LOAN AGREEMENT
Exhibit
10.7
This
LOAN
AGREEMENT entered into at Chicopee, Massachusetts, as of June
4, 2003,
between
Xxxxx X Xxxxxxx, an individual, with an address of 00
Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
(the
"Borrower") and CHICOPEE SAVINGS BANK, a Massachusetts Savings Bank with
an
address of 00 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000-0000 (the
"Bank").
FOR
VALUE RECEIVED, and in consideration of the granting by the Bank of financial
accommodations to or for the benefit of the Borrower, including without
limitation respecting the Obligations (as hereinafter defined), the Borrower
represents and agrees with the Bank, as of the date hereof and as of the
date of
each loan, credit and/or other financial accommodation, as follows:
1
THE LOAN
1.1 Loan.
Subject
to the terms and conditions of this Agreement, the Bank hereby agrees to
make a
loan to the Borrower in the original principal amount of $272,000.00
(the
"Loan"). The Loan shall be evidenced by that certain Note, of even date herewith
(the "Note") by Xxxxx X Xxxxxxx in favor of the Bank in the original principal
amount of $272,000.00.
This
Agreement, the Note, and any and all other documents, amendments or renewals
executed and delivered in connection with any of the foregoing are collectively
hereinafter referred to as the "Loan Documents."
1.2 Definitions.
The
following definitions shall apply:
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(a)
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"Code"
shall mean the Massachusetts Uniform Commercial Code, General Laws,
Chapter 106 as amended from time to
time.
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(b)
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"Obligation(s)
1
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shall mean, without limitation, all loans, advances, indebtedness,
notes,
liabilities and amounts, liquidated or unliquidated, owing by the
Borrower
to the Bank at any time, of each and every kind, nature and description,
whether arising under this Agreement or otherwise, and whether
secured or
unsecured, direct or indirect (that is, whether the same are due
directly
by the Borrower to the Bank; or are due indirectly by the Borrower
to the
Bank as endorser, guarantor or other surety, or as borrower of
obligations
due third persons which have been endorsed or assigned to the Bank,
or
otherwise), absolute or contingent, due or to become due, now existing
or
hereafter arising or contracted, including, without limitation,
payment
when due of all amounts outstanding respecting any of the Loan
Documents.
Said term shall also include all interest and other charges chargeable
to
the Borrower or due from the Borrower to the Bank from time to
time and
all costs and expenses referred to in this
Agreement.
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(c)
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"Person"
or "party" shall mean individuals, partnerships, corporations,
limited
liability companies and all other entities. All words and terms
used in
this Agreement other than those specifically defined herein shall
have the
meanings accorded to them in the
Code.
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1
2.
REPRESENTATIONS AND WARRANTIES
2.1 Records.
All
books and records of the Borrower's Business, including but not limited to
its
books of account, are accurate and up to date and will be so
maintained.
2.2 Title
to Properties: Absence of Liens.
Borrower has good and clear record and marketable title to all of its properties
and assets, and all of its properties and assets are free and clear of all
mortgages, liens, pledges, charges, encumbrances and setoffs, except (a)
the
mortgages, deeds of trust and security interests as set forth on Schedule
2.2,
if any, and (b) the leases of personal property as set forth on Schedule
2.2, if
any.
2.3 Places
of Business.
Borrower's chief executive office is correctly stated in the preamble to
this
Agreement, and Borrower shall, during the term of this Agreement, keep the
Bank
currently and accurately informed in writing of each of its other places
of
business, and shall not change the location of such chief executive office
or
open or close, move or change any existing or new place of business without
giving the Bank at least thirty (30) days prior written notice
thereof.
2.4 Valid
Obligations.
The
Loan Documents represent legal, valid and binding obligations of Borrower
and
are fully enforceable according to their terms, except as limited by laws
relating to the enforcement of creditors' rights.
2.5 Conflicts.
There
is no provision in Borrower's organizational or charter documents, if any,
or in
any indenture, contract or agreement to which Borrower is a party which
prohibits, limits or restricts the execution, delivery or performance of
the
Loan Documents.
2.6 Governmental
Approvals.
The
execution, delivery and performance of the Loan Documents does not require
any
approval of or filing with any governmental agency or authority.
2.7 Litigation.
There
are no actions, suits or proceedings pending or to the knowledge of Borrower
threatened against Borrower which might materially adversely affect the ability
of Borrower to conduct its business or to pay or perform the
Obligations.
2.8 Taxes.
Borrower has filed all Federal, state and other tax returns required to be
filed
(except for such returns for which current and valid extensions have been
filed), and all taxes, assessments and other governmental charges due from
the
Borrower have been fully paid. The Borrower has established on its books
reserves adequate for the payment of all Federal, state and other tax
liabilities (if any).
2.9 Use
of
Proceeds.
No
portion of any loan is to be used for (i) the purpose of purchasing or carrying
any "margin security" or "margin stock" as such terms are used in Regulations
U
and X of the Board of Governors of the Federal Reserve System, 12 C.F.R.
221 and
224 or (ii) primarily personal, family or household purposes.
3.
AFFIRMATIVE COVENANTS
3.1 Payments
and Performance.
Borrower will duly and punctually pay all Obligations becoming due to the
Bank
and will duly and punctually perform all Obligations on its part to be done
or
performed under this Agreement.
3.2 Books
and Records; Inspection.
Borrower will at all times keep proper books of account in which full, true
and
correct entries will be made of its transactions in accordance with generally
accepted accounting principles, consistently applied and which are, in the
opinion of a Certified Public Accountant acceptable to Bank, adequate to
determine fairly the financial condition and the results of operations of
Borrower. Borrower will at all reasonable times make its books and records
available in its offices for inspection and examination by the Bank and the
Bank's representatives and will permit inspection of all of its properties
by
the Bank and the Bank's representatives. Borrower will from time to time
furnish
the Bank with such information and statements as the Bank may request in
its
sole discretion with respect to the Obligations.
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3.3 Financial
Statements.
Borrower will furnish to Bank:
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(a)
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in
the event Borrower is operating a sole proprietorship doing business
under
a so-called "d/b/a":
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(i)
as
soon as available to Borrower, but in any event within 120 days after the
dose
of each fiscal year, a full and complete signed copy of financial statements,
which shall include a balance sheet of the Borrower, as at the end of such
year,
and statement of profit and loss of the Borrower reflecting the results of
its
operations during such year and shall be prepared by the Borrower and certified
by Borrower's chief financial officer as to correctness in accordance with
generally accepted accounting principles, consistently applied;
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(b)
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Borrower's
filed Federal and state tax returns for the prior year on or before
May 1
each such year or by such other date approved by the
Bank;
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(c)
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from
time to time, such financial data and information about Borrower
as Bank
may reasonably request including without limitation copies of any
rent
rolls and leases; and
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(d)
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any
financial data and information about any guarantors of the Obligations
as
Bank may reasonably request.
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3.4 Conduct
of Business.
The
Borrower will comply with all laws and regulations of the United States,
and of
any state or states thereof, and of any political subdivision thereof and
of any
governmental authority which may be applicable to it or to "its business;
provided that this covenant shall not apply to any tax, assessment or charge
which is being contested in good faith and with respect to which reserves
have
been established and are being maintained.
3.5 Contact
with Accountant.
The
Borrower hereby authorizes the Bank to directly contact and communicate with
any
accountant employed by Borrower in connection with the review and/or maintenance
of Borrower's books and records or preparation of any financial reports
delivered by or at the request of Borrower to Bank.
3.6 Operating
and Deposit Accounts.
The
Borrower shall maintain with the Bank its primary operating and deposit
accounts. At the option of the Bank, all loan payments and fees will
automatically be debited from the Borrower's primary operating account and
all
advances will automatically be credited to the Borrower's primary operating
account.
3.7 Taxes.
Borrower will promptly pay all real and personal property taxes, assessments
and
charges and alt franchise, income, unemployment, old age benefits, withholding,
sales and other taxes assessed against it or payable by it before delinquent;
provided that this covenant shall not apply to any tax assessment or charge
which is being contested in good faith and with respect to which reserves
have
been established and are being maintained.
3.8 Maintenance.
Borrower will keep and maintain its properties, If any, in good repair, working
order and condition. The Borrower will immediately notify the Bank of any
loss
or damage to or any occurrence which would adversely affect the value of
any
such property.
3.9 Insurance.
Borrower will maintain in force casualty insurance on any property of the
Borrower, if any, against risks customarily insured against by companies
engaged
in businesses similar to that of the Borrower containing such terms and written
by such companies as may be satisfactory to the Bank, such insurance to be
payable to the Bank as its interest may appear in the event of loss and to
name
the Bank as insured pursuant to a standard loss payee clause; no loss shall
be
adjusted thereunder without the Bank's approval; and all such policies shall
provide that they may not be canceled without first giving at least thirty
(30)
days' written notice of cancellation to the Bank. In the event that the Borrower
fails to provide evidence of such insurance, the Bank may. at is option,
secure
such insurance and charge the cost thereof to the Borrower. At the option
of the
Bank, all insurance proceeds received from any loss or damage to any property
shall be applied either to the replacement or repair thereof or as a payment
on
account of the Obligations. From and after the occurrence of an Event of
Default, the Bank is authorized to cancel any insurance maintained hereunder
and
apply any returned or unearned premiums, all of which are hereby assigned
to the
Bank, as a payment on account of the Obligations.
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3.10 Notification
of Default.
Within
five (5) days of becoming aware of the existence of any condition or event
which
constitutes an Event of Default, or any condition or event which would upon
notice or lapse of time, or both, constitute an Event of Default, Borrower
shall
give Bank written notice thereof specifying the nature and duration thereof
and
the action I or proposed to be taken with respect thereto.
3.11 Notification
of Material Litigation.
Borrower will promptly notify the Bank in writing of any litigation or of
any
investigative proceedings of a governmental agency or authority commenced
or
threatened against it which would or might be materially adverse to the
financial condition of Borrower or any guarantor of the
Obligations.
3.12 Pension
Plans.
With
respect to any pension or benefit plan maintained by Borrower, or to which
Borrower contributes ("Plan"), the benefits under which are guarantied, in
whole
or in part, by the Pension Benefit Guaranty Corporation created by the Employee
Retirement Income Security Act of 1974, P.L. 93- 406, or any governmental
authority succeeding to any or all of Tie functions of the Pension Benefit
Guaranty Corporation ("Pension Benefit Guaranty Corporation"), Borrower will
(a)
fund each Plan as required by the provisions of Section 412 of the Internal
Revenue Code of 1986, as amended; (b) cause each Plan to pay all benefits
when
due; (c) furnish Bank (i) promptly with a copy of any notice of each Plan's
termination sent to the Pension Benefit Guaranty Corporation and (ii) no
later
than the date of submission to the Department of Labor or to the Internal
Revenue Service, as the case may be, a copy of any request for waiver from
the
funding standards or extension of the amortization periods required by Section
412 of the Internal Revenue Code of 1986, as amended; and (d) subscribe to
any
contingent liability insurance provided by the Pension Benefit Guaranty
Corporation to protect against employer liability upon termination of a
guarantied pension plan, if available to Borrower.
3.13 Environmental.
As of
the date hereof neither the Borrower nor any of Borrower's agents, employees
or
independent contractors (1) have caused or are aware of a release or threat
of
release of Hazardous Materials (as defined herein) on any of the premises
or
personal property owned or controlled by Borrower, or any abutting property,
which could give rise to liability under any Environmental Law (as defined
herein) or any other Federal, state or local law, rule or regulation; (2)
have
arranged for the transport of or transported any Hazardous Materials in a
manner
as to violate, or result in potential liabilities under, any Environmental
Law;
(3) have received any notice, order or demand from the environmental Protection
Agency or any other Federal, state or local agency under any Environmental
aw;
(4) have incurred any liability under any Environmental Law in connection
with
the mismanagement, improper disposal or release of Hazardous Materials; or
(5)
are aware of any inspection or investigation of any of the premises or personal
property owned or controlled by Borrower or abutting property by any federal,
state or local agency for possible violations of any Environmental
Law.
To
the
best of Borrower's knowledge, no prior owner or tenant of any premises or
property presently controlled or owned by Borrower committed or omitted any
act
which caused the release of Hazardous Materials on such premises or property
which could give rise to a lien thereon by any Federal, state or local
government. No notice or statement of claim or lien affecting any property
or
premises owned or controlled by Borrower has been recorded or filed in any
public records by any Federal, state or local government for costs, penalties,
fines or other charges as to such property.
Borrower
agrees to indemnify and hold Bank harmless from all liability, loss, cost,
damage and expense, including attorney fees and costs of litigation, arising
from any and all of its violations of any Environmental Law (including those
arising from any lien by any Federal, state or local government arising from
the
presence of Hazardous Materials) or from the presence of Hazardous Materials
located on or emanating from any of the premises owned or controlled by the
Borrower. Borrower further agrees to reimburse Bank upon demand for any costs
incurred by Bank in connection with the foregoing.
Borrower
agrees that its obligations hereunder shall be continuous and shall survive
the
repayment of ail debts to Bank.
The
term
"Hazardous Materials" Includes but is not limited to any and all substances
(whether solid, liquid or gas) defined, listed, or otherwise classified as
pollutants, hazardous wastes, hazardous substances, hazardous materials,
extremely hazardous wastes, or words of similar meaning or regulatory effect
under any present or future Environmental Law or that may have a negative
impact
on human health or the environment, including but not limited to petroleum
and
petroleum products, asbestos and asbestos-containing materials, polychlorinated
biphenyls, lead, radon, radioactive materials, flammables and
explosives.
4
The
term
"Environmental Law" means any present and future Federal, state and local
laws,
statutes, ordinances, rules, regulations and the like, as well as common
law,
relating to protection of human health or the environment, relating to Hazardous
Materials, relating to liability for or costs of remediation or prevention
of
releases of Hazardous Materials or relating to liability for or costs of
other
actual or threatened danger to human health or the environment. The term
"Environmental Law" includes, but is not limited to. the following statutes,
as
amended, any successor thereto, and any regulations promulgated pursuant
thereto, and any state or local statutes, ordinances, rules, regulations
and the
like addressing similar issues: the Comprehensive Environmental Response,
Compensation and Liability Act; the Emergency Planning and Community
Right-to-Know Act; the Hazardous Materials Transportation Act; the Resource
Conservation and Recovery Act (including but not limited to Subtitle I relating
to underground storage tanks): the Solid Waste Disposal Act; the Clean Water
Act; the Clean Air Act the Toxic Materials Control Act the Safe Drinking
Water
Act; the Occupational Safety and Health Act; the Federal Water Pollution
Control
Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered
Species Act; the National Environmental Policy Act; the River and Harbors
Appropriation Act and the Massachusetts Hazardous Waste Management Act, M.G.L.
Chapter 21C, and the Massachusetts Oil and Hazardous Material Release Prevention
and Response Act, M.G.L. Chapter 21E.
4.
NEGATIVE COVENANTS
4.1 Limitations
on Indebtedness.
Borrower shall not issue any evidence of indebtedness or create, assume,
guarantee, become contingently liable for, or suffer to exist indebtedness
in
addition to indebtedness to the Bank, except indebtedness or liabilities
of
Borrower, other than for money borrowed, incurred or arising in the
ordinary
course of business.
4.2 Loans
or Advances.
Borrower shall not make any loans or advances to any individual, firm or
corporation, including without limitation its employees; provided, however,
that
Borrower may make advances to its employees, with respect to expenses incurred
or to be incurred by such employees in the ordinary course of business which
expenses are reimbursable by Borrower; and provided further, however, that
Borrower may extend credit in the ordinary course of business in accordance
with
customary trade practices.
4.3
Capital
Expenditures.
The
Borrower shall not, directly or indirectly, make or commit to make capital
expenditures by lease, purchase, or otherwise, except in the ordinary and
usual
course of business for the purpose of replacing machinery, equipment or other
personal property which, as a consequence of wear, duplication or obsolescence,
is no longer used or necessary in the Borrower's business.
4.4 Sale
of Assets.
Borrower shall not sell, lease or otherwise dispose of any of its
assets,
except in the ordinary and usual course of business and except for the purpose
of replacing machinery, equipment or other personal property which, as a
consequence of wear, duplication or obsolescence, is no longer used or necessary
in the Borrower's business, provided that fair consideration Is received
therefor; provided, however, in no event shall the Borrower sell, lease or
otherwise dispose of any equipment purchased with the proceeds of any loans
made
by the Bank.
4.5 Restriction
on Liens.
Borrower shall not grant any security interest in, or mortgage of, any of
its
properties or assets. borrower shall not agree with any person other than
the
Bank to not grant any security interest in, or mortgage of. any of its
properties or assets including the Collateral.
4.6 Other
Business.
Borrower shall not engage in any business other than the business in which
it is
currently engaged or a business reasonably allied thereto.
4.7 Change
of Name.
Borrower shall not change its legal name or his or her primary residence,
without giving the Bank at least 30 days prior written notice
thereof.
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5.
DEFAULT
5.1 Default.
"Event
of Default" shall mean the occurrence of one or more of any of the following
events:
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(a)
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default
of any liability, obligation or undertaking of the Borrower or
any
guarantor of the Obligations to the Bank, hereunder or otherwise,
including failure to pay in full and when due any installment of
principal
or interest or default of the Borrower or any guarantor of the
Obligations
under any other Loan Document;
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(b)
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failure
of the Borrower or any guarantor of the Obligations to maintain
aggregate
collateral security value satisfactory to the
Bank;
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(c)
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default
of any material liability, obligation or undertaking of the Borrower
or
any guarantor of the Obligations to any other
party;
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(d)
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if
any statement, representation or warranty heretofore, now or hereafter
made by the Borrower or any guarantor of the Obligations in connection
with this Agreement or in any supporting financial statement of
the
Borrower or any guarantor of the Obligations shall be determined
by the
Bank to have been false in any material respect when
made;
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(e)
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If
the Borrower or any guarantor of the Obligations is a corporation,
trust,
partnership or limited liability company, the liquidation, termination
or
dissolution of any such organization, or the merger or consolidation
of
such organization into another entity, or its ceasing to carry
on actively
its present business or the appointment of a receiver for its
property;
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(f)
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the
death of the Borrower or any guarantor of the Obligations and,
if the
Borrower or any guarantor of the Obligations is a partnership or
limited
liability company, the death of any partner or
member;
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(g)
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the
institution by or against the Borrower or any guarantor of the
Obligations
of any proceedings under the Bankruptcy Code 11 USC §101 et seq. or any
other law in which the Borrower or any guarantor of the Obligations
is
alleged to be insolvent or unable to pay its debts as they mature,
or the
making by the Borrower or any guarantor of the Obligations of an
assignment for the benefit of creditors or the granting by the
Borrower or
any guarantor of the Obligations of a trust mortgage for the benefit
of
creditors;
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(h)
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the
service upon the Bank of a writ in which the Bank is named as trustee
of
the Borrower or any guarantor of the
Obligations;
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(i)
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a
judgment or judgments for the payment of money shall be rendered
against
the Borrower or any guarantor of the Obligations, and any such
judgment
shall remain unsatisfied and in effect for any period of thirty
(30)
consecutive days without a stay of
execution;
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(j)
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any
xxxx, xxxx (including mechanics lien), seizure, attachment, execution
or
similar process shall be issued or levied on any of the property
of the
Borrower or any guarantor of the
Obligations;
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(k)
the
termination of any guaranty of the Obligations;
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(l)
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the
occurrence of such a change in the condition or affairs (financial
or
otherwise) of the Borrower or any guarantor of the Obligations,
or the
occurrence of any other event or circumstance, such that the Bank,
in its
sole discretion, deems that it is insecure or that the prospects
for
timely or full payment or performance of any obligation of the
Borrower or
any guarantor of the Obligations to the Bank has been or may be
impaired.
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5.2 Acceleration.
If an
Event of Default shall occur, at the election of the Bank, all Obligations
shall
become immediately due and payable without notice or demand, except with
respect
to Obligations payable on DEMAND, which shall be due and payable on DEMAND,
whether or not an Event of Default has occurred.
5.3 Nonexclusive
Remedies.
All of
the Bank's rights and remedies not only under the provisions of this Agreement
but also under any other agreement or transaction shall be cumulative and
not
alternative or exclusive, and may be exercised by the Bank at such time or
times
and in such order of preference as the Bank in its sole discretion may
determine.
6.
MISCELLANEOUS
6.1 Waivers.
The
Borrower waives notice of intent to accelerate, notice of acceleration, notice
of nonpayment, demand, presentment, protest or notice of protest of any
obligations, and all other notices, consents to any renewals or extensions
of
time of payment thereof, and generally waives any and all suretyship defenses
and defenses in the nature thereof.
6.2 Waiver
of Homestead.
To the
maximum extent permitted under applicable law, the Borrower hereby waives
and
terminates any homestead rights and/or exemptions respecting any of its property
under the provisions of any applicable homestead laws, including without
limitation, Chapter 188, Section 1, of the General Laws of
Massachusetts.
6.3 Severability.
If any
provision of this Agreement or portion of such provision or the application
thereof to any person or circumstance shall to any extent be held invalid
or
unenforceable, the remainder of this Agreement (or the remainder of such
provision) and the application thereof to other persons or circumstances
shall
not be affected thereby.
6.4 Set-Off.
The
Borrower hereby grants to the Bank a continuing lien and security interest
in
any and all deposits or other sums at any time credited by or due from the
Bank
(or any of its banking or lending affiliates, or any bank acting as a
participant under any loan arrangement between the Bank and the Borrower,
or any
third party acting on the Bank's behalf (collectively, the "Bank Affiliates"))
to the Borrower and any cash, securities, instruments or other property of
the
Borrower in the possession of the Bank or any Bank Affiliate, whether for
safekeeping or otherwise, or in transit to or from the Bank or any Bank
Affiliate (regardless of the reason the Bank or Bank Affiliate had received
the
same or whether the Bank or Bank Affiliate has conditionally released the
same)
as security for the full and punctual payment and performance of all of the
liabilities and obligations of the Borrower to the Bank or any Bank Affiliate
and such deposits and other sums may be applied or set off against such
liabilities and obligations of the Borrower to the Bank or any Bank Affiliate
at
any time, whether or not such are then due. whether or not demand has been
made
and whether or not other collateral is then available to the Bank or any
Bank
Affiliate.
6.5 Indemnification.
The
Borrower shall indemnify, defend and hold the Bank harmless of and from any
claim brought or threatened against the Bank by the Borrower, any guarantor
or
endorser of the Obligations, or any other person (as well as from reasonable
attorneys' fees and expenses in connection therewith) on account of the
Bank's relationship with the Borrower, or any guarantor or endorser of the
Obligations (each of which may be defended, compromised, settled or pursued
by
the Bank with counsel of the Bank's election, but at the expense of the
Borrower), except for any claim arising out of the gross negligence or willful
misconduct of the Bank. The within indemnification shad survive payment of
the
Obligations, and/or any termination, release or discharge executed by the
Bank
in favor of the Borrower.
6.6 Costs
and Expenses.
The
Borrower shall pay to the Bank any and all costs and expenses (including,
without limitation, reasonable attorneys' fees and disbursements, court costs,
litigation and other expenses) incurred or paid by the Bank in establishing,
maintaining, protecting or enforcing any of the Bank's rights or the
Obligations, including, without limitation, any and all such costs and expenses
incurred or paid by the Bank in defending the Bank's security interest in,
title
or right to any collateral or in collecting or attempting to collect or
enforcing or attempting to enforce payment of any Obligation.
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6.7 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be an
original, but all of which shall constitute but one agreement.
6.8 Complete
Agreement.
This
Agreement and the other Loan Documents constitute the entire agreement and
understanding between and among the parties hereto relating to the subject
matter hereof, and supersedes, all prior proposals, negotiations, agreements
and
understandings among the parties hereto with respect to such subject
matter.
6.9 Binding
Effect of Agreement.
This
Agreement shall be binding upon and inure to the benefit of the respective
heirs, executors, administrators, legal representatives, successors and assigns
of the parties hereto, and shall remain in full force and effect (and the
Bank
shall be entitled to rely thereon) until terminated as to future transactions
by
written notice from either party to the other party of the termination hereof;
provided that any such termination shall not release or affect any Obligations
incurred or rights accrued hereunder prior to the effective date of such
notice
(as hereinafter defined) of such termination. The Bank may transfer and assign
this Agreement and deliver it to the assignee, who shall thereupon have all
of
the rights of the Bank; and the Bank shall then be relieved and discharged
of
any responsibility or liability with respect to this Agreement. The Borrower
may
not assign or transfer any of its rights or obligations under this Agreement.
Except as expressly provided herein or in the other Loan Documents, nothing,
expressed or implied, is intended to confer upon any party, other than the
parties hereto, any rights, remedies, obligations or liabilities under or
by
reason of this Agreement or the other Loan Documents.
6.10 Further
Assurances.
Borrower will from time to time execute and deliver to Bank, and take or
cause
to be taken, alt such other or further action as Bank may request m order
to
effect and confirm or vest more securely in Bank all rights contemplated
by this
Agreement and the other Loan Documents or to comply with applicable statute
or
law.
6.11 Amendments
and Waivers.
This
Agreement may be amended and Borrower may take any action herein prohibited,
or
omit to perform any act herein required to be performed by it, if Borrower
shall
obtain the Bank's prior written consent to each such amendment, action or
omission to act. No delay or omission on the part of Bank in exercising any
right hereunder shall operate as a waiver of such right or any other right
and
waiver on any one or more occasions shall not be construed as a bar to or
waiver
of any right or remedy of Bank on any future occasion.
6.12 Terms
of Agreement.
This
Agreement shall continue in full force and effect so long as any Obligations
or
obligation of Borrower to Bank shall be outstanding, or the Bank shall have
any
obligation to extend any financial accommodation hereunder, and is supplementary
to each and every other agreement between Borrower and Bank and shall not
be so
construed as to limit or otherwise derogate from any of the rights or remedies
of Bank or any of the liabilities, obligations or undertakings of Borrower
under
any such agreement, nor shall any contemporaneous or subsequent agreement
between Borrower and the Bank be construed to limit or otherwise derogate
from
any of the rights or remedies of Bank or any of the liabilities, obligations
or
undertakings o f Borrower hereunder, unless such other agreement specifically
refers to this Agreement and expressly so provides.
6.13 Notices.
Any
notice under or pursuant to this Agreement shall be a signed writing or other
authenticated record (within the meaning of Article 9 of the Code). Any such
notice shall be deemed duly received and effective (i) if delivered in hand
to,
or received by, any officer or agent of the Borrower or the Bank, upon such
delivery or receipt, or (ii) if mailed by registered or certified mail, return
receipt requested, postage prepaid, and properly addressed to the Borrower
or
the Bank, two (2) business days after being so mailed. A party's proper address
is that set forth for such party in this Agreement or such address as that
party
may from time to time hereafter designate by notice to the other
party.
6.14 Governing
Law.
This
Agreement shall take effect as a sealed instrument and has been executed
or
completed and/or is to be performed in Massachusetts, and it and all
transactions thereunder or pursuant thereto shall be governed as to
interpretation, validity, effect, rights, duties and remedies of the parties
thereunder and in all other respects by the domestic laws of
Massachusetts.
8
6.15 Reproductions.
This
Agreement and all documents which have been or may be hereinafter furnished
by
Borrower to the Bank may be reproduced by the Bank by any photographic,
photostatic, microfilm, xerographic or similar process, and any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made in the regular course
of
business).
6.16 Venue.
Borrower irrevocably submits to the nonexclusive jurisdiction of any Federal
or
state court sitting in Massachusetts, over any suit, action or proceeding
arising out of or relating to this Agreement. Borrower irrevocably waives,
to
the fullest extent it may effectively do so under applicable law, any objection
it may now or hereafter have to the laying of the venue of any such suit,
action
or proceeding brought in any such court and any claim that the same has been
brought in an inconvenient forum. Borrower hereby consents to any and all
process which may be served in any such suit, action or proceeding, (i) by
mailing a copy thereof by registered and certified mail, postage prepaid,
return
receipt requested, to the Borrower's address shown in this Agreement or as
notified to the Bank and (ii) by serving the same upon the Borrower in any
other
manner otherwise permitted by law, and agrees that such service shall in
every
respect be deemed effective service upon Borrower.
6.17 JURY
WAIVER.
THE BORROWER AND BANK EACH HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH
LEGAL COUNSEL,
(A) WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING
IN CONNECTION WITH THIS AGREEMENT, THE OBLIGATIONS, ALL
MATTERS CONTEMPLATED
HEREBY AND DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND
(B) AGREE
NOT TO SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION
IN WHICH
A JURY TRIAL CANNOT BE, OR HAS NOT BEEN, WAIVED. THE BORROWER
CERTIFIES THAT
NEITHER THE BANK NOR ANY OF ITS REPRESENTATIVES, AGENTS OR COUNSEL
HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE BANK WOULD NOT IN THE EVENT
OF ANY
SUCH PROCEEDING SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY
JURY.
Executed
as an instrument under seal as of
June 4, 2003.
Witness:
Borrower
/s/
Xxxxxxx X. Xxxxxx /s/
Xxxxx X Xxxxxxx
Xxxxxxx
X.
Xxxxxx
Xxxxx
X
Xxxxxxx, individually
Accepted:
CHICOPEE SAVINGS BANK
By:
/s/
Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Assistant Vice President
9
10
Loan
No.______
ADJUSTABLE
TERM NOTE
June
4, 2003
$272,000.00 Chicopee.
Massachusetts
For
value
received, the undersigned Xxxxx X
Xxxxxxx,
an
individual , with an address of 00 Xxxxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
(the
"Borrower"), promises to pay to the order of CHICOPEE SAVINGS BANK, a
Massachusetts Savings Bank with an address of 00 Xxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxxxx 00000-0000 (together with its successors and assigns, the "Bank"),
the principal amount of Two
Hundred Seventy-Two Thousand Dollars and Zero Cents
($272,000.00)
on or
before June
4, 2013
(the
"Maturity Date"), as set forth below, together with interest from the date
hereof on the unpaid principal balance from time to time outstanding until
paid
in full. The Borrower shall pay consecutive monthly installments of principal
and interest, as follows: $3,158.15
on
July
4, 2003,
and the
same amount (except the last installment which shall be the unpaid balance)
on
the 4 m
of each
month thereafter. The aggregate principal balance outstanding shall initially
bear interest thereon at a per annum rate equal to 7.00%.
The
interest rate on the aggregate principal balance shall change on June
4, 2010
(the
"Change Date") to Three
Percent (3.00%)
above
the Treasury Index. On the Change Date each monthly installment due and payable
shall be recalculated (increased or reduced) to reflect the adjusted interest
rate, the outstanding principal balance at such time and the remaining term
of
the 10
year
amortization period commencing on the date of this Note in accordance with
the
Bank's calculation in the Bank's sole discretion.
Treasury
Index means the monthly average yield on United States Treasury securities,
adjusted to a constant maturity equal to the Applicable Treasury Rate Period
(as
hereinafter defined), or, in the event the Treasury index is no longer
available, the base, reference or other rate then designated by the Bank,
in its
sole discretion, for general commercial loan reference purposes, it being
understood that such rate is a reference rate, not necessarily the lowest,
established from time to time, which serves as the basis upon which effective
interest rates are calculated for loans making reference thereto. The Applicable
Treasury Rate Period is seven years.
This
Note
is secured by all collateral granted to the Bank by the Borrower or any endorser
or guarantor hereof or by any other party and shall be secured by any additional
collateral hereafter granted to the Bank by the Borrower or any endorser
or
guarantor hereof or by any other party.
Principal
and interest shall be payable at the Bank's main office or at such other
place
as the Bank may designate in writing in immediately available funds in lawful
money of the United States of America without set-off, deduction or
counterclaim. Interest on this Note is computed on a 30/360 simple interest
basis; that is, with the exception of odd days in the first payment period,
monthly interest is calculated by applying the ratio of the annual interest
rate
over a year of 360 days, multiplied by the outstanding principal balance,
multiplied by a month of 30 days. Interest for the odd days is calculated
on the
basis of the actual days to the next full month and a 360-day year.
At
the
option of the Bank, this Note shall become immediately due and payable without
notice or demand upon the occurrence at any time of any of the following
events
of default (each, an "Event of Default"): (1) default of any liability,
obligation or undertaking of the Borrower, any endorser or any guarantor
hereof
to the Bank, hereunder or otherwise, including failure to pay in full and
when
due any installment of principal or interest or default of the Borrower,
any
endorser or any guarantor hereof under any other loan document delivered
by the
Borrower, any endorser or any guarantor, or in connection with the loan
evidenced by this Note; (2) failure of the Borrower, any endorser or any
guarantor hereof to maintain aggregate collateral security value satisfactory
to
the Bank; (3) default of any material liability, obligation or undertaking
of
the Borrower, any endorser or any guarantor hereof to any other party; (4)
if
any statement, representation or warranty heretofore, now or hereafter made
by
the Borrower, any endorser or any guarantor hereof in connection with the
loan
evidenced by this Note or in any supporting financial statement of the Borrower,
any endorser or any guarantor hereof shall be determined by the Bank to have
been false in any material respect when made; (5) if the Borrower, any endorser
or any guarantor hereof is a corporation, trust, partnership or limited
liability company, the liquidation, termination or dissolution of any such
organization, or the merger or consolidation of such organization into another
entity, or its ceasing to carry on actively its present business or the
appointment of a receiver for Its property; (6) the death of the Borrower,
any
endorser or any guarantor hereof and, if the Borrower, any endorser or any
guarantor hereof is a partnership or limited liability company, the death
of any
partner or member; (7) t he institution by or against the Borrower, any endorser
o r any guarantor hereof of any proceedings under the Bankruptcy Code 11
USC
§101 et
seq.
or any
other law in which the Borrower, any endorser or any guarantor hereof is
alleged
to be insolvent or unable to pay its debts as they mature, or the making
by
the
Borrower, any endorser or any guarantor hereof of an assignment for the benefit
of creditors or the granting by the Borrower, any endorser or any guarantor
hereof of a trust mortgage for the benefit of creditors; (8) the service
upon
the Bank of a writ in which the Bank is named as trustee of the Borrower,
any
endorser or any guarantor of the Obligations; (9) a judgment or judgments
for
the payment of money shall be rendered against the Borrower, any endorser
or any
guarantor hereof, and any such judgment shall remain unsatisfied and in effect
for any period of thirty (30) consecutive days without a stay of execution;
(10)
any xxxx, xxxx (including mechanics lien), seizure, attachment, execution
or
similar process shall be issued or levied on any of the property of the
Borrower, any endorser or any guarantor hereof; (11) the termination of any
guaranty hereof; or (12) the occurrence of such a change in the condition
or
affairs (financial or otherwise) of the Borrower, any endorser or any guarantor
hereof, or the occurrence of any other event or circumstance, such that the
Bank, in its sole discretion, deems that it is insecure or that the prospects
for timely or full payment or performance of any obligation of the Borrower,
any
endorser or any guarantor hereof to the Bank has been or may be
impaired.
11
Any
payments received by the Bank on account of this Note shall, at the Bank's
option, be applied first, to accrued and unpaid interest; second, to the
unpaid
principal balance hereof; third to any costs, expenses or charges then owed
to
the Bank by the Borrower; and the balance to escrows, if any. Notwithstanding
the foregoing, any payments received after the occurrence and during the
continuance of an Event of Default shall be applied in such manner as the
Bank
may determine. The Borrower hereby authorizes the Bank to charge any deposit
account which the Borrower may maintain with the Bank for any payment required
hereunder without prior notice to the Borrower.
If
pursuant to the terms of this Note, the Borrower is at any time obligated
to pay
interest on the principal balance at a rate in excess of the maximum interest
rate permitted by applicable law for the loan evidenced by this Note, the
applicable interest rate shall be immediately reduced to such maximum rate
and
all previous payments in excess of the maximum rate shall be deemed to have
been
payments in reduction of principal and not on account of the interest due
hereunder.
The
Borrower represents to the Bank that the proceeds of this Note will not be
used
for personal, family or household purposes or
for the
purpose of purchasing or carrying margin stock or margin securities within
the
meaning of Regulations U and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R. Parts 221 and 224.
The
Borrower and each endorser and guarantor hereof grant to the Bank a continuing
lien on and security interest in any and all deposits or other sums a* any
time
credited by or due from the Bank (or any of its banking or lending affiliates,
or any bank acting as a participant under any loan arrangement between the
Bank
and the Borrower, or
any
third party acting on the Bank's behalf (collectively, the "Bank Affiliates"))
to the Borrower and each endorser or guarantor hereof and any cash, securities,
instruments or other property of the Borrower and each endorser and guarantor
hereof in the possession of the Bank or any Bank Affiliate, whether for
safekeeping or otherwise, or in transit to or from the Bank or any Bank
Affiliate (regardless of the reason the Bank or Bank Affiliate had received
the
same or whether the Bank or Bank Affiliate has conditionally released the
same)
as security for the full and punctual payment and performance of all of the
liabilities and obligations of the Borrower and any endorser and guarantor
hereof to the Bank or any Bank Affiliate and such deposits and other sums
may be
applied or set off against such liabilities and obligations of the Borrower
or
any endorser or guarantor hereof to the Bank or any Bank Affiliate at any
time,
whether or not such are then due, whether or not demand has been made and
whether or not other collateral is then available to the Bank or any Bank
Affiliate.
No
delay
or omission on the part of the Bank in exercising any right hereunder shall
operate as a waiver of such right or of any other right of the Bank, nor
shall
any delay, omission or waiver on any one occasion be deemed a part of or
waiver
of the same or any other right on any future occasion. The Borrower and every
endorser or guarantor of this Note, regardless of the time, order or place
of
signing, waives presentment, demand, protest, notice of intent to accelerate,
notice of acceleration and all other notices of every kind in connection
with
the delivery, acceptance, performance or enforcement o f this Note and assents
to any extension or postponement of the time of payment or any other indulgence,
to any substitution, exchange or release of collateral, and to the addition
or
release of any other party or person primarily or secondarily liable and
waives
all recourse to suretyship and guarantor defenses generally, including any
defense based on impairment of collateral. To the maximum extent permitted
by
law, the Borrower and each endorser and guarantor of this Note waive and
terminate any homestead rights and/or exemptions respecting any premises
under
the provisions of any applicable homestead laws, including without limitation.
Chapter 188, Section 1, of the General Laws of Massachusetts.
The
Borrower and each endorser and guarantor of this Note shall indemnify, defend
and hold the Bank and the Bank Affiliates and their directors, officers,
employees, agents and attorneys harmless against any claim brought or threatened
against the Bank by the Borrower, by any endorser or guarantor, or by any
other
person (as well as from attorneys' reasonable fees and expenses in connection
therewith) on account of the Bank's relationship with the Borrower or any
endorser or guarantor hereof (each of which may be defended, compromised,
settled or pursued by the Bank with counsel of the Bank's selection, but
at the
expense of the Borrower and any endorser and/or guarantor), except for any
claim
arising out of the gross negligence or willful misconduct of the
Bank.
The
Borrower and each endorser and guarantor of this Note agree to pay. upon
demand,
costs of collection of all amounts under this Note including, without
limitation, principal and interest, or in connection with the enforcement
of, or
realization on, any security for this Note, including, without limitation,
to
the extent permitted by applicable law, reasonable attorneys' fees and expenses.
Upon the occurrence and during the continuance of an Event of Default, interest
shall accrue at a rate per annum equal to the aggregate of 3.0% plus the
rate
provided for herein. If any payment due under this Note is unpaid for 15
days or
more, the Borrower shall pay. in addition to any other sums due under this
Note
(and without limiting the Bank's other remedies on account thereof), a late
charge equal to 5.0% of such unpaid amount.
12
This
Note
shall be binding upon the Borrower and each endorser and guarantor hereof
and
upon their respective heirs, successors, assigns and legal representatives,
and
shall inure to the benefit of the Bank and its successors, endorsees and
assigns.
The
liabilities of the Borrower and any endorser or guarantor of this Note are
joint
and several; provided, however, the release by the Bank of the Borrower or
any
one or more endorsers or guarantors shall not release any other person obligated
on account of this Note. Any and all p resent and future debts of the Borrower
to any endorser or guarantor of this Note are subordinated to the full payment
and performance of all present and future debts and obligations of the Borrower
to the Bank. Each reference in this Note to the Borrower, any endorser, and
any
guarantor, is to such person individually and also to all such persons jointly.
No person obligated on account of this Note may seek contribution from any
other
person also obligated, unless and until all liabilities, obligations and
indebtedness to the Bank of the person from whom contribution is sought have
been satisfied in full. The release or compromise by the Bank of any collateral
shall not release any person obligated on account of this Note.
The
Borrower and each endorser and guarantor hereof each authorizes the Bank
to
complete this Note if delivered incomplete in any respect. A photographic
or
other reproduction of this Note may be made by the Bank, and any such
reproduction shall be admissible in evidence with the same effect as the
original itself in any judicial or administrative proceeding, whether or
not the
original is in existence.
This
Note
is delivered to the Bank at one of its offices in Massachusetts, shall take
effect as a seated instrument and shall be governed by the internal laws
of the
Commonwealth of Massachusetts.
The
Borrower and each endorser and guarantor of this Note each irrevocably submits
to the nonexclusive jurisdiction of any Federal or state court sitting in
Massachusetts, over any suit, action or proceeding arising out of or relating
to
this Note. Each of the Borrower and each endorser and guarantor irrevocably
waives, to the fullest extent it may effectively do so under applicable law,
any
objection it may now or hereafter have to the laying of the venue of any
such
suit, action or proceeding brought in any such court and any claim that the
same
has been brought in an inconvenient forum. Each of the Borrower and each
endorser and guarantor hereby consents to any and all process which may be
served in any such suit, action or proceeding, (i) by mailing a copy thereof
by
registered and certified mail, postage prepaid, return receipt requested,
to the
Borrower's, endorser's or guarantor's address shown below or as notified
to the
Bank and (ii) by serving the same upon the Borrower(s), endorsees) or
guarantor(s) in any other manner otherwise permitted by law, and agrees that
such service shall in every respect be deemed effective service upon the
Borrower or such endorser or guarantor.
THE
BORROWER, EACH ENDORSER AND GUARANTOR AND THE BANK EACH
HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT
WITH LEGAL COUNSEL, (A) WAIVES ANY AND ALL RIGHTS TO A TRIAL BY JURY
IN ANY
ACTION OR PROCEEDING IN CONNECTION WITH THIS NOTE, ANY OF THE
OBLIGATIONS OF
THE BORROWER, EACH ENDORSER AND GUARANTOR TO THE BANK, AND ALL MATTERS
CONTEMPLATED HEREBY AND DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND
(B) AGREES
NOT TO SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION
IN WHICH
A JURY TRIAL CAN NOT BE. OR HAS NOT BEEN, WAIVED. THE BORROWER,
EACH ENDORSER
AND GUARANTOR AND THE BANK EACH CERTIFIES THAT NEITHER THE
BANK NOR
ANY OF ITS REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED,
EXPRESSLY OR
OTHERWISE, THAT THE BANK WOULD NOT IN THE EVENT OF A NY SUCH
PROCEEDING SEEK
TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY JURY.
Executed
as an instrument under seal as of June 4, 2003.
Witness: Borrower:
/s/
Xxxxxxx X.
Xxxxxx
/s/
Xxxxx X. Xxxxxxx
Xxxxxxx
X. Xxxxxx Xxxxx
X.
Xxxxxxx, individually
00 Xxxxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxxxxxxx
00000-0000
13
