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Exhibit 99.1
MORTGAGE AND SECURITY AGREEMENT
AND ASSIGNMENT OF LEASES AND RENTS
THIS MORTGAGE AND SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS
(this "Mortgage") made as of March 2, 2001 by ArQule, Inc., a Delaware
corporation, with its principal place of business at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Mortgagor") in favor of Fleet National Bank, with an
office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Mortgagee").
WITNESSETH, that for consideration paid, in order to secure (a) the
payment of existing indebtedness in the currently outstanding principal balance
of Ten Million Seven Hundred Thousand and 00/100 ($10,700,000.00) Dollars,
lawful money of the United States and the interest thereon, to be paid in
accordance with that certain promissory note dated March 18, 1999, as amended by
Allonge to Note of even date herewith (as so amended, the "Facility One Term
Note") in the original face principal amount of $15,000,000.00 issued by the
Mortgagor and payable to the order of the entity formerly known as "Fleet
National Bank" ("Old FNB"), the Mortgagee having succeeded by merger to the
interests of Old FNB thereunder; (b) the payment of indebtedness in the sum of
Sixteen Million and 00/100 ($16,000,000.00) Dollars, lawful money of the United
States and the interest thereon, to be paid in accordance with that certain
promissory note in said principal amount of even date herewith (the "Facility
Two Term Note") issued by the Mortgagor and payable to the order of the
Mortgagee (the Facility One Term Note and the Facility Two Term Note being
hereinafter referred to, collectively, as the "Mortgage Notes" and,
individually, as a "Mortgage Note"); (c) the payment of all other charges
provided for herein and/or in any Mortgage Note and the payment of all other
money secured hereby; (d) the performance of all covenants and agreements of the
Mortgagor hereinafter contained; and (e) the payment and performance of any and
all other liabilities, obligations, covenants and agreements (direct or
indirect, absolute or contingent, sole, joint or several, now existing or
hereafter arising) of the Mortgagor to the Mortgagee, including, without
limitation, those now or hereafter arising under that certain letter agreement
dated March 18, 1999, originally made between the Mortgagor and Old FNB, the
Mortgagee having succeeded by merger to the rights and obligations of Old FNB
thereunder, as amended by that certain Loan Modification Agreement of even date
herewith between the Mortgagor and the Mortgagee (as so amended, the "Loan
Agreement") and all amendments, restatements, renewals, extensions and
substitutions of, for or to any of the foregoing, the Mortgagor does hereby
grant, bargain, sell, convey, assign, transfer, grant a security interest in and
mortgage to the Mortgagee and to its successors and assigns, WITH MORTGAGE
COVENANTS:
ALL those certain lots, pieces or parcels of land with the buildings
and improvements now or hereafter located thereon, situate, lying and being in
the City of Woburn, County of Middlesex, Commonwealth of Massachusetts, commonly
known and numbered as ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ (sometimes also known as 195 and ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇), ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, which lots, pieces or parcels of land
are more particularly bounded and described as set forth on Exhibit A attached
hereto and made a part hereof.
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TOGETHER with all and singular the tenements, hereditaments and
appurtenances thereunto belonging or in anywise appertaining, and the reversion
or reversions, remainder and remainders, rents, issues and profits thereof; and
also all the estate, right, title, interest, property, claim and demand
whatsoever of the Mortgagor of, in and to the same and of, in and to every part
and parcel thereof;
TOGETHER with all right, title and interest of the Mortgagor, if any,
in and to the land lying in the bed of any street, road or avenue, opened or
proposed, in front of or adjoining the above-described real estate to the
centerline thereof;
TOGETHER with all machinery, apparatus, equipment, appliances,
fittings, fixtures, building materials and articles of personal property of the
Mortgagor of every kind and nature whatsoever, now or hereafter located at the
above-described real estate and used or to be used in the construction,
operation or maintenance of the buildings or improvements now or hereafter
located thereon, all whether now owned or hereafter acquired, whether affixed or
moveable, and all replacements of, substitutions for and accessions to any of
same and all products and proceeds (including, without limitation, insurance
proceeds) of any of foregoing (all of the foregoing being collectively referred
to herein as the "Building Equipment");
TOGETHER with any and all awards or payments, including interest
thereon, and the right to receive the same, which may be made with respect to
the above-described property as a result of (a) the exercise of the right of
eminent domain, (b) the alteration of the grade of any street, or (c) any other
injury to or decrease in the value of said property, to the extent of all
amounts which may be secured by this Mortgage at the date of receipt of any such
award or payment by the Mortgagee, and of the reasonable counsel fees, costs and
disbursements incurred by the Mortgagee in connection with the collection of
such award or payment. The Mortgagor 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 or payment;
TOGETHER with all rights of the Mortgagor under all leases, tenancies,
occupancy agreements, licenses, construction contracts, architect's contracts,
development agreements, management agreements and other agreements now or
hereafter entered into by the Mortgagor with respect to the construction of any
improvements on the above-described property and/or the occupancy or operation
of any such improvements;
TOGETHER with all rents, receipts, issues, profits, accounts, revenues,
security deposits, income and other moneys received or receivable by or on
behalf of the Mortgagor from any source in connection with the ownership or the
operation of all or any part of the above-described real estate, buildings and
improvements, and all rights to receive the same whether in the form of accounts
receivable, contract rights, chattel paper, instruments or general intangibles,
and the proceeds thereof; all of the foregoing, whether now existing or
hereafter coming into existence and whether now owned or held or hereafter
acquired by the Mortgagor;
TOGETHER with all products and proceeds (including, without limitation,
insurance proceeds) of any of the foregoing;
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TOGETHER with all books and records relating to any of the foregoing.
TO HAVE AND TO HOLD all of the above granted and described real estate,
Building Equipment, property, rights and interests (collectively, the "Mortgaged
Premises") unto the Mortgagee, its successors and assigns, forever.
PROVIDED ALWAYS, and these presents are upon this express condition,
that if (A) the Mortgagor shall well and truly pay unto the Mortgagee, its
successors or assigns, the principal sum of each Mortgage Note and the interest
thereon at the times and in the manner provided for in such Mortgage Note and
shall pay all other sums secured hereby and shall well and truly abide by and
comply with each and every covenant and condition secured hereby or set forth
herein and (B) all other moneys now owing or hereafter coming due under the Loan
Agreement shall have been duly paid in full and discharged, then these presents
and the estate hereby granted shall cease and determine.
AND the Mortgagor covenants with the Mortgagee as follows:
1. The Mortgagor will pay all sums of money required to be paid
pursuant to each Mortgage Note and all interest thereon, at the times and in the
manner provided for in each respective Mortgage Note.
2. The Mortgagor will keep the buildings on the Mortgaged Premises and
the Building Equipment insured for the benefit of the Mortgagee against loss or
damage by fire, lightning, windstorm, hail, explosion, vandalism, malicious
mischief and all extended coverage and special extended coverage perils, all in
amounts approved by the Mortgagee not less than 100% of full replacement value
of the Mortgaged Premises (exclusive of foundations), with agreed amount
endorsement, and, when and to the extent required by the Mortgagee, against any
other risk typically insured against by persons operating like properties in the
locality of the Mortgaged Premises. The Mortgagor shall also obtain and maintain
(to the extent available at commercially reasonable rates) boiler and machinery
coverage (direct damage and use and occupancy) on a replacement cost basis where
deemed advisable by the Mortgagee. At the request of the Mortgagee, the
Mortgagor shall also obtain, to the extent available at commercially reasonable
rates, insurance with respect to loss from earthquake. In addition, the
Mortgagor shall obtain and maintain commercial general liability insurance
protecting the Mortgagor and the Mortgaged Premises against liability for
injuries to persons in the minimum amount of $2,000,000 per person and
$5,000,000 for each occurrence in the aggregate. During any construction, the
Mortgagor will also carry or cause to be carried builders' risk-all risk
insurance satisfactory to the Mortgagee. All insurance herein provided for shall
be in such form and written by such companies as may be reasonably approved by
the Mortgagee. All policies of insurance which insure against any loss or damage
to the Mortgaged Premises shall provide for loss to be payable to the Mortgagee
pursuant to the standard mortgagee clause. A duplicate original copy or
certificate of each policy of insurance shall be furnished to the Mortgagee. All
policies of insurance shall contain a provision forbidding cancellation of such
insurance either by the carrier or by the insured until at least 30 days after
written notice of the proposed cancellation
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is given by registered mail, return receipt requested, to the Mortgagee; and
whenever any insurance is to expire for any reason, the Mortgagor will deliver
to the Mortgagee, at least 30 days prior to such expiration, a renewal or
replacement policy or certificate thereof, complying with all of the conditions
of this Section, marked "premium paid" or accompanied by other evidence of
payment satisfactory to the Mortgagee. If the Mortgagor defaults in so insuring
the Mortgaged Premises or in so delivering the policies, the Mortgagee may, at
its option, effect such insurance and pay the premiums therefor, and the
Mortgagor will reimburse the Mortgagee on demand for any premiums so paid, with
interest from the time of payment by the Mortgagee, all as provided in Section 4
below, and the same shall be secured by this Mortgage. In the event of damage to
or destruction of all or any part of the Mortgaged Premises, the Mortgagor shall
proceed forthwith to repair, restore and replace the Mortgaged Premises to
substantially their condition immediately prior to such event or to a condition
of at least equivalent value (and in any event to such condition and within such
time period as shall be required in order to avoid any default under any leases,
agreements or other restrictions affecting the Mortgaged Premises), regardless
of whether or not the proceeds of any or all policies of insurance covering such
damage or destruction shall be available or sufficient to pay the cost thereof.
Following any damage to or destruction of the Mortgaged Premises, the
parties shall cooperate in order to recover any applicable proceeds of insurance
under this Section 2, with the Mortgagor to have primary responsibility to
recover the proceeds. Such proceeds shall be paid to the Mortgagee pursuant to
the loss payee clause of the relevant policy. From such proceeds, if any, as are
actually received by the Mortgagee, the Mortgagee shall provide for the payment
or reimbursement of its reasonable expenses of obtaining the recovery as
reasonably determined by the Mortgagee. The Mortgagee shall then give notice to
the Mortgagor of such expenses and of the amount of the remaining proceeds
actually held by the Mortgagee (the "Net Proceeds"). If the Mortgagor desires to
use any or all of the Net Proceeds for repair, restoration or replacement of the
Mortgaged Premises, the Mortgagor shall request same from the Mortgagee within
20 days after receipt of the aforesaid notice of the amount of the Net Proceeds.
Provided that all of the below-described Readvancement Conditions shall have
been satisfied as at the time of each release of all or any portion of the Net
Proceeds, the Mortgagee, subject to the other requirements described below, will
permit the use of the Net Proceeds, to the extent required, for such repair,
restoration and replacement. As used herein, the term "Readvancement Conditions"
means each of the following: (1) no Event of Default, nor any event or
circumstance which with the passage of time or giving of notice or both could
become an Event of Default, shall have occurred and be then continuing, and (2)
the Net Proceeds, in the reasonable opinion of the Mortgagee, shall be
sufficient for the purpose of the required repair, restoration and replacement
(or, if insufficient, the Mortgagor shall have deposited with the Mortgagee, for
application as provided in this Section, additional funds in the amount of such
insufficiency). Any disbursement of such Net Proceeds and such additional funds,
if any, will be made subject to the reasonable requirements of the Mortgagee,
including, without limitation, requirements as to certification by an architect,
approval of plans, obtaining waivers of liens, and the receipt of requisitions,
title endorsements, affidavits and opinions in form and substance satisfactory
to the Mortgagee. If for any reason the Mortgaged Premises are not promptly so
repaired, restored and replaced (or if there shall be any of such Net Proceeds
or additional funds remaining after such repair, restoration and replacement
have been fully completed), following written notice to the Mortgagor the Net
Proceeds and
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additional funds, if any (or the balance thereof so remaining) are to be applied
against payment of the debt and obligations secured hereby or (at the option of
the Mortgagee) held as further security for such debt and obligations. If any of
the Readvancement Conditions shall not have been satisfied at any time when any
Net Proceeds remain in the control of the Mortgagee, the Mortgagee may, in its
sole discretion, after written notice to the Mortgagee, either apply the Net
Proceeds and additional funds, if any, within its control to the outstanding
debt and obligations secured hereby and/or hold same as further security for
such debt and obligations and/or use any or all of such Net Proceeds and
additional funds, if any, for the repair, restoration or replacement of the
Mortgaged Premises. The Mortgagor hereby grants to the Mortgagee full power and
authority, as attorney-in-fact irrevocable of the Mortgagor, to act after the
occurrence of an Event of Default in order to cancel or transfer the insurance
described in this Section 2, to collect and endorse any checks issued in the
name of the Mortgagor and to retain any premium or proceeds and to apply the
same to the debt secured hereby. Upon default by the Mortgagor hereunder and
exercise by the Mortgagee of any of its rights or remedies hereunder, each such
insurance policy, including the right to unearned premiums, shall become
property of the Mortgagee.
3. No building or other property now or hereafter covered by the lien
of this Mortgage shall be removed, demolished or materially altered or enlarged,
nor shall any new building be constructed without the prior written consent of
the Mortgagee (such consent not to be unreasonably withheld as to alterations or
enlargements), except that the Mortgagor shall have the right, without such
consent, to remove and dispose of, free from the lien of this Mortgage, such
Building Equipment as from time to time may become worn out or obsolete,
provided that simultaneously with or prior to such removal such Building
Equipment shall be replaced, to the extent needed for the operation of the
improvements on the Mortgaged Premises, with other Building Equipment, and the
replacement Building Equipment will be subject to the lien of this Mortgage.
4. In the event of any default in the performance of any of the
Mortgagor's covenants or agreements herein, whether or not an Event of Default
shall have occurred, the Mortgagee may, at the option of the Mortgagee, upon
such prior notice to the Mortgagor as is reasonable under the circumstances,
perform the same, and the Mortgagee may also take all such actions as it deems
desirable to prevent or cure any situation or circumstance which might, with the
passage of time or giving of notice or both, become an Event of Default. The
costs of any and all performance and actions taken under this Section 4 shall be
paid by the Mortgagor to the Mortgagee on demand, with interest at a rate per
annum equal to 4% plus the Prime Rate (hereinafter defined), as from time to
time in effect, such interest to accrue from the date such cost is incurred by
the Mortgagee through the date of payment by the Mortgagor, and all such costs
and such interest shall be secured by this Mortgage. As used herein, "Prime
Rate" shall mean that variable rate of interest per annum designated by Fleet
National Bank from time to time as its prime rate, it being understood that such
rate is merely a reference rate and does not necessarily represent the lowest or
best rate being charged to any customer.
5. The Mortgagor will pay, not later than the date when due without
interest or penalty, all taxes, excises, assessments, water rates, sewer rents
and other charges and any lien now or hereafter assessed or levied against the
Mortgaged Premises or any part thereof, or with
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respect to or relating in any way to the Mortgagor's interest therein or use and
occupancy thereof, or the debt, obligations or performance secured by this
Mortgage; provided that the Mortgagor shall not be required to pay any such tax,
excise, assessment, water rate, sewer rent or other charge or lien which is
being contested in good faith and by proper proceedings which serve as a matter
of law to stay the enforcement of any remedy of the taxing authority or claimant
and as to which the Mortgagor shall have set aside on its books adequate
reserves. The Mortgagor shall pay in a timely manner all of the costs and
expenses of operation, maintenance and upkeep of the Mortgaged Premises,
including all charges for electricity, water, gas, sewer rents and charges,
telephone, heat, air conditioning, if any, and all other utility services used
or consumed in or upon the Mortgaged Premises; provided that the Mortgagor shall
not be required to pay any such cost, expense or charge which is being contested
in good faith and by proper proceedings, as to which no lien has been asserted
and as to which the Mortgagor shall have set aside on its books adequate
reserves. Upon request of the Mortgagee, the Mortgagor will exhibit to the
Mortgagee receipts for the payment of all items specified in this Section on or
prior to the date when payment of same shall be required hereunder.
6. The Mortgagor upon request shall certify, by a writing duly
acknowledged, to the Mortgagee or to any proposed assignee of this Mortgage, the
amount of principal and interest then owing with respect to each Mortgage Note
and whether any offsets or defenses exist against any of the obligations secured
or purported to be secured hereby.
7. The Mortgagor warrants the title to the Mortgaged Premises, subject
only to the exceptions (if any) contained in Schedule B of the lender's title
policy delivered to the Mortgagee and accepted by the Mortgagee in connection
with this Mortgage.
8. In case of any sale under this Mortgage, by virtue of judicial
proceedings or otherwise, the Mortgaged Premises may be sold in one parcel and
as an entirety or in such parcels, manner or order as the Mortgagee in its sole
discretion may elect. To the extent that any of the Mortgaged Premises shall be
deemed collateral subject to Article 9 of the Massachusetts Uniform Commercial
Code (the "UCC"), this Mortgage shall also be deemed the grant of a security
interest in such collateral, which may be foreclosed in accordance with
applicable law.
This instrument is a security agreement filed as a financing statement
in order to perfect a fixture filing pursuant to the UCC. The secured party is
the Mortgagee, having an address as set forth in the first paragraph of this
Mortgage and the debtor is the Mortgagor, having an address at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The principal place of business and chief executive
offices of the Mortgagor are (and at all times while this Mortgage is in effect
will remain) located at said address. As to any of the Mortgaged Premises which
may now or hereafter constitute fixtures, the real estate concerned is that
described in Exhibit A hereto. The Mortgagor is the record owner of such real
estate.
9. In the event of the passage after the date of this Mortgage of any
law of The Commonwealth of Massachusetts deducting from the value of real
property for the purposes of taxation any lien thereon or changing in any way
the laws for the taxation of mortgages or debts secured by a mortgage for state
or local purposes or the manner of the collection of any such
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taxes, and imposing a tax, either directly or indirectly, on this Mortgage or
any of the obligations secured hereby, the Mortgagee shall have the right to
declare an Event of Default to exist under this Mortgage as of a date to be
specified by not less than 90 days' written notice to be given to the Mortgagor
by the Mortgagee; provided, however, that such declaration shall be ineffective
if the Mortgagor is permitted by law to pay the whole of such tax in addition to
all other payments required hereunder and if the Mortgagor, prior to such
specified date, does pay such tax and agrees to pay any such tax when thereafter
levied or assessed against the Mortgaged Premises, and such agreement shall
constitute a modification of this Mortgage. If at any time any law or court
decree prohibits the performance of any obligation undertaken in this Mortgage
by the Mortgagor, or provides that any amount to be paid hereunder by the
Mortgagor (other than under Section 1 of this Mortgage) must be credited against
the Mortgagor's obligations under any Mortgage Note, the Mortgagee shall have
the right, upon not less than 90 days' prior written notice to the Mortgagor, to
declare an Event of Default to exist under this Mortgage.
10. If the Mortgagee shall incur or expend any sums, including
reasonable attorneys' fees, whether in connection with any action or proceeding
or not, to sustain the lien of this Mortgage or its priority, or to protect or
enforce any of its rights hereunder, or to recover any indebtedness hereby
secured, or for any title examination or title insurance policy relating to the
title to the Mortgaged Premises, all such sums shall on notice and demand be
paid by the Mortgagor, together with interest thereon at a rate equal to 4% plus
the Prime Rate, as from time to time in effect, from the date the Mortgagee
notifies the Mortgagor of such costs through the date of payment by the
Mortgagor, and all such sums and such interest shall be a lien on the Mortgaged
Premises prior to any right or title to, interest in, or claim upon, the
Mortgaged Premises subordinate to the lien of this Mortgage, and shall be deemed
to be secured by this Mortgage.
11. The Mortgagor will maintain the Mortgaged Premises and the Building
Equipment in good and serviceable condition and in at least as good condition
and repair as same were on the date hereof or in such better condition as same
may thereafter be put (ordinary wear and tear excepted but damage from casualty
expressly not excepted), and will not commit or suffer any waste of the
Mortgaged Premises. The Mortgagor will comply with and cause to be complied with
in all material respects all subdivision, building, zoning and land use,
environmental protection, sanitary and safety laws, rules and regulations
applicable to the Mortgaged Premises, as well as all laws, rules, regulations
and other requirements of any governmental authority affecting the Mortgaged
Premises or the use thereof and the requirements of any fire insurance rating
association or similar body having jurisdiction. In the event of any damage or
destruction to the Mortgaged Premises or any portion thereof, by casualty or
other cause, including, without limitation, as the result of any proceeding of
the character referred to in Section 13, the Mortgagor shall proceed forthwith
to repair, restore and replace the Mortgaged Premises to substantially its
condition immediately prior to such event or to a condition of at least
equivalent value (and in any event to such condition and within such time period
as shall be required in order to avoid any default under any leases, agreements
or other restrictions affecting the Mortgaged Premises), regardless of the
availability or sufficiency of insurance proceeds. Without the prior written
consent of the Mortgagee (such consent not to be unreasonably withheld so long
as neither the value of the Mortgaged Premises nor the Mortgagee's security
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therein will be materially impaired), the Mortgagor will not initiate, join in
or consent to any change in any private restrictive covenant, zoning ordinance
or other public or private restrictions limiting or defining the uses which may
be made of the Mortgaged Premises or any part thereof.
12. This Mortgage shall secure, INTER ALIA, the payment of the Mortgage
Notes, including any and all advances made by the Mortgagee thereunder, and any
and all additional indebtedness of the Mortgagor to the Mortgagee, incurred or
becoming payable under the provisions hereof or otherwise, and whether as future
advancements or otherwise, together with any renewals or extensions of any
Mortgage Note.
13. Notwithstanding any taking by eminent domain, alteration of the
grade of any street or other injury to or decrease in value of the Mortgaged
Premises by any public or quasi-public authority or corporation, the Mortgagor
shall continue to pay interest on the entire principal sum secured until the
award or payment for any such taking, injury or decrease in value shall have
been actually received by the Mortgagee and applied to the debt secured hereby
and any reduction in the principal sum resulting from the application by the
Mortgagee of such award or payment as hereinafter set forth shall be deemed to
take effect only on the date of such receipt. In the event of any such taking,
injury or decrease in value, the parties shall cooperate as in Section 2 in
order to recover any applicable proceeds. Such proceeds shall be paid to the
Mortgagee. The Mortgagee shall make appropriate deductions from such proceeds,
if any, as are actually received by it as in the case of insurance proceeds and
shall give notice to the Mortgagor of such deductions and of the amount of the
net proceeds remaining and actually held by the Mortgagee (the "Eminent Domain
Net Proceeds"). Following any such taking, injury or decrease in value, the
Mortgagor shall proceed forthwith to repair, restore and replace the Mortgaged
Premises to as nearly as possible its condition immediately prior to such event
or to a condition of at least equivalent value (and in any event to such
condition and within such time period as shall be required in order to avoid any
default under any leases, agreements or other restrictions affecting the
Mortgaged Premises), regardless of whether or not the Eminent Domain Net
Proceeds resulting from such taking, injury or decrease in value shall be
available or sufficient to pay the cost thereof.
If the Mortgagor desires to use any or all of the Eminent Domain Net
Proceeds for repair, restoration or replacement of the Mortgaged Premises, it
shall request same from the Mortgagee within 20 days after receipt of the
aforesaid notice of the amount of the Eminent Domain Net Proceeds. Provided that
all of the Readvancement Conditions (as defined in Section 2) shall have been
satisfied as at the time of each release of all or any portion of the Eminent
Domain Net Proceeds, the Mortgagee, subject to the other requirements described
below, will permit the use of the Eminent Domain Net Proceeds to the extent
required for such repair, restoration and/or replacement. Any disbursement of
such Eminent Domain Net Proceeds and additional funds, if any, deposited with
the Mortgagee will be made subject to the reasonable requirements of the
Mortgagee, including, without limitation, requirements as to certification by an
architect, approval of plans, obtaining waivers of liens, and the receipt of
requisitions, title endorsements, affidavits and opinions in form and substance
satisfactory to the Mortgagee. If for any reason the Mortgaged Premises are not
promptly so repaired, restored and replaced (or if there shall be any of such
Eminent Domain Net Proceeds or additional funds remaining after such repair,
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restoration and replacement have been fully completed), the Eminent Domain Net
Proceeds and additional funds, if any (or the balance thereof so remaining) are
to be applied against payment of the debt and obligations secured hereby or (at
the option of the Mortgagee) held as further security for such debt and
obligations. If any of the Readvancement Conditions shall not have been
satisfied at any time when any Eminent Domain Net Proceeds remain in the control
of the Mortgagee, the Mortgagee may, in its sole discretion, either apply the
Eminent Domain Net Proceeds and additional funds, if any, within its control to
the outstanding debt and obligations secured hereby and/or hold same as further
security for such debt and obligations and/or use any or all of such Eminent
Domain Net Proceeds and additional funds, if any, for the repair, replacement,
restoration or reconstruction of the Mortgaged Premises. If, prior to the
receipt by the Mortgagee of any award or payment as hereinabove in this Section
13 provided, the Mortgaged Premises shall have been sold on foreclosure of this
Mortgage, the Mortgagee shall have the right to receive said award or payment to
the extent of any deficiency found to be due upon such sale, with interest
thereon at a rate equal to 4% plus the Prime Rate, as from time to time in
effect, whether or not a deficiency judgment on this Mortgage shall have been
sought or recovered or denied, and of the reasonable counsel fees, costs and
disbursements incurred by the Mortgagee in connection with the collection of
such award or payment.
14. The Mortgagee and any persons authorized by the Mortgagee shall
have the right, upon reasonable prior notice, to enter the Mortgaged Premises at
all reasonable times to inspect same and/or to exercise any of Mortgagee's
rights under this Mortgage.
15. Any rents, income and profits arising from or relating to the
Mortgaged Premises or any of same are hereby assigned to the Mortgagee as
further security for the debt and obligations now or from time to time secured
hereby. Except as expressly provided in the immediately preceding sentence, the
Mortgagor will not assign the whole or any part of the rents, income or profits
arising from or relating to the Mortgaged Premises, and any purported assignment
thereof shall be null and void. Further, upon demand, the Mortgagor will
transfer and assign to the Mortgagee, in form and substance satisfactory to the
Mortgagee, the lessor's interest in any lease now or hereafter affecting the
whole or any part of the Mortgaged Premises. The Mortgagor shall not, without
the prior written consent of the Mortgagee, sell, convey, alienate, mortgage,
transfer or suffer the transfer (whether voluntary or involuntary) of, or the
imposition of any lien or encumbrance (other than Permitted Encumbrances) with
respect to, legal title to or any beneficial interest in the Mortgaged Premises
or any portion thereof, and will not without the prior written consent of the
Mortgagee (which consent shall not be unreasonably withheld with respect to any
leases, licenses or occupancy arrangements provided that all of same involve, in
the aggregate, less than one-third (1/3rd) of the rentable area of the building
on the Mortgaged Premises) lease, license or permit any other person (other than
the Mortgagor's employees and business invitees) to use or occupy the whole or
any part of the Mortgaged Premises, but no such consent by the Mortgagee shall
in any event be deemed a waiver or release of any of the provisions of this
Section nor a consent to any such sale, conveyance, alienation, mortgage,
transfer, leasing, licensing or permission to use or occupy any of the Mortgaged
Premises on any future occasion, and no such consent nor any such sale,
alienation, mortgage, conveyance, transfer, leasing, licensing or permission
shall release or discharge the Mortgagor from any obligations or liabilities
hereunder, all of which shall continue to be direct and primary
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in any event. As used herein, "Permitted Encumbrances" means (i) the lien in
favor of the Mortgagee created by the Security Agreement (Equipment) dated as of
March 18, 1999, as amended (as so amended, the "Security Agreement") given by
the Mortgagor to Old FNB, the Mortgagee having succeeded by merger to the
interests of Old FNB thereunder, and (ii) any other liens and encumbrances
expressly permitted under Section 4.2 of the Loan Agreement.
16. The Mortgagee shall have the right from time to time to enforce any
legal or equitable remedy against the Mortgagor and to ▇▇▇ for any sums, whether
interest, principal or any installment thereof, taxes, or any other sums
required to be paid under the terms of this Mortgage, as the same become due,
without regard to whether or not the principal sum secured by this Mortgage
shall be due and without prejudice to the right of the Mortgagee thereafter to
enforce any appropriate remedy against the Mortgagor, including an action of
foreclosure, or any other action for a default or defaults by the Mortgagor
existing at the time such earlier action was commenced.
17. An Event of Default shall be deemed to exist hereunder if one or
more of the following events shall have occurred:
(a) The Mortgagor shall fail to make any payment required under any
Mortgage Note, the Loan Agreement and/or this Mortgage on the date when due and
such failure to pay shall continue uncured for 5 days after the relevant due
date; or
(b) Any representation or warranty made herein, in the Loan Agreement,
in the Security Agreement or in any report, certificate, financial statement or
other instrument now or hereafter furnished to the Mortgagee by or on behalf of
the Mortgagor shall prove to have been false or misleading in any material
respect on the date when made; or
(c) The Mortgagor shall fail to observe or perform, or there shall
occur a breach of, any of the covenants, conditions or obligations set forth in
Sections 2, 5 (first sentence only) and/or 15 of this Mortgage; or
(d) The Mortgagor shall fail to observe or perform, or there shall
occur a breach of, any covenant, condition or obligation contained in this
Mortgage other than as described in clauses (a), (b) or (c) above and such
failure or breach is not remedied within 30 days after written notice to the
Mortgagor; or
(e) Any "Event of Default" (as defined in the Loan Agreement) shall
occur under the Loan Agreement, or any failure, default or Event of Default
shall exist, and shall continue beyond the expiration of any applicable notice
and/or grace period, under any note, loan agreement, contract, understanding or
other agreement now existing or hereafter arising to which the Mortgagor solely,
jointly or severally, is a party and which is made with or for the benefit of
the Mortgagee and/or any affiliate of the Mortgagee, in any capacity; or
(f) The Mortgagor shall (except as hereinabove expressly provided or
except as the Mortgagee may otherwise expressly approve in writing) lease, sell,
convey, alienate, mortgage,
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transfer, or suffer the transfer (whether voluntary or involuntary) of, or
imposition of any lien or encumbrance (it being agreed that the Mortgagee shall
not unreasonably withhold its consent with respect to any easements that the
Mortgagor determines to be reasonably necessary in connection with the conduct
of its business or the construction of additional facilities on the Mortgaged
Premises; provided that in any event neither the value of the Mortgaged Premises
nor the Mortgagee's security therein will be materially adversely affected) with
respect to, legal title to or any beneficial interest in the Mortgaged Premises
or any portion thereof; or
(g) At any time this Mortgage shall not constitute a good and valid,
fully perfected first lien on all of the Mortgaged Premises; or
(h) The Mortgagee shall have declared an Event of Default to exist
under Section 9 of this Mortgage and such declaration shall not have become
ineffective due to the Mortgagor's payment and agreement to pay as provided in
said Section 9 or the Mortgagee shall have declared an Event of Default to exist
pursuant to Section 25.
18. Upon the occurrence of any Event of Default hereunder, the
Mortgagee may exercise any or all of the following remedies, in addition and
without prejudice to, and without limiting or otherwise impairing, any other
rights and remedies provided by law or this Mortgage or any other agreement
between the Mortgagor and the Mortgagee (including, without limitation, rights
and remedies under the Loan Agreement and/or the Security Agreement):
(a) The Mortgagee may by written notice to the Mortgagor declare
immediately due and payable the principal amount of each Mortgage Note and all
interest accrued thereon or thereafter to accrue to the date of payment, as well
as all other amounts secured hereby, whereupon such principal, interest and
other amounts shall become immediately due and payable without any further
action or notice.
(b) The Mortgagee may by written notice to the Mortgagor declare an
Event of Default to exist under the Loan Agreement, whereupon the Mortgagee may
exercise any or all of the rights contained therein.
(c) The Mortgagee may at any time enter the Mortgaged Premises without
being liable for any prosecution or damages therefor, may take complete and
peaceful possession of the Mortgaged Premises with or without process of law,
may receive the rents, if any, therefor, including those past due as well as
those accruing thereafter and may remove all persons therefrom; and the
Mortgagor covenants that in any such event it will peacefully and quietly yield
up and surrender the Mortgaged Premises. Entry under this Section shall not
operate to release the Mortgagor from any sums to be paid or covenants or
agreements to be performed under this Mortgage. The Mortgagee may make such
repairs or alterations to the Mortgaged Premises as it may deem necessary or
desirable. The Mortgagor shall be liable to the Mortgagee for the cost of such
repairs or alterations and all expenses of sale shall be added to the debt
secured by this Mortgage. Further, upon entry as aforesaid, the Mortgagee may
take over and assume the management, operation and maintenance of the Mortgaged
Premises and expend such sums out of the rents or other income of the Mortgaged
Premises as the Mortgagee in its sole
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discretion may deem advisable, all to the maximum extent which the Mortgagor
might have done had no such entry occurred, including, without limitation, the
right to enter into new leases, to cancel or surrender existing leases, to alter
or amend the terms of existing leases, to renew existing leases, or to make
concessions to or deal in any way with tenants or occupants of all or any of the
Mortgaged Premises. Upon such entry, the Mortgagor will pay over to the
Mortgagee all security deposits and will cooperate in all reasonable ways in the
Mortgagee's collection of rents, including, without limitation, execution of a
written notice to each lessee or occupant directing that rent be paid directly
to the Mortgagee. The Mortgagee shall not be accountable for more moneys than it
actually receives from the Mortgaged Premises; nor shall it be liable for
failure to collect rents or enforce other obligations. The Mortgagee reserves
within its own discretion, the right to determine the method of collection and
the extent to which enforcement of collection of delinquent rents or the
eviction of delinquent tenants shall be prosecuted.
(d) The Mortgagee shall have the STATUTORY POWER OF SALE and, with or
without an entry as aforesaid, may sell the Mortgaged Premises or any part or
parts of the same, either as a whole or in parts or parcels, together with any
improvements that may be thereon, by public auction in accordance with the
statutes of The Commonwealth of Massachusetts relating to the foreclosure of a
mortgage by the exercise of a Power of Sale, and may convey the same by proper
deed or deeds or ▇▇▇▇ or bills of sale to the purchaser or purchasers absolutely
and in fee simple; and such sale shall forever bar the Mortgagor and all persons
claiming under it from all right and interest in the Mortgaged Premises, whether
at law or in equity. The Mortgagor covenants with the Mortgagee that the
Mortgagor, in case a sale shall be made under the power of sale, will upon
request execute, acknowledge and deliver to the purchaser or purchasers a deed
or deeds of release confirming such sale, and the Mortgagee is irrevocably
appointed the Mortgagor's attorney to execute and deliver to said purchaser such
a deed or deeds and a full transfer of all policies of insurance on the
Mortgaged Premises at the time of such sale. In the event of foreclosure sale,
the Mortgagee shall be entitled to retain one (1%) percent of the purchase price
in addition to the costs, charges and expenses allowed under the Statutory Power
of Sale and in addition to all other sums which the Mortgagee may otherwise be
entitled to retain. In the event that the Mortgagee in the exercise of the power
of sale herein given elects to sell in parcels, such sales may be held from time
to time and the power of sale shall not be exhausted until all of the Mortgaged
Premises shall have been sold.
(e) The Mortgagee may exercise all of the rights and remedies of a
secured party under the UCC with respect to that portion of the Mortgaged
Premises which is or may be treated as collateral under the UCC, including,
without limitation, the Building Equipment, and the Mortgagee may deal with same
as collateral under the UCC or as real property as provided in this Section, or
in part one and in part the other, to the extent permitted by law. Such rights
shall include the following:
(i) The Mortgagee may enter upon the Mortgaged Premises and
may take possession of such collateral or render such collateral unusable by
process of law or peaceably without process of law. The Mortgagor shall
peacefully and quietly yield up and surrender such collateral and shall upon
request from the Mortgagee assemble it and make it available to the
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Mortgagee at a place designated by the Mortgagee which is reasonably convenient
to the Mortgagor and the Mortgagee.
(ii) The Mortgagee may dispose of all or any part of such
collateral on the Mortgagor's premises or elsewhere without any liability to the
Mortgagor for any damage whatsoever; provided, however, that every aspect of any
such disposition by the Mortgagee, including the method, manner, time, place and
terms, must be commercially reasonable. Notice given to the Mortgagor at least 7
days before an event shall constitute reasonable notification of such event
under UCC ss.9-504(3). Any proceeds of any disposition of any of such collateral
may be applied by the Mortgagee to the payment of expenses in connection with
the disposition of the collateral, including reasonable attorneys' fees, and
then to the other obligations secured hereby.
(f) The Mortgagee, with or without entry under this Section, may
collect and receive all rents accruing under any lease of the Mortgaged Premises
or any portion thereof, including amounts past due, as well as those accruing
thereafter. In the event of a foreclosure sale, neither the Mortgagee nor any
person claiming under it shall have any obligation to account to the Mortgagor
for any rents, issues or profits accruing from the Mortgaged Premises or any
part thereof after such sale.
(g) The Mortgagee may have a receiver appointed to enter and take
possession of the Mortgaged Premises, collect the rents, issues and profits
therefrom, and apply the same as the court may direct, and, subject as
aforesaid, the Mortgagee shall be entitled to the appointment of such a receiver
as a matter of right, without consideration of the value of the Mortgaged
Premises as security for the amounts due hereunder, or the availability of other
collateral, or the solvency of any person or other entity liable for the payment
of such amounts. Such receiver may also take possession of, and for these
purposes use, any and all Building Equipment and other personal property of the
Mortgagor contained in or on the Mortgaged Premises. The expense (including
receiver's fees, counsel fees, costs and agents' compensation) incurred pursuant
to the powers herein contained shall be secured hereby. The right to enter and
take possession of the Mortgaged Premises, to manage and operate the same, and
to collect the rents, issues and profits thereof, whether by a receiver or
otherwise, shall be cumulative with any other right or remedy hereunder or
afforded by law, and may be exercised concurrently therewith or independently
thereof. The Mortgagee or any such receiver shall be liable to account only for
such rents, issues and profits actually received by it, less the Mortgagee's or
such receiver's costs and expenses, as aforesaid, and neither the Mortgagee nor
such receiver shall be under any obligation to collect any such rents, issues
and profits, nor will the Mortgagee or such receiver be liable to the Mortgagor
for any other act or omission upon such entry and taking possession of the
Mortgaged Premises.
19. Any failure by the Mortgagee to insist upon the strict performance
by the Mortgagor of any of the terms and provisions hereof shall not be deemed
to be a waiver of any of the terms and provisions hereof, and the Mortgagee,
notwithstanding any such failure, shall have the right thereafter to insist upon
the strict performance by the Mortgagor of any and all of the terms and
provisions of this Mortgage to be performed by the Mortgagor. Neither the
Mortgagor nor any other person now or hereafter obligated for the payment of the
whole or any part of the
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sums now or hereafter secured by this Mortgage shall be relieved of such
obligation by reason of the failure of the Mortgagee to comply with any request
of the Mortgagor or by reason of the failure of the Mortgagee to take action to
foreclose this Mortgage or otherwise enforce any of the provisions of this
Mortgage or of any obligations secured by this Mortgage, or by reason of the
release, regardless of consideration, of the whole or any part of the security
held for the indebtedness secured by this Mortgage, or by reason of any
agreement or stipulation between any subsequent owner or owners of the Mortgaged
Premises and the Mortgagee extending the time of payment or modifying the terms
of any Mortgage Note or the terms of this Mortgage without first having obtained
the consent of the Mortgagor or such other person obligated as to the sums
secured hereby, and, in the latter event, the Mortgagor and all such other
persons shall continue liable to make such payments according to the terms of
any such agreement of extension or modification unless expressly released and
discharged in writing by the Mortgagee. Regardless of consideration, and without
the necessity for any notice to or consent by the holder of any subordinate lien
on the Mortgaged Premises, the Mortgagee may release the obligation of anyone at
any time liable for any of the indebtedness secured by this Mortgage or any part
of the security held for such indebtedness and may extend the time of payment or
otherwise modify the terms of any Mortgage Note and/or this Mortgage without
impairing or affecting the lien of this Mortgage or the priority of such lien,
as security for the payment of such indebtedness, as it may be so extended or
modified, over any subordinate lien. The Mortgagee may resort for the payment of
the indebtedness secured hereby to any other security therefor held by the
Mortgagee in such order and manner as the Mortgagee may elect.
20. The Mortgagor, upon request from the Mortgagee, will pay to the
Mortgagee, on the first day of each and every month thereafter ensuing, in
addition to any other payments required hereunder and/or the Mortgage Notes, an
amount equal to 1/12th of all insurance premiums required hereunder and all
taxes and assessments on or against the Mortgaged Premises to become payable
during the ensuing 12 months, as estimated from time to time by the Mortgagee
(but with the first such payment to be in such amount as shall, with the
succeeding payments, be sufficient to pay all such amounts at least 30 days
before they become due and payable), such sums to be held by the Mortgagee (but
without any obligation to pay interest thereon, except to the extent required by
law) and applied to the payment of such premiums, taxes and assessments. If the
sums collected under this Section are insufficient to pay the amounts of such
premiums, taxes and assessments as they become due and payable, then the
Mortgagor shall pay to the Mortgagee promptly upon demand any amount necessary
to make up the deficiency on or before the date when such amounts shall be due.
Any amount collected hereunder from time to time, until the same shall be
applied as above provided, shall constitute additional collateral security for
the indebtedness secured by this Mortgage; and in the event of any Event of
Default, any part or all of such amounts may be applied by the Mortgagee, at its
option, to any part of the indebtedness secured by this Mortgage. The Mortgagee
agrees that it will not deliver a notice requiring escrows under this Section 20
unless an Event of Default has occurred.
21. If the Mortgagor consists of more than one party, such Mortgagors
shall be jointly and severally liable under any and all obligations, covenants
and agreements of the Mortgagor contained herein.
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22. The rights of the Mortgagee arising under the clauses and covenants
contained in this Mortgage shall be separate, distinct and cumulative and none
of them shall be in exclusion of the others; and no act of the Mortgagee shall
be construed as an election to proceed under any one provision herein to the
exclusion of any other provision, anything herein or otherwise to the contrary
notwithstanding.
23. Wherever used in this Mortgage, unless the context clearly
indicates a contrary intent or unless otherwise specifically provided herein,
the word "Mortgagor" shall mean "Mortgagor and/or any subsequent owner or owners
of the Mortgaged Premises, jointly and severally", the word "Mortgagee" shall
mean "Mortgagee, any corporate predecessor of or successor to the Mortgagee or
any subsequent holder or holders of this Mortgage", the word "person" shall mean
"an individual, corporation, partnership, limited liability company or
unincorporated association", the words "Mortgaged Premises" shall include the
real estate hereinbefore described, together with all Building Equipment,
condemnation awards and any other rights or property interest at any time made
subject to the lien of this Mortgage by the terms hereof, pronouns of any gender
shall include the other genders, and either the singular or plural shall include
the other.
24. (a) In any circumstance in which the Mortgagee is requested to give
its consent for any purpose hereunder, the Mortgagor agrees that such consent
may be conditioned upon the payment by the Mortgagor of all commercially
reasonable costs and expenses of the Mortgagee (including, without limitation,
reasonable attorneys' fees and disbursements) incurred in connection therewith.
(b) The Mortgagor agrees that, at the request of the Mortgagee, the
Mortgagor will execute and deliver all such financing statements, continuation
statements and other instruments in form and substance satisfactory to the
Mortgagee, and take any and all other action which the Mortgagee may at any time
or from time to time deem necessary or desirable to assure it of all rights and
remedies intended to be conferred hereby and/or to carry out the purposes of
this Mortgage.
(c) The Mortgagor shall be obligated to pay on demand all reasonable
fees and expenses of counsel to the Mortgagee relating to the preparation,
execution and delivery of this Mortgage, any Mortgage Note and any other
documents delivered in connection herewith or the consummation of the
transactions contemplated hereby, as well as all costs, fees and expenses of the
Mortgagee (including, without limitation, reasonable counsel fees) relating to
the administration, interpretation, enforcement or attempted enforcement of all
or any of the foregoing instruments, whether or not suit is instituted.
(d) This Mortgage sets forth the entire agreement of the parties, and
no custom, act, forbearance or words or silence at any time, gratuitous or
otherwise, shall impose any additional obligation or liability upon any party or
waive or release any party from any default or the performance or fulfillment of
any obligation or liability or operate as against any party as a supplement,
alteration, amendment or change of any term or provision set forth herein,
including
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this Section, unless set forth in a written instrument duly executed by such
party expressly stating that it is intended to impose such an additional
obligation or liability or to constitute such a waiver or release, or that it is
intended to operate as such a supplement, alteration, amendment or change. No
waiver or release in any one instance shall operate as a waiver or release or
agreement to give such waiver or release thereafter or in any other instance.
(e) The provisions of this Mortgage are not in derogation or limitation
of any obligations, liabilities or duties of the Mortgagor under the Loan
Agreement, the Security Agreement and/or under any other agreement made by the
Mortgagor with or for the benefit of the Mortgagee and/or any corporate
predecessor of the Mortgagee. No inconsistency in default provisions between
this Mortgage and the Loan Agreement, the Security Agreement or any such other
agreement will be deemed to create any additional grace period or otherwise
derogate from the express terms of each such default provision. No covenant,
agreement or obligation of the Mortgagor contained herein, nor any right or
remedy of the Mortgagee contained herein, shall in any respect be limited by or
be deemed in limitation of any inconsistent or additional provisions contained
in the Loan Agreement, the Security Agreement or any such other agreement.
25. As used herein, the following terms shall have the following
respective meanings:
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Section 9601 ET SEQ., as amended by the
Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100
Stat. 1613.
"Environmental Event" means (i) the generation, storage, disposal,
removal, transportation or treatment of any Hazardous Substances on any of the
Mortgaged Premises (or on any of the real property adjoining or in the vicinity
of such Mortgaged Premises, if through soil or groundwater migration, such
Hazardous Substances could have come to be located at the Mortgaged Premises) or
on any other property owned, occupied or operated by the Mortgagor or any
subsidiary of the Mortgagor; (ii) the receipt by the Mortgagor or any subsidiary
of the Mortgagor of any notice or claim of any violation of any Environmental
Law or of any action based upon nuisance, negligence or other tort theory
alleging liability on the basis of improper generation, storage, disposal,
removal, transportation or treatment of Hazardous Substances on any of the
Mortgaged Premises or on any other affected property; or (iii) the presence or
release or threat of release of any Hazardous Substances at or upon any of the
Mortgaged Premises or other property of the Mortgagor or any subsidiary of the
Mortgagor that has resulted in contamination or deterioration of any portion of
such Mortgaged Premises or other affected property resulting in a level of
contamination greater than the levels permitted or established for the
Mortgagor's or such subsidiary's intended use of the Mortgaged Premises or other
such property by any governmental agency having jurisdiction over the Mortgagor
or any subsidiary of the Mortgagor, any of the Mortgaged Premises or any such
other property.
"Environmental Laws" means any and all federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or the release or threat
of release of any materials into the environment, including, without
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limitation, Mass. Gen. Laws, Chapter 21E ("Chapter 21E"), CERCLA and the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. ss.ss.6901-6987.
"Hazardous Substances" includes "oil" within the meaning of Chapter
21E, "hazardous material" within the meaning of Chapter 21E, "hazardous
substances" or "hazardous waste" as defined in CERCLA or in any Environmental
Laws, as well as asbestos and materials containing asbestos.
The Mortgagor represents and warrants that there has been no
Environmental Event in violation of applicable law, except as disclosed in the
Environmental Reports (as defined in a separate Environmental Compliance and
Indemnity Agreement of even date herewith given by the Mortgagor to the
Mortgagee). The Mortgagor covenants to comply strictly with (and to cause each
tenant or occupant of any of the Mortgaged Premises to comply strictly with) the
requirements of all Environmental Laws and to notify the Mortgagee promptly of
the occurrence of any Environmental Event in violation of applicable law. The
Mortgagor hereby covenants to protect, indemnify and hold the Mortgagee harmless
from and against all loss, liability, damage and expense, including attorneys'
fees, suffered or incurred by the Mortgagee under or on account of any
Environmental Laws and relating to the Mortgaged Premises or any portion
thereof, including, without limitation, the filing of a lien or claim for
recovery of costs against the Mortgaged Premises or the Mortgagor by or in favor
of The Commonwealth of Massachusetts; but excluding any loss, liability, damage
or expense resulting from a release of Hazardous Substances which (i) occurs
after foreclosure of this Mortgage or following and during the continuance of
entry by the Mortgagee as a mortgagee-in-possession and (ii) does not result in
any manner from actions taken or circumstances existing prior to such
foreclosure or entry.
In the event that the Mortgagor or any tenant or occupant of the
Mortgagor shall fail to comply strictly with the requirements of any
Environmental Laws and, in the reasonable opinion of the Mortgagee, the effect
of such failure (singly or together with all other then existing failures to
comply with any Environmental Laws) could have a material adverse effect on the
use, salability or value of the Mortgaged Premises, the Mortgagee may declare an
Event of Default to exist under this Mortgage, whereupon the whole sum of
principal of and interest on each Mortgage Note then remaining unpaid shall
become immediately due and payable, at the option of the Mortgagee. The
Mortgagee, at its election and in its sole discretion, may (but is not obligated
to) cure any failure on the part of the Mortgagor or any such tenant to comply
with any of the Environmental Laws and, without limitation, may take any the
following actions:
(a) arrange for the prevention and/or clean-up of any Hazardous
Substances in or on the Mortgaged Premises, and pay for such prevention and/or
clean-up costs and associated costs;
(b) pay, on behalf of the Mortgagor, any fines or penalties imposed on
the Mortgagor by any governmental agency or authority (federal, state or local)
in connection with such failure to comply with any of the Environmental Laws;
and
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(c) make any other payment or perform any other act which will prevent
or discharge a lien or claim by or in favor of The Commonwealth of Massachusetts
or any other federal, state or local governmental agency or authority from
attaching to or being asserted against the Mortgaged Premises.
The Mortgagee will give the Mortgagor not less than 10 days' prior
written notice before acting under any of clauses (a)-(c) above, except that the
Mortgagee may act after such shorter notice period as is reasonably practicable
or upon no notice at all in the case of emergency (as reasonably determined by
the Mortgagee), including, without limitation, imminent risk of damage to, or
forfeiture of, the Mortgaged Premises or any material portion thereof or
imminent threat of harm to any person in, on or in the vicinity of the real
estate constituting the Mortgaged Premises. Any partial exercise by the
Mortgagee of the remedies herein set forth, or any partial undertaking on the
part of the Mortgagee to cure the Mortgagor's failure to comply with any of the
Environmental Laws, shall not obligate the Mortgagee to complete the actions
taken or require the Mortgagee to expend further sums to cure the Mortgagor's
noncompliance; neither shall the exercise of any such remedies operate to place
upon the Mortgagee any responsibility for the operation, control, care,
management or repair of the Mortgaged Premises or make the Mortgagee the
"operator" of the Mortgaged Premises within the meaning of any Environmental
Laws or a so-called lender in possession. Any amount paid or costs incurred by
the Mortgagee as a result of the exercise by the Mortgagee of any of the rights
hereinabove set forth shall be paid by the Mortgagor to the Mortgagee on demand,
together with interest thereon at the rate equal to 4% plus the Prime Rate, as
from time to time in effect, such interest to accrue from the date such amount
was paid or cost incurred through the date of payment by the Mortgagor. All such
amounts and costs and the interest thereon, until paid, shall be added to and
become a part of the obligations secured hereby; and the Mortgagee, by making
any such payment or incurring any such costs, shall be subrogated to any rights
of the Mortgagor to seek reimbursement from any third parties, including,
without limitation, a predecessor-in-interest to the Mortgagor's title who may
be a "responsible party" under any Environmental Laws in connection with any
Environmental Event.
The provisions of this Section 25 shall survive payment of the Mortgage
Notes and the discharge of this Mortgage.
26. All notices hereunder shall be in writing and shall be deemed
sufficiently given if sent by registered or certified mail or delivered during
business hours as follows: (i) if to the Mortgagor, at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Financial Officer, (ii) if to
the Mortgagee, at Fleet National Bank, Technology & Communications Group, Mail
Stop: ▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Director, or in either case to such other address as the party
receiving such notice shall have previously designated in writing.
27. In the event that any provision of this Mortgage or the application
thereof to any person, property or circumstance shall be held to any extent to
be invalid or unenforceable, the remainder of this Mortgage, and the application
of such provision to persons, properties or circumstances other than those as to
which it has been held invalid or unenforceable, shall not be
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affected thereby, and each provision of this Mortgage shall be valid and
enforceable to the fullest extent permitted by law.
28. This Mortgage will be governed by and enforced in accordance with
the laws of The Commonwealth of Massachusetts.
This Mortgage is also upon the STATUTORY CONDITION, for any breach of
which, or for any breach of any other of the covenants, conditions, agreements
and obligations of the Mortgagor herein contained, or upon the occurrence of any
of the events specified as an Event of Default in this Mortgage or if the whole
of the principal sum of and the interest on any Mortgage Note shall become due,
the Mortgagee shall have the STATUTORY POWER OF SALE.
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IN WITNESS WHEREOF, this Mortgage has been duly executed, as an
instrument under seal, by the Mortgagor on the day and year first above written.
ARQULE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name:
Title:
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Commonwealth of Massachusetts)
County of ) ss.
On this ____ day of February, 2001, before me personally appeared
▇▇▇▇▇▇▇ ▇▇▇▇, to me personally known, who being by me duly sworn, did say that
he/she is the CEO of ArQule, Inc., and he/she acknowledged the foregoing
instrument on behalf of said corporation by authority of its board of directors;
and that the foregoing instrument is the free act and deed of said corporation.
/s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
NOTARIAL SEAL ----------------------
Notary Public
My commission expires: 4/2/04
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EXHIBIT A
LAND DESCRIPTION
A certain parcel of land with all the buildings and structures now or
hereafter standing or placed thereon situated at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ (sometimes
also known at 195 and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇), ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, and bounded and described as follows:
PARCEL 1:
A parcel of land situated near Presidential Way, Woburn, Middlesex County,
Massachusetts, shown as Lot 5B-1 on a plan entitled "Subdivision Plan of Land in
Woburn, Mass.," prepared for: National Development, dated January 16, 2001,
prepared by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Brustlin, Inc. recorded herewith.
PARCELS 2 AND 3:
Two contiguous parcels of Registered Land on Presidential Way (sometimes
referred to as Presidential Park and as Dundee Park Drive), Woburn, Middlesex
County, Massachusetts, shown as ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇, a
copy of which is filed with the Middlesex South Registry of Deeds with
Certificate of Title No. 212009.
Together with the right to use Presidential Way for all purposes for which
streets and ways are commonly used in the City of Woburn.
Together with the benefit of and subject to provisions of Easement and Agreement
dated December 7, 2000, by and between ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC and
MetroNorth Corporate Center LLC, filed as Document No. 1158395.
