CONSTRUCTION LINE-OF-CREDIT MAXIMUM $12,000,000.00
| Exhibit 10.37 |
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CONSTRUCTION
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LINE-OF-CREDIT
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MAXIMUM
$12,000,000.00
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AFTER
DATE, FOR VALUE RECEIVED, the Undersigned, Tradeport Development III, LLC, a
Connecticut limited liability company, having a usual place of business at 000
Xxxx Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx (the "Borrower"),
promises to pay to Berkshire Bank, a Massachusetts banking corporation,
("Lender"), or order, at the Lender's main office presently located at 00 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx, or at such other place as Lender may designate
in writing, the maximum principal sum of Twelve Million and 00/100 Dollars
($12,000,000) or so much thereof as may be Advanced (each Advance shall be
referred to as an “Advance” and all such Advances shall collectively be referred
to as the “Advances”) pursuant to a Construction Loan and Security Agreement of
even date herewith (“Loan Agreement”) and incorporated by reference
herein made between Borrower and Lender. Capitalized terms not
defined herein shall have the meaning given in the Loan
Agreement. The principal outstanding shall be repaid, together with
interest thereon as provided in this Note as follows:
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INTEREST
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For the
entire term of the Loan, the Loan shall bear interest at an adjustable annual
rate equal to thirty (30) day LIBOR, plus Two Hundred Seventy Five (275) basis
points (collectively the “Applicable Rate”). Such adjustments shall
become effective on the 1st day of each month (the “Reset
Date”). Lender shall not be required to notify Borrower of
adjustments in said interest rate. Notwithstanding the
foregoing, at no time shall the Applicable Rate be less than four percent
(4.00%) during the “Interest Only Period” (defined hereinafter).
Subject
to, and in accordance with the provisions of this Note and the Loan Agreement,
accrued and unpaid interest shall be due and payable monthly, in arrears on the
first day of each month.
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REPAYMENT
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Principal
and interest due Lender hereunder shall be payable as follows:
A. Commencing
on March 1, 2009 and thereafter on the same day of each succeeding
month for a period of twelve (12) months (the “Interest Only Period”), monthly
payments of interest only in arrears, calculated at the above rate of interest
upon the unpaid principal
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hereunder.
B. Commencing
on March 1, 2010 and thereafter on the same day of each succeeding
month for a period of one hundred eight (108) months (and based upon an
amortization period of twenty-five (25) years, equal monthly payments of
principal in accordance with the attached amortization schedule, plus accrued
interest at the above Applicable Rate.
C. All
remaining unpaid principal and all accrued interest thereon shall be due and
payable in full ten (10) years from the date hereof.
Subject
to the terms and conditions contained in the Loan Agreement, the amount of the
Borrower’s available construction line of credit hereunder shall be subject to
the terms set forth in the Loan Agreement. This Note is the Note
referred to in, and is subject to, and entitled to, the benefits of the Loan
Agreement between the Borrower and the Lender. The terms used herein
which are defined in the Loan Agreement shall have their defined meanings when
used herein. The Loan Agreement, among other things, contains
provisions for acceleration of the maturity of this Note upon the happening of
certain stated events.
Principal
sums advanced under this Note shall reduce the amount of principal available
under this Note and may not be
re-borrowed or re-advanced. This Note may be prepaid only in
accordance with the provisions set forth in the Loan Agreement which does
contain a provision for a Prepayment Premium in accordance with Section
4.10 of the Loan Agreement. All prepayments (with prepayment
defined herein as any payment of principal in advance of its due date) shall be
applied against the principal payments due hereunder in the inverse order of
their maturity.
The
Lender may, in its sole discretion, and notwithstanding execution of this Note
by the Borrower in its stated maximum Principal Sum, act to advance lesser sums
thereon to the Borrower in amounts, and at times in accordance with the Loan
Agreement.
However,
nothing herein shall be construed to restrict the Lender, in its sole and
exclusive discretion, from making Advances in excess of the stated maximum
dollar amount, without requirement of execution of additional promissory
note(s), or otherwise modifying this Note, and its so doing at any time, or
times, shall not waive its rights to insist upon strict compliance with the
terms of this Note, the Loan Agreement, or any other instruments executed in
connection with this financial transaction, at any other time, and to further
rely upon all collateral secured to it for satisfaction of all obligations of
the Borrower to the Lender, without exception.
Xxxxxxxx
agrees that the Lender may, at its sole and exclusive discretion, make loan
advances to the Borrower upon verbal, or written, authority of any two of the
following four individuals: Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxxxx,
Xxxxxxxxx X. Xxxxxxxx and Xxxxx Xxxxxxxxx ; may deliver loan proceeds by direct
deposit to any demand deposit account of the Borrower with the Lender, or
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otherwise,
as so directed; and that all such loans and advances as evidenced solely by the
Xxxxxx's books, ledgers and records shall conclusively represent binding
obligations of the Borrower hereunder.
The
Lender shall also record as a debit to the Borrower’s Loan Account, in
accordance with its customary accounting practice, all other obligations, debts,
charges, expenses, and other items properly chargeable to the Borrower; and
shall credit all payments made by the Borrower on account of indebtedness
evidenced by the Borrower’s Loan Account; as well as all proceeds of collateral
which are finally paid to the Lender at its own office in cash or solvent
credits; and other appropriate debits and credits. The principal
balance of the Borrower’s Loan Account shall reflect the amount of the
Borrower’s indebtedness to the Lender from time-to-time by reason of loans and
other appropriate charges hereunder. At least once each month the
Lender shall render a statement of account for the Borrower’s Loan Account which
statement shall be considered correct and accepted by the Borrower and
conclusively binding upon the Borrower, unless the subject of written objection
received by Xxxxxx, certified mail, return receipt requested, within
ten (10) days after mailing of its statement to
Borrower.
Borrower
does hereby irrevocably grant to the Lender, full power and authority, at its
discretion, to debit any deposit account of the Borrower with the Lender for the
amount of any monthly interest owing on Xxxxxxxx’s Loan Account referred to
herein; for the amount of any principal reduction, or for any repayment of
obligations due upon Borrower’s Loan Account which the Lender may require, all
without prior notice, or demand upon the Borrower.
Any
payments received by Lender with respect to this Note shall be applied first to
any costs, charges, or expenses (including attorney's fees) due Lender from the
Borrower, second to any unpaid interest hereunder, and third to the unpaid
Principal Xxx.
If any
payment required hereunder is more than ten (10) days overdue, (in
addition to the interest accruing hereunder) a late charge of five percent (5%)
of the overdue payment shall be charged to the Borrower and be immediately due
and payable to Lender. Any payment having a due date falling upon a
Saturday, Sunday, or legal holiday shall be due and payable on the next business
day for which Lender is open for business, and interest shall continue to accrue
during any such period.
If any
payment received by Lender with respect to this Note shall be deemed by a court
of competent jurisdiction to have been a voidable preference or fraudulent
conveyance under federal or state law, or otherwise due any party other than
Lender, then the obligation for which the payment was made shall not be
discharged by the payment and shall survive as an obligation due hereunder,
notwithstanding the Lender's return to the Borrower or any other party of the
original of this Note or other instrument evidencing the obligation for which
payment was made.
Interest
hereunder shall be computed in accordance with the Loan
Agreement. Upon the occurrence of an Event of Default hereunder,
interest upon the total unpaid principal hereunder shall thereafter, at Xxxxxx's
option, without notice to Borrower and until payment in full of all obligations
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hereunder,
accrue at a rate ("Default Rate") equal to five percent (5%) above the interest
rate then in effect hereunder at the time of default.
It is not
intended under this Note to charge interest at a rate exceeding the maximum rate
of interest permitted to be charged under applicable law, but if interest
exceeding said maximum rate should be paid hereunder, the excess shall, at
Lender's option, be (a) deemed a voluntary prepayment of principal not subject
to the prepayment premium (if any) set forth herein or (b) refunded to the
Borrower.
The following described property, in
addition to all other collateral now or hereafter provided by the Borrower to
Lender, shall secure this Note and all other present or future obligations of
the Borrower to Lender: The Loan shall be secured by First Mortgage and Security
Interest on the Premises known as 000 Xxxxxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxx
(“Mortgaged Premises”), together with a collateral assignment of rents and
leases. The Lender shall also be granted a collateral
assignment of all deposits, rights, licenses, permits, construction contracts,
architect contracts and other governmental approvals necessary for the
construction, development, use and occupancy of the Mortgaged Premises for its
intended purpose.
As
additional collateral for the payment and performance of this Note and all other
obligations, whether now existing or hereafter arising, of the Borrower to
Lender, Lender shall at all times have and is hereby granted a security interest
in and right of offset against all cash, deposit balances and/or accounts,
instruments, securities, or other property of the Borrower, now or hereafter in
the possession of Lender, whether for safekeeping or otherwise. This
right of offset shall permit Lender at any time, after default, and without
notice to the Borrower to transfer such funds or property as may be deemed by
Lender to be appropriate so as to reduce or satisfy any obligation of the
Borrower to the Lender.
This Note
shall be in default, and all unpaid principal, interest, and other amounts due
hereunder, shall, at Xxxxxx's option, be immediately due and payable, without
prior notice, protest, or demand, upon the occurrence of any one or more of the
events of default (the "Events of Default"), in accordance with the terms and
conditions of the Loan Agreement. Default upon this Note shall also
operate as a default upon all other Obligations of Borrower to
Lender.
The
Borrower (a) waives presentment, demand, notice, protest, and delay in
connection with the delivery, acceptance, performance, collection, and
enforcement of this Note, and (b) assents to any extension, renewal,
modification, or other indulgence permitted by Lender with respect to this Note,
including, without limitation, any release, substitution, or addition of
co-makers, of this Note and any release, substitution, or addition of collateral
securing this Note or any other obligations of the Borrower to Lender, and (c)
authorizes Xxxxxx, in its sole and exclusive discretion and without notice to
the Borrower, to complete this Note if delivered incomplete in any
respect.
No
indulgence, delay, or omission by Xxxxxx in exercising or enforcing any of its
rights or remedies hereunder shall operate as a waiver of any such rights or
remedies or of the right to exercise them at any later time. No
waiver of any default hereunder shall operate as a waiver of any other
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default
hereunder or as a continuing waiver. The Lender's acceptance of any
payment hereunder, following any default, shall not constitute a waiver of such
default or of any of the Lender's rights or remedies hereunder (including
charging interest at the Default Rate), unless waived in writing by
Xxxxxx.
All of
the Lender's rights and remedies hereunder and under any other loan documents,
or instruments, shall be cumulative and may be exercised singularly or
concurrently, at the Lender's sole and exclusive discretion.
The
Borrower agrees to pay on demand all costs and expenses, including, but not
limited to, reasonable attorney's fees, incurred by Xxxxxx in connection with
the protection and/or enforcement of any of Xxxxxx's rights or remedies
hereunder, whether or not any suit has been instituted by Xxxxxx.
The word
"Lender" where used herein shall mean the named payee, its successors, assigns,
affiliates, and endorsees (and/or the holder of this Note if, at any time, it is
made payable to bearer), all of whom this Note shall inure to their benefit as
holders in due course.
The word
"Borrower" where used herein includes its successors and assigns of this Note,
and their respective heirs, successors, assigns, and representatives, shall be
jointly and severally liable hereunder. Any reference herein to the
Borrower, is a reference to such party or parties individually as well as
collectively.
The use
of masculine or neuter genders hereunder shall be deemed to include the
feminine, and the use of the singular or the plural herein shall be deemed to
include the other, as the context may require.
The
Borrower represents that the proceeds of this Note will not be used for
personal, family, or household purposes and that this loan is strictly a
commercial transaction.
Except as
provided in clauses A, B, C, D and E, below, notwithstanding anything else to
the contrary contained in this Construction Note or in any other document or
instrument, the indebtedness evidenced by this Construction Note or evidenced or
secured thereunder shall be non-recourse to the Borrower following the receipt
of a final certificate of occupancy for the Mortgaged Premises after
which Borrower shall be liable upon the indebtedness evidence hereby
or evidenced or secured thereby to the full extent (but only to the extent) of
the security therefore, the same being the Mortgaged Premises and all rights,
estates and interests therein or related thereto securing the payment of this
Construction Note. If an Event of Default occurs hereunder or under
any of the Obligations, or in the timely and proper performance of any
Obligations of Borrower thereunder, any judicial proceedings brought by Xxxxxx,
or the holder hereof, against Borrower shall be limited to the preservation,
enforcement and foreclosure, or any thereof, of the liens, security, title,
estates, rights and security interests now or at anytime hereafter securing the
payment of this Construction Note or the other Obligations of
Borrower to Lender, and no attachment, execution or other writ of process shall
be sought, issued, or levied upon any assets, properties or funds of Borrower
other than the
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Mortgaged
Premises (except as provided hereafter) and in the event of foreclosure of such
liens, security, title, estates, rights or security interests, securing the
payment of the Construction Note, and/or other Obligations of Borrower, no
judgment for any deficiency upon the indebtedness evidenced hereby or evidenced
or secured thereby shall be sought or obtained by Xxxxxx, or the holder hereof,
against Borrower, unless there has occurred an Event of
Default. Borrower shall be unconditionally liable to
Lender for all of its Obligations due to Lender by reason of, or in connection
with the occurrence of any of the following events:
A. The
misapplication of any insurance proceeds or condemnation awards, including, but
not limited to, the failure to deliver same to Lender, any receiver or any
purchaser at foreclosure, if appropriate;
B. Following
an Event of Default, the misapplication of any tenant rents or security deposits
or any other refundable deposits, including, but not limited to, the failure to
deliver same to Lender, any receiver or any purchaser at foreclosure, if
appropriate;
C. The
misapplication of any Gross Revenues generated at or by the Mortgaged Premises
after the occurrence of an Event of Default under the Loan
Documents;
X. Xxxxx
committed on the Mortgaged Premises or damage to the Mortgaged Premises as a
result of the intentional misconduct or gross negligence of Borrower or the
wrongful removal or destruction of any portion of the Mortgaged Premises;
or
E. Loss
incurred by lender and caused by the material breach of any material
representation or warranty made in connection with the Loan known by Borrower
or its Member to have been false when made or deemed made, including
any material misrepresentation or inaccuracy contained in any financial
statement or other document provided to the Lender pursuant to this Agreement
known by Borrower or its Member to have been false or inaccurate when
provided.
THIS NOTE
SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, AND THE
BORROWER SUBMITS TO THE JURISDICTION OF ITS COURTS WITH RESPECT TO ALL CLAIMS
CONCERNING THIS NOTE OR ANY COLLATERAL SECURING IT.
ALL
PARTIES TO THIS NOTE, INCLUDING LENDER, AND AS A NEGOTIATED PART OF THIS
TRANSACTION, HEREBY EXPRESSLY WAIVE ALL RIGHTS TO TRIAL BY JURY, AS TO ALL
ISSUES, INCLUDING ANY COUNTERCLAIMS, WITHOUT EXCEPTION, IN ANY ACTION OR
PROCEEDING RELATING, DIRECTLY OR INDIRECTLY, TO THIS
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NOTE
AND/OR OTHER INSTRUMENTS OR LOAN DOCUMENTS (IF ANY) EXECUTED IN CONNECTION
HEREWITH.
This Note
constitutes a final written expression of all of its terms and is a complete and
exclusive statement of those terms. Any modification or waiver of any
of these terms must be in writing signed by the party against whom the
modification or waiver is to be enforced.
The
Borrower agrees to be bound by the terms of this Note and acknowledge receipt of
a signed copy hereof.
[THE
REMAINDER OF THIS PAGE INTENTIONALLY ENDS HERE]
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Signed as
a sealed instrument this 6th day of February, 2009.
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TRADEPORT
DEVELOPMENT III, LLC
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Xxxxxxx
Land & Nurseries, Inc.
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/s/Xxxxxx
X. Xxxxxxx
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By:
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/s/Xxxxxxxxx
X. Xxxxxxxx
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Witness
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Its
duly authorized
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/s/Xxxxxx
X. Xxxxxxxxxx
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Xxxxxxxxx
X. Xxxxxxxx
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Witness
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Its
President
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