortgagor that
the continuing grant of this Mortgage remain as security for
payment and performance of the Indebtedness, whether or not
presently contemplated or otherwise related to this Mortgage
transaction by class or kind; and that the notice of the
continuing grant of this Mortgage therefor shall not be required
to be stated on the face of any document representing any such
Indebtedness, nor otherwise be identified as being secured by this
Mortgage; and if such Indebtedness shall remain or become that of
less than all of the Mortgagors herein, any Mortgagor not liable
therefor hereby expressly hypothecates his, her, its, or their
ownership interest in the Mortgaged Property herein to the extent
required to satisfy the Secured Indebtedness, without restriction
or limitation.
NOW THEREFORE, FOR CONSIDERATION PAID, Mortgagor, to secure
payment of the Indebtedness, in lawful money of the United States
of America, and also to secure the performance, satisfaction and
discharge of the Obligations, as hereinafter defined, does hereby
give, grant, bargain, sell and convey with MORTGAGE COVENANTS unto
the Mortgagee and its successors and assigns the Mortgaged
Property, as hereinafter defined;
TO HAVE AND TO HOLD the Mortgaged Property unto and to the
proper use and benefit of the Mortgagee, and its successors and
assigns forever;
PROVIDED, NEVERTHELESS, and these presents are upon this
express condition, that if the Mortgagor shall pay to Mortgagee
the Indebtedness at the time and in the manner provided in the
Note and this Mortgage and shall well and truly abide by and
comply with each and every covenant and condition set forth in the
Note, this Mortgage, and other Loan Documents, as hereinafter
defined, then this Mortgage shall cease, determine and be void;
otherwise, this Mortgage shall remain in full force and effect for
all purposes.
1. DEFINITIONS. Mortgagor and Mortgagee agree that, unless
the context otherwise specifies or requires, the following terms
shall have the meanings herein specified, such definitions to be
applicable equally to the singular and the plural forms of such
terms:
Fixtures shall mean all fixtures located upon or within the
Improvements, as hereinafter defined, or now or hereafter attached
to or installed in, or used in connection with any of the
Improvements, including, but not limited to, any and all
partitions, dynamos, screens, awnings, motors, engines, boilers,
furnaces, pipes, plumbing, elevators, sprinkler systems, fire
prevention and extinguishing apparatus and equipment, water tanks,
heating, ventilating, air-conditioning and air-cooling equipment,
furnaces, heaters, condensers, compressors, motors, ducts,
machinery, walks, fences, shrubbery, driveways, fittings and
articles of personal property of every kind and character
whatsoever, excluding, however, all items of personal property
owned by occupancy tenants of the Improvements and installed for
the purpose of their tenancies with the right of removal by the
tenant upon the expiration of its tenancy.
Impositions shall mean (i) all real estate taxes, personal
property taxes and other taxes of every kind and character,
general and special, ordinary and extraordinary, foreseen and
unforeseen, which at any time prior to or after the execution of
this Mortgage may be assessed, levied or imposed upon the
Mortgaged Property, as hereinafter defined, or the rents
therefrom, or any use or occupancy thereof; (ii) all general and
special assessments, levies, and all other rentals and charges
payable to municipal or other governmental authorities for use of
or in respect to public space at, below or above ground level
(including public air space); (iii) all permit fees, inspection
fees and license fees; (iv) all water and sewer rents and charges;
(v) all other public charges, taxes, assessments, fees,
governmental and non-governmental charges, whether of a like or a
different nature, to the extent any of the foregoing are imposed
upon or assessed against Mortgagor or the Mortgaged Property or
any part thereof or upon the revenues, rents, avails, issues,
income and profits of the Mortgaged Property or arising in respect
of the occupancy, use or possession thereof; (vi) any charges for
any easement or agreement maintained for the benefit of the
Mortgaged Property; and (vii) any interest, costs or penalties
with respect to any of the foregoing.
Improvements shall mean any and all buildings, structures,
improvements, alterations or appurtenances now erected or at
anytime hereafter constructed or placed upon the Land, as
hereinafter defined, or any portion thereof and any replacements
thereof including, without limitation, all equipment, apparatus,
machinery and fixtures of any kind or character forming a part of
said buildings, structures, improvements, alterations or
appurtenances, excluding, however, all items of personal property
owned by occupancy tenants of the Improvements and installed for
the purpose of their tenancies with the right of removal by the
tenant upon the expiration of its tenancy.
Indebtedness shall mean the principal sum due and the
interest thereon described in the Note and all other amounts,
charges, expenses, payments and premiums due on account of the
Note, this Mortgage, and the other Loan Documents, as hereinafter
defined.
Interest Rate shall mean the Interest Rate as defined in the
Note.
Land shall mean the fee simple estate in the parcel of real
estate located in Pittsfield, Berkshire County, Massachusetts
described in Exhibit A attached hereto and by this reference made
a part hereof for all purposes.
Leases shall mean any and all leases, sub-leases, occupancy
agreements, licenses, concessions or grants or other possessory
interests, and any guaranties thereof, if any, now or hereafter in
force, whether oral or written, covering or affecting the
Mortgaged Property, as hereinafter defined, or any portion
thereof, if any, in which Mortgagor is landlord, licensor,
concessionaire or owns any other beneficial interest of any type
or kind.
Loan Documents shall mean this Mortgage, the Note, the
guaranty from United Xxxxxxx Corporation (the "Guarantor"), an
assignment of rents and leases from the Mortgagor the Mortgagor to
the Mortgagee of even date herewith, and any and all other
documents now or subsequently relating to, evidencing, securing or
further securing the payment of the Indebtedness or the
performance of the Obligations, as hereinafter defined, by the
Mortgagor and any amendment, modification, supplementation to or
replacement thereof.
Maturity Date shall mean the date stated in the Note for the
payment of the entire unpaid Indebtedness.
Mortgaged Property shall mean, collectively, all of
Mortgagor's right, title, interest, estate, claim or demand either
at law or in equity in and to the Land, the Improvements, the
Fixtures and the Personalty, as hereinafter defined, TOGETHER
WITH:
(i) all and singular the rights, privileges, tenements,
hereditaments, rights-of-way, easements, appendages and
appurtenances of the Land and Improvements belonging or in any way
appertaining thereto, or which hereafter shall in any way belong,
relate or be appurtenant thereto, whether now owned or hereafter
acquired by Mortgagor, and all right, title and interest of
Mortgagor in and to any streets, ways, alleys, strips or gores of
land adjoining the Land or any portion thereof; and any and all
rights and estates in reversion or remainder; and
(ii) all of Mortgagor's right, title and interest in and
to any award or awards heretofore made or hereafter to be made by
municipal, state or federal authorities to the present or any
subsequent owners of the Land, the Improvements, the Fixtures or
the Personalty, including any award or awards or settlements
hereafter made resulting from (x) condemnation proceedings or the
taking of the Land, the Improvements, the Fixtures or the
Personalty, or any part thereof, under the power of eminent domain
or payments in lieu thereof, or (y) the alteration of the grade or
the location or discontinuance of any street adjoining the Land or
any portion thereof, or (z) any other injury to or decrease in the
value of the Mortgaged Property at the date of receipt of any such
award or payment by the Mortgagee, and the Mortgagor hereby agrees
to execute and deliver, from time to time, such further
instruments as may be requested by the Mortgagee to confirm such
assignment to the Mortgagee of any such award, damage, payment or
other compensation; and
(iii) all proceeds from the conversion, voluntary or
involuntary, of any of the foregoing into cash or liquidated
claims including, without limitation, the proceeds of insurance;
and
(iv) all Leases of the Land or the Improvements now or
hereafter entered into and all right, title and interest of
Mortgagor thereunder, including, without limitation, Mortgagor's
right to cash or securities deposited thereunder to secure
performance by tenants of their obligations thereunder, whether
such cash or securities are to be held until the expiration of the
terms of such leases or applied to one or more of the installments
of rent coming due immediately prior to the expiration of such
terms; and
(v) all earnings, revenues, rents, royalties, issues,
profits, avails and other income of and from the Land or the
Improvements, and all undisbursed proceeds of the Loan; and
(vi) all right, title, interest, estate, claim or demand
of Mortgagor, either at law or in equity, in and to all
architectural, engineering and similar plans, specifications,
drawings, renderings, models, profiles, studies, shop drawings,
reports, plats, permits, surveys and the like; and all sewer taps,
permits and allocations, agreements for utilities, bonds, sureties
and the like, relating to the Land or the Improvements or
appurtenant facilities erected or to be erected upon or about the
Land; and
(vii) all right, title and interest of Mortgagor in, to
and under any and all contracts, now or hereafter entered into by
Mortgagor covering any part of the Land or Improvements or
relating to the Fixtures or the Personalty; and
(viii) all right, title and interest of Mortgagor in and
to any and all governmental permits, licenses and the like
respecting the use, construction, occupancy, operation or
maintenance of the Mortgaged Property; and
(ix) all right, title and interest of Mortgagor in and
to all extensions, improvements, betterments, renewals,
substitutes and replacements of, and all additions and
appurtenances to the Land, the Improvements, the Fixtures and the
Personalty, hereafter acquired by, or released to, Mortgagor or
constructed, assembled or placed by Mortgagor on the Land, and all
conversions of the security constituted thereby, immediately upon
such acquisition, release, construction, assembling, placement or
conversion, as the case may be, and in each such case, without any
further mortgage, conveyance, assignment or other act by
Mortgagor, the same shall become subject to this Mortgage as fully
and completely, and with the same effect, as though now owned by
Mortgagor and specifically described in the granting clause
hereof. At any and all times, Mortgagor will execute and deliver
to Mortgagee such further assurances, mortgages, conveyances or
assignments thereof as Mortgagee may reasonably require for the
purpose of expressly and specifically subjecting the same to the
lien of this Mortgage; and
(x) all right, title and interest of Mortgagor in and to
all trade or style name(s) under or by which any or all of the
Improvements may at any time be operated or known, the good will
of the Mortgagor in connection therewith and the right of
Mortgagor to carry on business under any or all such trade or
style name(s) and any variant or variance thereof, insofar as the
same may be transferable by Mortgagor without the breach of any
agreement pursuant to which Mortgagor may have obtained its right
to use such trade or style name(s);
(xi) any and all other, further or additional title,
estate, interest or right which may at any time be acquired by
Mortgagor in or to the Mortgaged Property or any portion thereof.
Mortgagee shall mean the party hereinabove designated as
such, its successors and assigns, and any subsequent holder or
holders of this Mortgage.
Mortgagor shall mean the party hereinabove designated as
such, its successors and assigns, and any subsequent owner or
owners of the equity of redemption in the Mortgaged Property, but
nothing in this sentence or any reference in this instrument to
successors in title to the Mortgagor shall be construed as
derogating from the restrictions on transfer of the Mortgagor's
interest in the Mortgaged Property contained herein.
Obligations shall mean any and all of the covenants, promises
and other obligations (other than the Indebtedness) made or owing
by the Mortgagor to or due to the Mortgagee pursuant to or as
otherwise set forth in the Note, this Mortgage and other Loan
Documents or in any other instrument(s) to which Mortgagor is a
party or by which Mortgagor is bound.
Permitted Encumbrances shall mean zoning laws and ordinances,
easements, and similar restrictions to title that are described in
the policy of title insurance issued to the Mortgagee in
connection herewith or that do not individually or in the
aggregate materially detract from the value of the Mortgaged
Property or impair the use thereof for the purposes intended or
subject such use to the risk of being impaired.
Personalty shall mean all of the right, title, interest,
estate, claim or demand of Mortgagor in and to any furniture,
furnishings, equipment, machinery and other personal property
(other than the Fixtures) including, without limitation, all
venetian blinds, shades, draperies, drapery and curtain rods,
brackets, bulbs, vacuum cleaning systems and cleaning apparatus,
mirrors, lamps, ornaments, rugs, linoleum and other floor
covering, refrigerating and cooling apparatus and equipment,
refrigerators, ranges and ovens, garbage disposals, dishwashers,
mantels, and any and all such property which is at any time
hereafter installed in, affixed to, placed upon or used in
connection with the Land or the Improvements and all replacements
thereof, additions thereto and substitutions therefor, excluding,
however, (i) all items of personal property owned by occupancy
tenants of the Improvements and installed for the purpose of their
tenancies with the right of removal by the tenant upon the
expiration of its tenancy and (ii) all personal property leased by
Mortgagor as lessee.
Rents shall mean all of the rents, revenues, income, profits
and other benefits arising from the use and enjoyment of ownership
of all or any portion of the Mortgaged Property.
2. REPRESENTATIONS. Mortgagor warrants and represents to
the Mortgagee that (i) Mortgagor will pay the Indebtedness in the
manner provided in the Note or in any modification, renewal or
extension thereof, (ii) this Mortgage has been duly authorized,
executed and delivered by and on behalf of the Mortgagor, (iii) if
applicable, the Mortgagor is duly existing and in good standing
with all power, authority, and legal right to engage in the
transaction contemplated by this Mortgage and the Loan Documents,
(iv) the execution and delivery of this Mortgage and the Loan
Documents and the carrying out of the transaction contemplated
thereby will not conflict with or result in a breach of the terms
of any agreement to which the Borrower or any endorser of the Note
or any guarantor is a party or will not conflict with any law or
order of any court or governmental body, (v) there are no actions,
suits or proceedings, including, without limitation, eminent
domain proceedings, pending, or, to the knowledge of the
Mortgagor, threatened before any court or any other governmental
body or agency which could adversely affect the Mortgaged Property
or the Mortgagor or the Mortgagor's ability to perform its
obligations under this Mortgage or under the other Loan Documents,
(vi) the Mortgagor has not generated, stored or disposed of any
oil, hazardous waste or hazardous material as such material is
defined in Massachusetts General Laws C. 21E, the Resource
Conservation and Recovery Act, as amended, and other applicable
State or Federal laws or regulations as they may be amended from
time to time, excluding customary amounts of such materials
commonly and lawfully used in residential and office buildings,
and to Mortgagor's knowledge and except as reported in the 21E
Site Assessment heretofore supplied to the Mortgagee by the
Mortgagor, no third party has generated, stored, or disposed of
any such materials on the Mortgaged Property or on any other
property owned or operated by the Mortgagor, and no such materials
are presently located on the Mortgaged Property or on any other
property owned or operated by the Mortgagor except in compliance
with all applicable laws and regulations, (vii) the Mortgaged
Property is in compliance with applicable zoning, building,
environmental and all other laws, ordinances and regulations
relating to the use and occupancy thereof and the Mortgagor has no
knowledge of any claim of violation of any such legal
requirements, (viii) all necessary licenses and permits for the
use and occupancy of the Mortgaged Property have been issued and
are in full force and effect, (ix) the Improvements and the
Personalty are in good working order and free from structural
defects, (x) the Mortgagor has no knowledge of any existing
default, or claim thereof, under any leases or other arrangements
for the use or occupancy of the Mortgaged Property either on the
part of the Mortgagor or any other party thereto, and the
Mortgagor's title to the Mortgaged Property is free from defects,
liens or encumbrances except for the Permitted Encumbrances, and
(xi) any and all financial statements heretofore delivered to the
Mortgagee by or on behalf of the Mortgagor and any other financial
statements of individuals and/or entities for which financial
statements have been furnished to Mortgagee in connection with the
Loan, are true and correct in all material respects, have been
prepared in accordance with generally accepted accounting
principles, consistently applied, and fairly present the
respective financial conditions of the subjects thereof as of the
respective dates thereof. No materially adverse change has
occurred in the financial conditions reflected therein since the
respective dates thereof and no additional borrowings have been
made or guaranteed by the subjects thereof since the respective
dates thereof which would cause a material adverse change in the
financial condition of Mortgagor, or other person or entity
endorsing the Note or delivering a guaranty of the Loan, other
than the borrowing secured hereby or previously approved by the
Mortgagee, including borrowings to facilitate Guarantor's
acquisition of Mortgagor.
3. UCC REPRESENTATIONS. The Mortgagor warrants that the
Mortgagor's principal place of business in Massachusetts is at 00
Xxxxx Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx. The Mortgagor
agrees to maintain complete and accurate records listing and
describing the Fixtures and the Personalty and to deliver such
records to the Mortgagee from time to time upon request of the
Mortgagee.
4. SECURITY INTEREST UNDER THE UNIFORM COMMERCIAL CODE.
Upon demand, Mortgagor shall make, execute and deliver such
security agreements (as such term is defined in the Uniform
Commercial Code of the Commonwealth of Massachusetts) as Mortgagee
at any time may deem necessary or proper or require to grant to
Mortgagee a perfected security interest in the Personalty, and
upon Mortgagor's failure to do so, Mortgagee is authorized to sign
any such agreement as the agent of Mortgagor. Mortgagor hereby
authorizes Mortgagee to file financing statements (as such term is
defined in said Uniform Commercial Code) with respect to the
Personalty, at any time, without the signature of Mortgagor.
Mortgagor will, however, at any time upon request of Mortgagee,
sign such financing statements. Mortgagor will pay all filing
fees for the filing of such financing statements and for the
refiling thereof at the times required, in the opinion of
Mortgagee, by said Uniform Commercial Code. If the lien of this
Mortgage be subject to any security agreement covering the
Personalty, then in the event of any default under this Mortgage,
all the right, title and interest of Mortgagor in and to any and
all of the Personalty is hereby assigned to Mortgagee, together
with the benefit of any deposits or payments now or hereafter made
thereof by Mortgagor or the predecessors or successors in title of
Mortgagor in the Mortgaged Property. This Mortgage is considered
to be a financing statement pursuant to the provisions of the
Uniform Commercial Code of the Commonwealth of Massachusetts
covering Fixtures and Personalty located on or used in connection
with the Land.
5. LEASES. The Mortgagor shall observe and perform all
the obligations imposed upon the Mortgagor under any lease of the
Mortgaged Property, or any portion thereof, and shall not do or
permit anything to be done, without the prior written consent of
the Mortgagee, which would impair the security of any such lease
to the Mortgagee, or, except where the lessee is in default
thereunder, terminate or consent to the cancellation or surrender
of any lease of the Mortgaged Property, or any part thereof, or
modify any such lease so as to shorten the unexpired term thereof
or so as to decrease the amount of the Rents payable thereunder.
The Mortgagor shall not accept prepayments of any installments of
Rent to become due under such leases more than thirty (30) days in
advance, except prepayments in the nature of security for the
performance of the obligations of the lessee thereunder. The
Mortgagor warrants that no Rent reserved under any lease of the
Mortgaged Property has been previously assigned or anticipated,
and no rent for any period subsequent to the date hereof has been
collected more than thirty (30) days in advance of the due date
thereof. If any of such leases provide for the giving by the
lessee of estoppel certificates with respect to the status of such
leases, Mortgagor shall exercise its right to request such
estoppel certificates within five (5) days of any demand therefor
by Mortgagee.
6. ASSIGNMENT OF LEASES AND RENTS. As additional
security for the obligations secured hereby, the Mortgagor hereby
assigns to the Mortgagee all of the Mortgagor's rights under any
and all leases or other arrangements for the use or occupancy of
all of any part of the Mortgaged Property, including, without
limitation, the right to receive the Rents from the Mortgaged
Property provided, however, that the Mortgagor shall retain the
right to receive and enjoy the Rents and exercise its other rights
under such leases and other contractual arrangements for the use
and/or occupancy of the Mortgaged Property until the occurrence of
an Event of Default under this Mortgage. After an Event of
Default, the Mortgagee shall be entitled to modify, alter, amend
and otherwise deal with all such leases and other arrangements
with the same power and discretion which the Mortgagee would have
if it were the Lessor or obligee thereof, and the Mortgagee shall
be entitled to collect all of the Rents to collect and endorse
any checks issued in the name of the Mortgagor and to apply the
same to the Indebtedness and other charges outstanding under any
of the Loan Documents. Mortgagor hereby agrees to enter into any
other agreement requested by the Mortgagee to evidence further
this assignment of leases and rents described in this Section.
7. OTHER SECURITY INTERESTS AND EQUIPMENT LEASING. The
Mortgagor shall not permit, without the prior written consent of
Mortgagee, (i) the creation or continued existence, whether by
voluntary action or operation of law, of any security interest in
or other encumbrance on the Mortgaged Property other than the
Permitted Encumbrances or a lien for unpaid real estate taxes and
betterment assessments prior to the commencement of interest and
penalties thereon, or (ii) the leasing of any equipment to be used
by the Mortgagor at or in connection with the operation of the
Mortgaged Property, other than in the ordinary course of
Mortgagor's business. The Mortgagor shall notify the Mortgagee
promptly of the existence of and the terms of any security
interest affecting any portion of the Mortgaged Property and any
lease of personal property, except for those equipment leases made
in the ordinary course of Mortgagor's business, to be used by the
Mortgagor at or in connection with the operation of the Premises,
whether now existing or hereafter arising, shall make all payments
that become due to any secured party having any such security
interest or to any lessor of such equipment, and, at the request
of the Mortgagee, shall assign to the Mortgagee all of Mortgagor's
right, title and interest in and to any and all agreements
evidencing such security interest or lease. The Mortgagor hereby
grants to the Mortgagee full power and authority as attorney-in-
fact of the Mortgagor, which appointment is acknowledged by the
parties hereto to be coupled with an interest, to make, execute,
acknowledge and deliver such assignments. The Mortgagor
represents that, except for the Permitted Encumbrances, no such
security interest or lease presently exists.
8. INSURANCE. The Mortgagor agrees, at the Mortgagor's
sole cost and expense, to keep the Mortgaged Property insured at
all times throughout the term of this Mortgage with policies of
insurance of the type set forth below:
(a) Casualty Insurance. Physical hazard insurance
on an "all risks" basis including, without limitation, the hazards
of earthquake and collapse, with a full replacement cost
endorsement (including builder's risk during any period or periods
of time that construction or remodeling is being performed on the
Mortgaged Property), in an amount equal to 100% of the full
replacement cost of all Improvements (excluding only the
reasonable value of footings and foundations) and the Mortgagor's
contents therein, determined to the reasonable satisfaction of the
Mortgagee, and, in any event, in an amount sufficient to prevent
the Mortgagor from incurring any co-insurance liability. This
insurance policy shall be first payable in case of loss to the
Mortgagee by means of the Commonwealth of Massachusetts standard
non-contributory mortgagee clause and shall name Mortgagee as an
additional insured thereunder.
(b) Boiler Insurance. Policies of insurance against
loss or damage to the major components of the air-conditioning
and/or heating system, fly wheel, steam pipes, steam turbines,
steam engines, steam boilers, other pressure vessels, high-
pressure piping and machinery if any, such as are installed in the
buildings and improvements in an amount reasonably satisfactory to
the Mortgagee.
(c) Liability Insurance. Policies of comprehensive
general liability insurance on an occurrence basis against claims
for bodily injury and property damage with limits of liability
satisfactory to the Mortgagee. The Mortgagor and the Mortgagee
shall be named as insureds under such policies as their interests
may appear.
(d) Workers' Compensation Insurance, Disability
Benefits Insurance, and such other form of insurance which the
Mortgagor is required by law to provide, covering loss resulting
from injury, sickness, disability or death of employees of
Mortgagor who are located at or assigned to the Land or who are
responsible for the construction of the Improvements.
(e) Business Interruption and/or Loss of Rental
Value Insurance. Business interruption and/or loss of rental
insurance for a period of twelve (12) months in such amounts as
are reasonably satisfactory to the Mortgagee.
(f) Flood Insurance. If the Mortgaged Property is
located in an area designated by any governmental authority as an
area of special flood hazard, such insurance against damage caused
by flooding as the Mortgagee shall reasonably require.
(g) Additional Insurance. Insurance with respect to
such other insurable risks relating to the Mortgaged Property or
the Mortgagor in such amounts and containing such terms and
conditions as the Mortgagee may reasonably require from time to
time.
No insurance shall be blanketed with insurance on other
properties without the prior written consent of the Mortgagee,
such consent not to be unreasonably withheld. The Mortgagor shall
deposit all insurance policies (or certificates thereof acceptable
to the Mortgagee) providing coverage applicable to the Mortgaged
Property, whether or not required by this Mortgage, with the
Mortgagee forthwith after the binding of such insurance, and shall
deliver to the Mortgagee new policies (or certificates thereof
acceptable to the Mortgagee) for any insurance about to expire at
least thirty (30) days before such expiration. All such insurance
policies shall be written by such companies on such terms and in
such form and for such periods and amounts as the Mortgagee shall
from time to time designate or approve, shall be primary and
without right of contribution from any other insurance which may
be available, shall waive any right of set-off, counterclaim,
subrogation, or any deduction in respect of any liability of the
Mortgagor and the Mortgagee, shall provide that, with respect to
the Mortgagee, the insurance shall not be invalidated by any
action or inaction by the Mortgagor including, without limitation,
any defect in any representations made by the Mortgagor in the
procurement of such insurance, and shall provide that the
insurance policies may not be cancelled or amended without at
least thirty (30) days prior written notice to the Mortgagee. The
Mortgagor hereby grants the Mortgagee full power and authority as
attorney-in-fact of the Mortgagor, which appointment is
acknowledged by the parties hereto to be coupled with an interest,
to cancel or transfer such insurance, to collect and endorse any
checks issued in the name of the Mortgagor and to retain any
premium and to apply the same against the Indebtedness and other
charges outstanding under the Loan Documents.
9. MAINTENANCE AND ALTERATIONS. The Mortgagor shall
maintain the Mortgaged Property at all times in as good repair and
condition as the same now is or may hereafter be put, damage from
casualty expressly not excepted. The Mortgagor shall not take any
action, or permit any condition or activity, which could diminish
the value of the Mortgaged Property or invalidate any insurance
required to be provided under this Mortgage. The Mortgagor shall
not remove or alter or demolish any of the Improvements,
equipment, appliances, furnishing and Fixtures constituting part
of the Mortgaged Property without the prior written consent of the
Mortgagee and without promptly replacing any such item with an
item of equivalent utility and value. Upon notice at least 24
hours in advance of Mortgagee's inspection, the Mortgagor shall
permit the Mortgagee and its agents and employees to enter upon
the Mortgaged Property during normal business hours for the
purpose of inspecting the condition of the Mortgaged Property and
determining the Mortgagor's compliance with the covenants
contained herein.
10. USE AND COMPLIANCE WITH LAW. The Mortgagor shall not
permit any violation of any law, by-law, ordinance, public or
private restriction, regulation, order or code (including without
limitation, any rule or order of any Board of Fire Underwriters)
affecting the Mortgaged Property or the use thereof or take any
action or permit any condition or activity which could invalidate
any license or permit needed for the use and occupancy of the
Mortgaged Property. Additionally, Mortgagor warrants and
represents that:
(a) Mortgagor has not committed any act or omission
and is not, to the best of its knowledge, aware of any action or
omission by any prior owner that would cause the Mortgaged
Property to be subject to forfeiture pursuant to any Federal or
State law, rule or regulation; and
(b) the Mortgaged Property has not been acquired
with any proceeds from a transaction or an activity that would
cause the Mortgaged Property to be subject to such forfeiture.
Mortgagor covenants that Mortgagor will not use, operate or
occupy, and will not permit any third party to use operate or
occupy the Mortgaged Property, or any portion thereof, for any
purpose or activity that may give rise to such a forfeiture of the
Mortgaged Property.
11. TAXES AND ASSESSMENTS. The Mortgagor shall pay or
cause to be paid, not later than the last day upon which payment
may be made without penalty or interest, all Impositions, whether
or not assessed against the Mortgagor or the Mortgagee whether or
not assessed pursuant to the authority adopted before or after the
date of this Mortgage, if applicable or related in any way to the
Mortgaged Property, any interest in the Mortgaged Property of the
Mortgagor or the Mortgagee or the debt, obligations or performance
secured hereby, or the disbursement or application of the proceeds
therefrom excluding, however, any income or corporation excise tax
of the Mortgagee. If, at any time, the Mortgagee does not require
the escrow of payments for the Impositions, the Mortgagor shall
furnish to the Mortgagee receipted real estate tax bills for the
Mortgaged Property not later than ten (10) days after the date
from which any interest or penalty would accrue for non-payment
thereof unless such Imposition is being challenged, in good faith
by Mortgagor. The Mortgagor shall also furnish to the Mortgagee
evidence and payment of all other Impositions within fifteen (15)
days after written request therefor by the Mortgagee. If the
Mortgagor is not permitted by applicable law to pay any Imposition
or the payment of such Imposition would violate any usury law
applicable to the transaction contemplated hereby and by the other
Loan Documents, then, at the option of the Mortgagee, the
Indebtedness and other charges outstanding under the Loan
Documents shall become due and payable on the date specified by
written notice given by the Mortgagee to the Mortgagor, which date
shall be at least thirty (30) days after the date of such notice.
If requested by the Mortgagee, the Mortgagor shall pay to the
Mortgagee monthly, on the first day of each month, a sum
reasonably determined by the Mortgagee to be sufficient to provide
in the aggregate a fund adequate to pay each Imposition at least
thirty (30) days before it becomes delinquent, and, in addition,
shall pay to the Mortgagee, on demand, any balance necessary to
pay in full each Imposition at least ten (10) days before the date
on which it becomes due and payable. If such request is made by
Mortgagee, such sums must be applied by the Mortgagee to the
payment of the Impositions. The Mortgagor shall furnish to the
Mortgagee all original bills relating to any Impositions promptly
uponrequest by Mortgagee.
The Mortgagor shall have the right, after giving written
notice to the Mortgagee and subject to the conditions stated
below, to contest by appropriate legal proceedings the amount or
validity of any Imposition. In no event shall the Mortgagor be
entitled to delay payment of any Imposition if the delay in
payment would subject any portion of the Mortgaged Property to
possible foreclosure or, in any event, unless the Mortgagor
deposits with the Mortgagee a sum of money or such other security
as the Mortgagee deems reasonable to cover the amount of any such
Imposition plus any interest or penalty that may become due as a
result of such contest.
12. FILING FEES/TAXES.
(a) Mortgagor will pay all taxes, filing fees and
other charges, in connection with any transfer of the Mortgaged
Property by the Mortgagor or the Mortgagee, including the making
or satisfaction of this Mortgage, the taking of any action
permitted to be taken hereunder by the Mortgagee, the granting of
a deed or assignment in lieu of foreclosure, the appointment of a
receiver or any transfer pursuant to any sale of the Mortgaged
Property on a foreclosure, or by deed in lieu of foreclosure, or
the removal of any prior or subordinate mortgage.
(b) The provisions of this Section shall survive any
sale of the Premises on a foreclosure of this Mortgage or by deed
in lieu of foreclosure.
13. REPORTING REQUIREMENTS. The Mortgagor shall furnish
financial statements of the owner of the Mortgaged Property and
any guarantors and endorsers and, if requested, shall furnish such
information on a periodic basis without additional requests. Any
financial statements required herein shall be prepared in
accordance with generally accepted principles of accounting,
consistently applied, shall be in form and substance satisfactory
to the Mortgagee, and, if requested by the Mortgagee, shall be
certified by an independent public accountant satisfactory to the
Mortgagee. Notwithstanding the foregoing, the Mortgagor shall
provide the Mortgagee with Mortgagor's complete Federal and State
tax returns (together with all relevant schedules) and a financial
statement at such times and in a form required by the Note.
14. TRANSFERS. The Mortgagor shall not suffer or permit
a change, whether affected by voluntary act or by operation of
law, in the legal or direct or indirect beneficial ownership of
(i) the Mortgaged Property, or any portion thereof, or (ii) any
interest in the Mortgagor. The Mortgagor shall not enter into any
lease or combination of leases or other arrangements which have
the effect of transferring to any other person or affiliated group
the right to own, use or occupy all or substantially all of the
Mortgaged Property without the prior written consent of the
Mortgagee. The Mortgagee may, without notice to the Mortgagor,
deal with the Mortgagor's successor or successors in interest with
reference to this Mortgage and the Indebtedness in the same manner
as with the Mortgagor without in any way releasing, discharging or
modifying the Mortgagor's liability or obligations with respect to
this Mortgage or the Indebtedness. No transfer of any interest in
any part of the Mortgaged Property shall operate to release,
discharge, modify, change or affect the original liability of the
Mortgagor, or the priority of this Mortgage, either in whole or in
part.
15. CASUALTY AND CONDEMNATION-AWARD.
(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 ("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 ("Taking"), Mortgagor shall promptly notify
Mortgagee describing the nature and the extent of the Taking or
the Casualty, as the case may be. 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 (at Mortgagor's sole cost and
expense and regardless of whether the Insurance Proceeds or the
Taking Proceeds, if any, shall be sufficient or made available to
Mortgagee for the purpose) 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. However, upon a
Casualty or Taking resulting in a restoration cost that exceeds
25% of the then replacement value of the Improvements or a Taking
of more than 25% of the area of the Land, and application by
Mortgagee of the Insurance Proceeds or the Taking Proceeds to
reduction of the Indebtedness in accordance with this Mortgage,
Mortgagor shall be obligated only to remove any debris from the
Mortgaged Property and take such actions as are necessary to make
the undamaged or non-taken portion of the Mortgaged Property into
a functional economic unit insofar as it is possible under the
circumstances.
(c) Insurance Proceeds and Taking 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, payment or compensation payable on account of any
Taking ("Taking Proceeds"). In case of a Casualty, Mortgagee may,
in its sole unfettered discretion, 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 giving Mortgagee notice thereof at least
10 days in advance.
(ii) Assignment to Mortgagee. Mortgagor hereby
assigns, sets over and transfers to Mortgagee all Insurance
Proceeds and Taking Proceeds and authorizes payment of such
Insurance Proceeds and Taking Proceeds to be made directly to
Mortgagee. Mortgagee shall apply the Insurance Proceeds and
Taking Proceeds first to pay all reasonable expenses incurred by
Mortgagee in connection with the Casualty or Taking, including,
without limitation, attorney's fees and title fees. Unless
Paragraph (d) regarding Insurance Proceeds applies, Mortgagee may,
in its sole unfettered discretion, apply the balance of such
Insurance Proceeds or Taking Proceeds ("Net Proceeds") to either
of the following, or any combination thereof:
(aa) payment of the Indebtedness,
either in whole or in party, in any order determined by Mortgagee
in its sole unfettered discretion;
(bb) repair or replacement, either
partly or entirely, of any part of the Mortgaged Property so
destroyed, damaged or taken, in which case Mortgagee may impose
such terms, conditions and requirements for the disbursement of
the Insurance Proceeds or the Taking Proceeds as it, in its sole
unfettered discretion, deems advisable. Mortgagee shall not be a
trustee with respect to any Insurance Proceeds or Taking Proceeds,
and may commingle Insurance Proceeds or Taking Proceeds with its
funds without obligation to pay interest thereon.
If any portion of the Indebtedness 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 circumstance, be liable or responsible for
failure to collect or exercise diligence in the collection of any
Insurance Proceeds or Taking Proceeds.
(d) Disbursement of Insurance Proceeds to Mortgagor.
Mortgagee will disburse the Insurance Proceeds to Mortgagor
provided: (i) there exists no Event of Default or occurrence or
facts which with the passage of time, the giving of notice, or
both, will be an Event of Default which remains uncured at any
time before or during the Restoration; (ii) the Casualty does not
occur within nine months of the Maturity Date; and (iii) the
conditions in this Paragraph 15 are satisfied.
As to any loss or damage which Mortgagee estimates can be
repaired for less that 1/2 of 1% of the then Indebtedness,
Mortgagee shall disburse to Mortgagor from the Net Proceeds the
amount which it determines is necessary to repair the damage,
which amounts shall be used by Mortgagor to restore the damage to
the Mortgaged Property caused by the Casualty.
As to all other Casualties, Mortgagee shall disburse the
Net Proceeds related thereto to Mortgagor on the following terms
and conditions:
(i) Prior to the first and each subsequent
disbursement, Mortgagor shall give proof satisfactory to the
Mortgagee that:
(aa) Mortgagee is holding a fund comprised of
the Net Proceeds and, if necessary, additional deposits made by
Mortgagor sufficient to restore the Property to its condition and
use required of Mortgagor under the terms of the Leases
("Restoration"), together with a fund comprised of Net Proceeds or
funds deposited by Mortgagor, sufficient to pay operating
expenses, Property Taxes and Charges, the Monthly Payments (as
defined in the Note) and other so-called "carrying costs" of the
Mortgaged Property during the period of Restoration;
(bb) there are no laws preventing Restoration
of the Mortgaged Property;
(cc) the Restoration will be conducted under
the supervision of an architect, engineer and/or a general
contractor selected by and paid by Mortgagor and approved by
Mortgagee;
(dd) the Restoration will be performed pursuant
to plans and specifications approved by Mortgagee and by a
contractor or contractors approved by Mortgagee; and
(ee) the Mortgaged Property, after such
Restoration, shall be in compliance with applicable laws.
(ii) With respect to each disbursement and
accompanying each request therefor, there shall be delivered to
Mortgagee:
(aa) a certificate addressed to Mortgagee and
executed by Mortgagor and by the architect, engineer or general
contractor supervising the Restoration that such disbursement is
to pay for costs of the Restoration not paid previously by any
other prior disbursement, that the amount of such disbursement
does not exceed the aggregate of such costs incurred or paid on
account of work, labor or services performed and materials
installed in or stored upon the Mortgaged Property at the date of
such certificate and that the disbursement requested, together
with the disbursements made prior thereto, collectively, as a
percentage of the total Net Proceeds, do not exceed the percentage
of completion of the Restoration; and
(bb) an endorsement to Mortgagee's title
insurance policy, in which the making of the disbursement is
recognized and the effective date of coverage is changed to the
date of disbursement.
(iii) Each disbursement shall be in the amount not
greater than 90% of the costs described in the certificate
referred to in Paragraph (d)(ii)(aa) hereof. Disbursement of the
final balance of the Net Proceeds, constituting not less than ten
percent (10%) thereof, shall be disbursed only upon delivery to
Mortgagee of the following, in addition to the foregoing:
(aa) evidence satisfactory to Mortgagee that
all claims then existing for labor, services and materials
enforceable by lien upon the Mortgaged Property have been paid in
full or provision acceptable to Mortgagee has been made therefor;
(bb) a certificate of such architect, engineer
or general contractor that the Restoration of the Mortgaged
Property has been completed in a good workmanlike manner and in
accordance with all laws;
(cc) an estoppel affidavit in form satisfactory
to Mortgagee from each tenant occupying or leasing space in the
Mortgaged Property affected by the Casualty; and
(dd) an as-built survey of the Improvements
certified to Mortgagee and in form satisfactory to Mortgagee.
(iv) Mortgagor shall complete the Restoration within
180 days of the Casualty subject to delay beyond Mortgagor's
control other than lack of funds. If Mortgagor does not complete
the Restoration within such time, Mortgagee, at its option, may
restore the Mortgaged Property for and on Mortgagor's behalf and
may do any act or thing as Mortgagee deems necessary or
appropriate to that end and the expenses of Restoration in excess
of Net Proceeds shall be borne by Mortgagor.
(v) If the quality of the Restoration is at
least equal to the quality of the Improvements before the
Casualty, any Net Proceeds in excess of the amount used in payment
of the Restoration shall be distributed to Mortgagor.
Mortgagee shall not be a trustee with respect to any
Insurance Proceeds and may mingle Insurance Proceeds with its
funds without obligation to pay interest thereon. Mortgagee shall
in no event be liable for the performance or observance of any
covenant or condition arising under any lease in connection with
the Mortgaged Property nor obligated to take any action to restore
the Mortgaged Property.
16. HAZARDOUS WASTE AND SUBSTANCES; OCCUPATIONAL HEALTH
AND SAFETY AND ENVIRONMENTAL LAWS, STANDARDS AND REGULATION.
Mortgagor shall comply with all laws, governmental standards and
regulations applicable to Mortgagor or to the Mortgaged Property
in respect of occupational health and safety, hazardous wastes and
substances and the environment. Mortgagor shall promptly notify
Mortgagee of its receipt of any notice of violation of or non-
compliance with any such law, standard or regulation.
Mortgagor covenants that it shall not unlawfully "release" or
cause an unlawful "threat of release" of any "hazardous materials"
or "oil" (as such terms are defined in the Massachusetts Oil and
Hazardous Material Release Prevention and Response Act, Chapter
21E of the Massachusetts General Laws) on the Mortgaged Property
or on any other property in the Commonwealth of Massachusetts,
whether or not owned by the Mortgagor. Furthermore, Mortgagor
covenants, and it shall be a further condition of this Mortgage:
(a) that Mortgagor will not incur due to its acts or
omissions during the term of this Mortgage any liability to the
Commonwealth of Massachusetts under such Act on the Mortgaged
Property or elsewhere;
(b) that no lien on the Mortgaged Property will
arise due to the acts or omissions of Mortgagor during the term of
this Mortgage under such Act;
(c) that no portion of the Mortgaged Property during
the term of this Mortgage shall be used for the generation,
storage, treatment, use, transport or disposal of any substance
for which a license is required by Chapter 21C of the
Massachusetts General Laws, viz, so-called hazardous wastes except
for customary quantities in compliance with all applicable laws
and regulations;
In furtherance of the foregoing, Mortgagor covenants and
agrees to take all steps necessary in order to prevent any such
lien from attaching to the Mortgaged Property or any part thereof.
Mortgagor hereby agrees to indemnify and hold Mortgagee harmless
from all loss, costs, damage, claim and expense incurred by
Mortgagee on account of Mortgagor's failure to perform the
obligations of this Section or arising out of or in any way
connected with the application to the Mortgaged Property or any
part thereof of any current or future legislation related to the
presence of any hazardous waste or materials upon the Mortgaged
Property. The preceding sentence shall not constitute a
limitation on any similar or additional rights to indemnity in
favor of Mortgagee, whether or not same exist hereunder or under
any of the other Loan Documents, and whether existing at law or
equity.
17. EVENT OF DEFAULT. The Indebtedness and all other
charges due under the Note, this Mortgage and the other Loan
Documents shall become due, at the option of Mortgagee, if one or
more of the following events (an "Event of Default") shall occur:
(a) Mortgagor fails to pay any interest or principal
when due or within applicable grace and cure periods, if any,
provided in the Note;
(b) breach of any covenant contained in the sections
herein entitled "Insurance", "Transfers", and "Taxes and
Assessments";
(c) breach of any other covenant, condition or
agreement contained herein and in the Loan Documents remaining
uncured for a period in excess of ten (10) days after Mortgagee
has provided Mortgagor with written notice of such breach;
provided that in a case of any breach which is susceptible to cure
but cannot be cured within ten (10) days through the exercise of
reasonable diligence, so long as the Mortgagor commences such cure
within such ten (10) day period, such breach remains susceptible
to cure, and the Mortgagor diligently pursues such cure, such
breach shall not be deemed to create an Event of Default
hereunder;
(d) The actual or threatened removal, demolition or
structural alteration, in whole or in part, of any Improvement,
without the prior written consent of Mortgagee; or the removal,
demolition or destruction in whole or in part, of any Fixtures
without replacing the same with Fixtures at least equal in quality
and condition to those replaced, free from any security interest
or other encumbrance thereon and free from any reservation of
title thereto; or the commission of any waste in respect to the
Mortgaged Property; or
(e) breach of any other covenant, condition or
agreement in any loan document or in any other mortgage, debt or
obligation of or from the Mortgagor to the Mortgagee or in any
other mortgage or instrument which constitutes a lien on all or
any part of the Mortgaged Property;
(f) failure of the Mortgagor to cause to be
dismissed any proceeding against the Mortgagor, and, if
applicable, any holder of a general partnership interest in the
Mortgagor, any guarantor of any of the Obligations or any endorser
of the Note (the Mortgagor and, if applicable, any such general
partner, guarantor or endorser hereinafter referred to as an
"Obligor") under any law relating to bankruptcy, reorganization,
insolvency or relief of debtors, within ninety (90) days from the
date upon which such proceeding is filed or instituted, or the
filing or other institution of a proceeding by any Obligor under
any such law;
(g) failure of an Obligor to cause to be dismissed a
proceeding for the enforcement of a money judgement under the laws
of the Commonwealth of Massachusetts, and which materially affects
the financial condition ofMortgagor, instituted against said
Obligor within thirty (30) days from the date upon which such
proceeding is filed or instituted unless such proceeding is
contested in good faith by the Obligor and bonded or otherwise
secured to Mortgagee's satisfaction;
(h) the liquidation, termination, dissolution,
merger or a consolidation of any Obligor which is not an
individual, the insolvency of any Obligor or the inability of any
Obligor to pay such Obligor's debts when due;
(i) failure of Mortgagor to pay within fifteen (15)
days after notice and demand any filing or refiling fees required
hereunder; or
(j) material inaccuracy of any statement,
representation or warranty made by the Mortgagor to the Mortgagee
in this Mortgage or in any Loan Document, or any instrument or
statement submitted to the Mortgagee by an Obligor, and which
results in any loss or damage to the Mortgagee.
18. STATUTORY POWER OF SALE. This Mortgage is upon the
STATUTORY CONDITION and upon the further condition that all
covenants and agreements on the part of Mortgagor herein
undertaken shall be kept and fully and seasonably performed and
that no breach of any other of the conditions specified herein
shall be permitted, for any breach of which covenants or
conditions, Mortgagee shall have the STATUTORY POWER OF SALE.
19. APPLICATION OF DEPOSITS AFTER DEFAULT. If the
Mortgagor shall default in the performance or observance of any
covenant or agreement contained herein or in the Note or other
Loan Documents, the Mortgagee may apply any deposit, payment or
any sum due from the Mortgagee to any Obligor toward the
Indebtedness and other charges outstanding under the Loan
Documents without first enforcing any other rights of the
Mortgagee against any Obligor or against the Mortgaged Property.
20. SEPARATE FORECLOSURE SALES AND WAIVER OF MARSHALLING.
The Mortgagee may sell the Mortgaged Property and other security
in one lot or in parts or parcels. Such sales may be held from
time to time by public sale and the power of sale herein given to
the Mortgagee shall not be fully executed until all of the
Mortgaged Property and other security not previously sold shall
have been sold. If surplus proceeds are realized from such a
foreclosure sale, the Mortgagee shall not be liable for any
interest thereon pending distribution of such proceeds to the
Mortgagor by the Mortgagee. Any separate items of property sold
together for a single price may be accounted for in one account
without distinction between the items of security or without
assigning to them any proportion of such proceeds. The Mortgagor
hereby waives the application of any doctrine of marshalling of
assets.
The Mortgagor agrees that the requirement of the Uniform
Commercial Code with respect to personal property that a secured
party give a debtor reasonable notice of any proposed sale or
disposition of the collateral shall be met if such notice is given
to Mortgagor at least five (5) days before such time of sale or
disposition.
21. COLLECTION OF ACCOUNTS. After an Event of Default,
the Mortgagee may communicate with account debtors in order to
verify the existence, amount and terms of any accounts or contract
rights and to notify account debtors of the Mortgagee's security
interest in their accounts. When requested by the Mortgagee, the
Mortgagor shall notify account debtors and indicate on all
xxxxxxxx that payments are to be made directly to the Mortgagee.
After an Event of Default, the Mortgagee may require that payments
on accounts be made directly to the Mortgagee and the Mortgagee
shall have full power to collect, compromise, endorse, sell or
otherwise deal with the accounts or proceeds thereof and to
perform the terms of any contract in order to create accounts in
the Mortgagee's name or in the name of the Mortgagor with respect
to the business conducted with respect to and at the location of
the Mortgaged Property.
22. APPOINTMENT OF RECEIVER. Mortgagee, in any action to
foreclose this Mortgage, shall be entitled, without notice and as
a matter of right and without regard to the adequacy of any
security for the Indebtedness or the solvency of Mortgagor, upon
application to any court of competent jurisdiction, to the
appointment of a receiver of the rents, issues and profits of the
Mortgaged Property.
23. WAIVER OF JURY TRIAL. THE MORTGAGOR AND THE
MORTGAGEE EACH HEREBY WAIVES TRIAL BY JURY IN ANY LITIGATION IN
ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF
THIS MORTGAGE, ANY OTHER LOAN DOCUMENT OR THE LOAN, OR THE
VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT
THEREOF, OR THE RELATIONSHIP BETWEEN MORTGAGOR AND MORTGAGEE AS
BORROWER AND LENDER, OR ANY OTHER CLAIM OR DISPUTE HOWEVER ARISING
BETWEEN THE MORTGAGOR AND MORTGAGEE.
24. INTEREST TO ACCRUE. If the outstanding Indebtedness
shall either mature or become due because of an acceleration by
the Mortgagee of the Mortgagor's obligation to repay the
Indebtedness caused by an Event of Default, then interest on the
Indebtedness shall continue to accrue at the Default Rate, as
defined in the Note, until paid in full.
25. EFFECT OF RELEASES AND WAIVERS. Any failure by
Mortgagee to insist upon the strict performance by Mortgagor of
any of the covenants, terms and provisions of this Mortgage or any
of the other Loan Documents shall not be deemed to be a waiver of
any of the covenants, terms and provisions of this Mortgage or any
of the Loan Documents, and Mortgagee, notwithstanding any such
failure, shall have the right thereafter to insist upon the strict
performance by Mortgagor of any and all of the covenants, terms
and provisions of this Mortgage and any of the Loan Documents.
Neither Mortgagor nor any other person or entity now or hereafter
obligated for the payment of the whole or any part of the
Indebtedness shall be relieved of such obligation by reason of (i)
the failure of Mortgagee to comply with any request of Mortgagor,
or of any other person or entity so obligated, (ii) the failure of
Mortgagee to take action to foreclose this Mortgage or otherwise
enforce any of the covenants, terms and provisions of this
Mortgage or any of the Loan Documents, (iii) the release,
regardless of consideration, of the whole or any part of the
security held for payment of the Indebtedness and the performance
of all other obligations hereunder and under the other Loan
Documents, or (iv) any agreement or stipulation between the
Mortgagee and any subsequent owner or owners of the equity of
redemption in the Mortgaged Property modifying the covenants,
terms and provisions of this Mortgage or the Note without first
having obtained the consent of Mortgagor or such other person or
entity. In the last mentioned event, Mortgagor and all such other
persons or entities shall continue to be liable to make such
payments according to the terms and provisions of the Mortgage as
amended, unless expressly released and discharged of record by
Mortgagee. Mortgagee may release, regardless of consideration,
any part of the security held for payment of the Indebtedness and
performance of the Obligations without, as to the remainder of the
security, in any way impairing or affecting the lien of this
Mortgage or the priority of such lien over any subordinate lien.
Mortgagee may resort for the payment of the Indebtedness and
performance of the Obligations to any other security therefor held
by Mortgagee, in such order and manner as Mortgagee may elect.
26. MORTGAGEE RIGHT TO CURE AND EXPENSES. The Mortgagee
shall be entitled, but not obligated, to cure any failure of the
Mortgagor hereunder and under the other Loan Documents and to
commence, intervene in or otherwise participate in any legal or
equitable proceeding which, in the Mortgagee's sole judgement,
affects the Mortgaged Property or any rights or obligations
created or secured by this Mortgage or the other Loan Documents.
If the Mortgagee shall become involved in any action or course of
conduct with respect to the Note, this Mortgage, any of the other
Loan Documents, the Mortgaged Property or other security for the
Indebtedness and the Obligations in order to protect its interest
therein or to cure any default of the Mortgagor hereunder or under
the other Loan Documents, the Mortgagor shall, on demand,
reimburse the Mortgagee for all charges, cost and expenses
incurred by the Mortgagee in connection therewith, including,
without limitation, reasonable attorneys' fees. All such charges
incurred through the operation of this paragraph, together with
interest thereon as described in this paragraph, shall be added to
the outstanding Indebtedness and shall be secured by the Loan
Documents.
27. INTERVENING LIENS. Should any agreement be hereafter
entered into modifying or changing the terms of any Loan Document,
the rights of the parties to such agreement shall be superior to
the rights of the holder of any intervening lien.
28. REMEDIES CUMULATIVE. The rights and remedies herein
afforded to Mortgagee and its successors and assigns shall be
cumulative and supplementary to and not exclusive of any other
rights and remedies which the Mortgagee and its successors and
assigns may have under the other Loan Documents, at law or in
equity.
29. FURTHER ASSURANCES. The Mortgagor agrees to execute
and cause to be filed or recorded, and hereby appoints the
Mortgagee its duly authorized attorney-in-fact, which appointment
is acknowledged by the parties hereto to be coupled with an
interest and is irrevocable, with full power of substitution and
with authority to execute, file and record on behalf of the
Mortgagor, all instruments from time to time deemed by the
Mortgagee to be necessary or appropriate to evidence further the
obligations of the Mortgagor pursuant to or secured by this
Mortgage or the other Loan Documents, or to secure further to the
Mortgagee the security intended to be provided by this Mortgage.
Mortgagor will pay all costs, expenses and fees incurred as a
result of the operation of this paragraph.
30. STATEMENT OF AMOUNT DUE. Mortgagor, within five (5)
days upon request in person or within fifteen (15) days upon
request by mail, will furnish a written statement duly
acknowledged of the amount due on this Mortgage and whether any
offsets or defenses exist against the Indebtedness.
31. NOTICES. Any notices required or permitted to be
given hereunder shall be: (i) personally delivered or (ii) given
by registered or certified mail, postage prepaid, return receipt
requested, or (iii) forwarded by overnight courier service, in
each instance addressed to the addressee at the address for such
party set forth at the head of this Mortgage, or such other
address as each may designate in writing to the other. All
notices given hereunder shall be in writing and shall be deemed
given, in the case of notice by personal delivery, upon actual
delivery, and in the case of mail or courier service, upon
deposit with the U.S. Postal Service or delivery to the courier
service.
32. TIME OF THE ESSENCE. Time is of the essence with
respect to each and every covenant, agreement and obligation of
Mortgagor under this Mortgage, the Note and any and all other Loan
Documents.
33. INDEMNIFICATION; SUBROGATION; WAIVER OF OFFSET.
(a) Mortgagor shall indemnify, defend and hold
Mortgagee harmless against: (i) any and all claims for brokerage,
leasing, finders or similar fees which may be made relating to the
Mortgaged Property or the Loan, and (ii) against any and all
liability, obligations, losses, damages, penalties, claims,
actions, suits, costs, and expenses (including its reasonable
attorneys' fees, together with reasonable appellate counsel fees,
if any) of whatever kind or nature which may be imposed on or
incurred by Mortgagee at any time pursuant either to a judgement
or decree or other order entered into by a court or administrative
agency or to a settlement reasonably approved by Mortgagor, which
judgment, decree, order or settlement relates in any way to or
arises out of the offer, sale or lease of the Mortgaged Property
and/or the ownership, use, occupation or operation of any portion
of the Mortgaged Property, unless such judgment or decree arises
from Mortgagee's negligence after Mortgage takes control of the
Mortgaged Property.
(b) If Mortgagee is made a party defendant to any
litigation concerning the Loan instituted by an individual or
entity not party to the Loan Documents, this Mortgage, the
Mortgaged Property, or any part thereof, or any interest therein,
or the occupancy thereof, then Mortgagor shall indemnify, defend
and hold Mortgagee harmless from all liability by reason of said
litigation, including reasonable attorneys' fees (together with
reasonable appellate counsel fees, if any) and expenses incurred
by Mortgagee in any such litigation, whether or not any such
litigation is prosecuted to judgment. If Mortgagee commences an
action against Mortgagor to enforce any of the terms hereof or to
prosecute any breach by Mortgagor of any of the terms hereof or to
recover any sum secured hereby, Mortgagor shall pay to Mortgagee
such reasonable attorneys' fees (together with reasonable
appellate counsel fees, if any) and expenses so incurred. The
right to such attorneys fees (together with reasonable appellate
counsel fees, if any) and expenses shall be deemed to have accrued
on the commencement of such action, and shall be enforceable
whether or not such action is prosecuted to judgment. If
Mortgagor breaches any term of this Mortgage, Mortgagee may
employ an attorney or attorneys to protect its rights hereunder,
and in the event of such employment following any breach by
Mortgagor, Mortgagor shall pay Mortgagee reasonable attorneys'
fees (together with reasonable appellate counsel fees, if any) and
expenses incurred by Mortgagee, whether or not an action is
actually commenced against Mortgagor by reason of such breach.
(c) A waiver of subrogation shall be obtained by
Mortgagor from its insurance carrier and, consequently, Mortgagor
waives any and all right to claim or recover against Mortgagee,
its officers, employees, agents and representatives, for loss of
or damage to Mortgagor, the Mortgaged Property, Mortgagor's
property or the property of others under Mortgagor's control from
any cause insured against or required to be insured against by the
provisions of this Mortgage.
(d) All sums payable by Mortgagor hereunder shall be
paid without notice (except as may otherwise be provided herein),
demand, counterclaim, setoff, deduction or defense and without
abatement, suspension, deferment, diminution or reduction, and the
obligations and liabilities of Mortgagor hereunder shall in no way
be released, discharged or otherwise affected by reason of: (i)
any damage to or destruction of or any condemnation or similar
taking of the Mortgaged Property or any part thereof; (ii) any
restriction or prevention of or interference with any use of the
Mortgaged Property or any part thereof; (iii) any title defect or
encumbrance or any eviction from the Mortgaged Property or the
Improvements or any part thereof by title superior or otherwise;
(iv) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation, or other like proceeding
relating to Mortgagee, or any action taken with respect to this
Mortgage by any trustee or receiver of Mortgagee, or by any court,
in such proceeding; (v) any claim which Mortgagor has, or might
have, against Mortgagee; (vi) any default or failure on the part
of Mortgagee to perform or comply with any of the terms hereof or
of any other agreement with Mortgagor; or (vii) any other
occurrence whatsoever, whether similar or dissimilar to the
foregoing, whether or not Mortgagor shall have notice or knowledge
of any of the foregoing. Mortgagor waives all rights now or
hereafter conferred by statute or otherwise to any abatement,
suspension, deferment, diminution, or reduction of any sum secured
hereby and payable by Mortgagor.
34. SEVERABILITY/HEADINGS/BINDING EFFECT. This Mortgage
and the other Loan Documents constitute the entire agreement
between Mortgagor, any guarantors or endorsers, and Mortgagee and,
to the extent that any writings not signed by Mortgagee or oral
statements at any time made or had are inconsistent with the
provisions of this Mortgage and the other Loan Documents, the
unsigned writings and oral statements shall be null and void.
This Mortgage and all of the other Loan Documents shall be
governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts.
In case any provision of the Note, this Mortgage, or any Loan
Documents shall be found unenforceable or invalid for any reason,
such provision shall be deemed modified to the extent necessary to
be enforceable or if such modification is not practicable, such
provision shall be deemed deleted from this Mortgage or such other
Loan Documents. The headings of Sections and Paragraphs shall be
ignored in interpreting this Mortgage. All of the covenants and
agreements of the Mortgagor herein contained shall be binding upon
the Mortgagor, its heirs, executors, administrators, successors
and assigns and shall be joint and several if more than one person
constitute the Mortgagor.
35. YEAR 2000 COMPLIANCE. Borrower represents and
warrants that (a) Borrower has performed a formal assessment of
the effect of year 2000 on Mortgagor's computer systems and
business operations, (b) Mortgagor has converted the assessment to
a plan ("Year 2000 Compliance Plan") with budget and
implementation dates, including a statement of awareness of the
problem, an inventory checklist of equipment affected, and an
assessment of complexity, remediation, validation, testing and
implementation, (c) Mortgagor has sufficient resources to
implement the Year 2000 Compliance Plan and (d) the Year 2000
Compliance Plan has been completed.
IN WITNESS WHEREOF, Mortgagor has caused this instrument to
be executed by Xxxxxxx X. Xxxx, III, its duly authorized President
and Treasurer, and its corporate seal to be hereunto affixed as of
the date first above written.
PITTSFIELD MOLD & TOOL, INC.
By:/s/Xxxxxxx X. Xxxx, III
------------------------------
Xxxxxxx X. Xxxx, III,
President and Treasurer
COMMONWEALTH OF MASSACHUSETTS
BERKSHIRE, ss.
September 29, 1999
Then personally appeared the above-named Xxxxxxx X. Xxxx,
III, President and Treasurer, who acknowledged the foregoing
instrument to be the free act and deed of Pittsfield Mold & Tool,
Inc., before me,
/s/Xxxxxx X. Denmark
---------------------------------
Xxxxxx X. Denmark, Notary Public
My Commission Expires: 7/27/01
EXHIBIT A TO
MORTGAGE AND SECURITY AGREEMENT
[description of real property]
