CONSTRUCTION MORTGAGE NOTE
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$6,975,000.00 December , 2001
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Stamford, Connecticut
1. FOR VALUE RECEIVED, the undersigned, TECHNOLOGY DRIVE LLC, a Connecticut
limited liability company, with a notification address at 00 Xxxxxx Xxxxx, Xxxxx
Xxxx, Xxxxxxxxxxx 00000 (the "Maker"), promises to pay to the order of XXXXXXX
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BANK, a federal savings bank chartered under the laws of the United States (the
"Lender"), at its office located at City Place XX, 000 Xxxxxx Xxxxxx, Xxxxxxxx,
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Xxxxxxxxxxx 06103, or at such other place as the holder hereof (including the
Lender, hereinafter referred to as the "Holder"), may designate, the principal
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sum of SIX MILLION NINE HUNDRED SEVENTY-FIVE THOUSAND DOLLARS ($6,975,000.00),
or so much thereof as has been advanced or is outstanding pursuant to the terms
of this Note, together with interest as set forth herein (the "Loan"), from the
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date of this Note until the entire principal balance has been paid. The
principal amount of this Note shall be advanced pursuant to requests for
advances submitted by Maker pursuant to that certain Construction Loan Agreement
of even date herewith between Maker and Lender (the "Loan Agreement"), and this
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Note is subject to the terms and conditions of the Loan Agreement.
2. The principal amount outstanding under this Note will bear interest at a rate
per annum equal to the sum of (A) LIBOR in effect on each Reset Date plus (B)
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two hundred thirty-seven and one-half (237.5) basis points.
For the purpose hereof, the following terms shall have the following meanings:
"Business Day" shall mean any day on which commercial banks settle payments
in U.S. dollars in New York City and London.
The term "LIBOR" shall mean, as applicable to the Loan the rate per annum
as determined on the basis of the offered rates for deposits in U.S.
Dollars for a period of one calendar month which appears on the Telerate
page 3750 as of 11:00 a.m. London time on the day that is two London
Banking Days preceding the applicable Reset Date, provided, however, if the
rate described above does not appear on the Telerate system on any
applicable interest determination date, the LIBOR rate shall be the rate
(rounded upward, if necessary, to the nearest one hundred-thousandth of a
percentage point), determined on the basis of the offered rates for
deposits in U.S. Dollars for a period of one calendar month which are
offered by four major banks in the London interbank market at approximately
11:00 a.m. London time, on the day that is two (2) London Banking Days
preceding the applicable Reset Date as selected by Xxxxxx. The principal
London office of each of the four major London banks will be requested to
provide a quotation of its U.S. Dollar deposit offered rate. If at least
two such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations. If fewer than two quotations are
provided as requested, the rate for that date will be determined on the
basis of the rates quoted for loans in U.S. Dollars to leading European
banks for a
period one calendar month offered by major banks in New York City at
approximately 11:00 a.m. New York City time, on the date that is two London
Banking days preceding the applicable Reset Date. In the event that Xxxxxx
is unable to obtain any such quotation as provided above, it will be deemed
that LIBOR pursuant to the Loan cannot be determined. In the event that the
Board of Governors of the Federal Reserve System shall impose a Reserve
Percentage with respect to LIBOR deposits of Lender, then for any period
during which such Reserve Percentage shall apply, LIBOR shall be equal to
the amount determined above divided by an amount equal to 12 minus the
Reserve percentage.
"LIBOR Reserve Percentage" shall mean the maximum aggregate reserve
requirement (including all basic, supplemental, marginal and other
reserves) which is imposed on member banks of the Federal Reserve System
against "Euro-currency Liabilities" as defined in Regulation D.
"Reset Date" shall mean (i) the date of this Note, for the initial period
from the date hereof through December 31, 2001, and (ii) the first (1st)
day of each month thereafter, beginning on January 1, 2002 (but if any such
day is not a Business Day, then the first succeeding day that is a Business
Day shall instead apply, unless that day falls into the next calendar
month, in which case the first preceding day that is a Business Day shall
instead apply).
LIBOR shall be adjusted (a) on each Reset Date, and (b) on the effective
date of any change in the LIBOR Reserve Percentage. Holder shall give
prompt notice to Maker of LIBOR as determined or adjusted in accordance
herewith, which determination shall be conclusive absent manifest error.
Each month during the term of the Loan, Lender shall provide Maker with a
bill or statement indicating the amount of interest accrued under the Loan;
it being agreed however, that in no event shall Lender's failure to furnish
such bill or statement relieve Maker of any liability or obligation
whatsoever arising out of or in connection with the outstanding
indebtedness of this Note or the Loan.
If Holder determines (which determination shall be final and conclusive)
that, by reason of circumstances affecting the eurodollar market generally,
deposits in dollars (in the applicable amounts) are not being offered to
banks in the eurodollar market for the selected term, or adequate means do
not exist for ascertaining LIBOR, then Holder shall give notice thereof to
Maker. Thereafter, until Xxxxxx notifies Maker that the circumstances
giving rise to such suspension no longer exists, (a) the availability of
LIBOR shall be suspended, and (b) the interest rate for all amounts
outstanding under this Note shall be converted on the next Reset Date to a
rate of interest per annum equal to the Prime Rate (the "Base Rate"). For
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purposes hereof, the term "Prime Rate" shall mean the rate publicly
announced by Holder from time to time as its Prime Rate. The Prime Rate is
determined from time to time by Holder as a means of pricing some loans to
its borrowers. The Prime Rate is not tied to any external rate of interest
or index, and does not necessarily reflect the lowest rate of interest
actually
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charged by Holder to any particular class or category of customers. If and
when the Prime Rate changes, the rate of interest with respect to any
amounts hereunder to which the Base Rate applies will change automatically
without notice to Maker, effective on the date of any such change.
In addition, if, after the date of this Note, Holder shall determine (which
determination shall be final and conclusive) that any enactment,
promulgation or adoption of or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof
by a governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by Holder with
any guideline, request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency shall make it
unlawful or impossible for Holder to make or maintain or fund loans bearing
interest based on LIBOR, Holder shall notify Maker. Upon receipt of such
notice, until Holder notifies Maker that the circumstances giving rise to
such determination no longer apply, (a) the availability of LIBOR shall be
suspended, and (b) the interest rate on all amounts outstanding under this
Note shall be converted to the Base Rate either (i) on the next Reset Date
if Holder may lawfully continue to maintain amounts outstanding hereunder
to such day at a rate of interest based on LIBOR, or (ii) immediately if
Holder may not lawfully continue to maintain amounts outstanding hereunder
at a rate of interest based on LIBOR.
Interest shall be computed daily and payable monthly in arrears on the
basis of a 360 day year and for the actual number of days in each interest
period, together with all taxes (except income taxes) levied or assessed
against the Holder on this Note or the debt evidenced hereby, and together
with all costs, expenses, reasonable attorneys' and professionals' fees
incurred in any action to collect the indebtedness of this Note, to
foreclose the mortgage or any security interest granted to the Holder
securing this Note or in protecting or sustaining the lien of any mortgage
or any security agreement or other agreement or in any litigation or
controversy arising from or connected with any mortgage, security agreement
or other agreement or this Note.
3. From the date hereof and until December 31, 2002 (the "Conversion Date"),
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Maker shall pay interest only on the principal amount at the LIBOR rate plus
237.5 basis points. Thereafter, beginning on January 1, 2003, and on the first
(1st) day of each month thereafter, Maker shall make monthly payments of
principal and interest, in an amount sufficient to fully amortize the
outstanding principal balance of this Note in monthly installments based upon a
fifteen (15) year amortization schedule, as more particularly described on
Schedule A attached hereto. Unless sooner accelerated or paid, all outstanding
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principal, together with all accrued and unpaid interest, late charges, costs
and expenses shall be due and payable in full on or before December 31, 2009
(the "Maturity Date").
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4. The Holder shall make advances of the principal amount of this Note in
installments upon the request of the Maker, pursuant to the terms and conditions
set forth below and as set forth in the Loan Agreement of even date. All amounts
as have been, or shall be advanced, to the Maker, less
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any repayments, together with interest thereon, taxes, costs, expenses and
reasonable attorneys' fees, reasonable paralegals' fees and disbursements in
connection therewith and all other charges made pursuant to this Note shall be
due under this Note. Advances and payments on this Note shall be recorded on a
schedule or on the Maker's statements.
5. At any time prior to the Conversion Date, Maker shall have the option to
enter into and maintain during the term of this Note, a Swap Agreement to hedge
the interest rate expense pursuant to that certain ISDA Master Agreement with
the Lender or another acceptable counterparty.
6. Maker shall have the right to prepay at any time and from time to time, in
whole or in part, without penalty, any amount owing under this Note which is
accruing interest based on the Base Rate. If maker prepays (whether voluntary,
on default or otherwise) all or any part of this Note which is accruing interest
based on LIBOR on a day other than the next applicable Reset Date, Maker shall
pay to Holder, on demand therefor, all amounts due pursuant to Paragraph 7
below, including the cost of prepayment, if any.
7. Maker shall pay to Holder, on written demand therefor, together with the
written evidence of the justification therefore, all direct costs incurred,
losses suffered or payments made Holder by reason of any change in law or
regulation or its interpretation imposing any reserve, deposit, allocation of
capital, or similar requirement (including without limitation, Regulation D of
the Board of Governors of the Federal Reserve System) on Holder, its holding
company or any of their respective assets relating to taking LIBOR deposits. In
addition, Maker agrees to indemnify Holder against any liabilities, losses or
expenses (including loss of margin, any loss or expense sustained or incurred in
liquidating or employing deposits from third parties, and any loss or expense
incurred in connection with funds acquired to) effect, fund or maintain any
advance (or any part thereof) bearing interest based on LIBOR which Holder
sustains or incurs as a consequence of either (i) Maker's failure to make a
payment on the due date thereof; (ii) Maker's revocation (expressly, by later
inconsistent notices or otherwise) in whole or in part of any notice given to
Holder to request, convert, renew or prepay any principal amount, or (iii)
Maker's payment, prepayment or conversion of any principal amount bearing
interest based on LIBOR on a day other than the next applicable Reset Date.
8. The Maker agrees that if (i) Maker shall fail to make any payments of
principal and/or interest required to be paid under the terms of this Note
within three (3) Business Days of the date when due, or (ii) Maker shall fail to
observe or perform any other term, covenant or condition of this Note on Maker's
part to be observed or performed, and Maker shall fail to remedy such failure
within fifteen (15) days after written notice by Lender to Maker of such
failure, or if such failure is of such a nature that it cannot with due
diligence be completely remedied within such fifteen (15) day period, and Maker
shall not commence within said period of fifteen (15) days, or shall not
thereafter diligently prosecute to completion, all steps necessary to remedy
such failure, for an aggregate period not to exceed sixty (60) days after
written notice by Lender to Maker of such failure, or (iii) an Event of Default
(as defined in any other documents, instruments or agreements which evidence,
secure or guaranty the outstanding indebtedness of this Note, including, without
limitation, that certain Open-End Construction Mortgage Deed and Security
Agreement (the "Mortgage") or such other
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instrument, of this date between the Holder and the Maker occurs and continues
beyond all applicable cure periods set forth in the Mortgage, if any, or (iv)
the occurrence of any event or circumstance consisting an Event of Default under
any of the terms or provisions of the ISDA Master Agreement of event date
between maker and lender; or under any Credit Support Document as defined by
said Master Agreement, or (v) Maker or any Guarantor of the obligations under
this Note shall fail to perform or comply with the terms, covenants, or
conditions of any and all other obligations, indebtedness or financing
accommodations extended to, or on behalf of, the Maker or such Guarantor by the
Holder (collectively, the "Obligations"), then, upon the occurrence of any such
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event which shall continue beyond the applicable notice and cure periods, if any
(collectively, an "Event of Default"), the entire indebtedness with accrued
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interest thereon due under this Note shall, at the option of the Holder,
accelerate and become immediately due and payable without notice.
9. Within the limits set forth below, and provided (i) the Maker is in
compliance with all the terms and conditions of this Note, (ii) no Event of
Default has occurred and is continuing and has not been cured within the
applicable grace period, (iii) no condition exists which would constitute an
Event of Default but for the giving of notice, the passage of time or both, and
(iv) the Holder has not accelerated payment under this Note, the Holder shall
make advances under this Note to the Maker in accordance with the terms and
conditions set forth below, provided, however, that in no event shall the
maximum principal amount advanced under this Note exceed the amount of
$6,975,000.00 at any time:
(a) The Maker covenants and agrees that the proceeds of this Note shall be
used as follows: for hard construction costs to build an approximately 98,500
square foot one-story office and research and development building (the
"Project") at 0 Xxxxxxxxxx Xxxxx, Xxxxxx Xxxxxxxx Xxxx, Xxxxxxxxxxx,
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Connecticut, (the "Property"), including, but not limited to, the costs to
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acquire the Property, all hard and soft costs associated with the construction
of the improvements to be located on the Property, interest due on the Loan
during construction and all other costs, including, but not limited to, legal
fees, Lender fees, and third party fees associated with the Loan and contingency
costs, provided all such costs are contained in a construction budget approved
by Lender.
(b) All advances for the construction costs of the Project shall be
approved by the Holder and subject to evidence reasonably satisfactory to Holder
that such costs have been incurred and/or performed by Borrower pursuant to
approved costs.
(c) Prior to the disbursement of any Loan proceeds, Maker shall provide
evidence that it has obtained all necessary municipal approvals and all other
permits, licenses and other government and development agency approvals
necessary for the portion of the Project then completed and that all utility
services required for the use, occupancy, and operation of the Property and the
Project are or will be available.
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(d) The Maker specifically understands and agrees that all advances to be
disbursed under this Note shall be subject to all of the terms and conditions as
set forth in the Construction Loan Agreement of even date herewith.
10. Maker shall establish a Project operating account (the "Operating Account")
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with the Holder. The Maker hereby authorizes the Holder to deposit all advances
to the Maker under this Note directly into the Operating Account. Under no
circumstances shall advances be made to the Maker after the applicable Maturity
Date. The obligation of the Holder to make advances under this Note is further
subject to the conditions set forth in the Loan Agreement.
11. In the event that any federal, state or local law is passed or a final
decision of any court is rendered which in any way impairs the Holder's ability
to vary the Note Rate in accordance with the terms hereof the entire
indebtedness and any accrued interest thereon under the Note shall become
immediately due and payable after giving Maker sixty (60) days written notice
and opportunity to pay the amount due under the Note in full.
12. The Maker agrees that upon the occurrence of an Event of Default, or after a
court ordered judgment with respect to the Loan after the applicable Maturity
Date, the indebtedness of this Note shall bear interest at an annual rate of
four percent (4.0%) above the then applicable rate under the Note (the "Default
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Rate"). Maker acknowledges that: (i) such additional rate is a material
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inducement to Holder to make the loan evidenced by this Note; (ii) Holder would
not have made the loan in the absence of the agreement of the Maker to pay such
additional Default Rate; (iii) such additional Default Rate represents
compensation for increased risk to Maker that the indebtedness due under this
Note will not be repaid; and (iv) such additional Default Rate is not a penalty
and represents a reasonable estimate of (a) the cost to Holder in allocating its
resources (both personal and financial) to the on-going review, monitoring,
administration and collection of the loan and (b) compensation to Holder for
losses that are difficult to ascertain.
13. If the Holder receives any payment, or part thereof, more than ten (10) days
after its due date, the Holder shall assess the Maker with a late charge of five
percent (5.0%) of the total amount of such late payment to defray the extra
expense involved in handling such delinquent payment. Such charge shall be in
addition to, and not in lieu of, any other remedy Holder may have and shall be
in addition to, and not in lieu of, Maker's obligation to pay any fees and
charges of any agents or attorneys employed upon the occurrence of an Event of
Default hereunder.
14. Maker and any Guarantor hereby grant to Lender, a continuing lien, security
interest and right of setoff as security for all liabilities and obligations to
Lender whether now existing or hereafter arising, upon and against all deposits,
credits, collateral and property, now or hereafter in the possession, custody,
safekeeping or control of Lender or any entity under the control of Xxxxxxx Bank
and its successors and assigns or in transit to any of them. At any time
following an Event of Default, without demand or notice (any such notice being
expressly waived by Maker), Lender may setoff the same or any part thereof and
apply the same to any liability or obligation of Maker and any Guarantor to
Lender even though unmatured and regardless of the adequacy of any other
collateral
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securing the Loan. ANY AND ALL RIGHTS TO REQUIRE LENDER TO EXERCISE ITS RIGHTS
OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURED THE LOAN PRIOR TO
EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER
PROPERTY OF MAKER OR ANY GUARANTOR ARE HEREBY KNOWINGLY, VOLUTARILY AND
IRREVOCABLY WAIVED.
15. The Maker gives the Holder a lien and right of setoff for all of the Maker's
liabilities upon and against all the deposits, credits, collateral and property
of the Maker now or hereafter in the possession or control of the Holder or in
transit to it. The Holder may, upon the occurrence of an Event of Default, apply
or set off the same, or any part thereof, to any liability of the Maker even
though unmatured.
16. The failure by the Holder to insist upon the strict performance by the Maker
of any terms and provisions contained herein shall not be deemed to be a waiver
of any terms and provisions herein, and the Holder shall retain the right
thereafter to insist upon strict performance by the Maker of all the terms and
provisions of this Note or any document securing the repayment of this Note.
17. If the proceeds from an insurance policy are paid to the Holder pursuant to
the Loan Documents or any other agreement executed in connection herewith, the
Holder shall apply such proceeds in accordance with the Mortgage.
18. This Note shall be governed by and construed in accordance with the laws of
the State of Connecticut. The Maker consents to the jurisdiction of the
appropriate court within the State of Connecticut with respect to any claims or
disputes arising out of the enforcement of this Note.
19. THE MAKER ACKNOWLEDGES THAT THE LOAN EVIDENCED BY THIS NOTE IS A COMMERCIAL
TRANSACTION AND WAIVES ITS RIGHTS TO NOTICE AND HEARING UNDER CHAPTER 903a OF
THE CONNECTICUT GENERAL STATUTES, OR AS OTHERWISE ALLOWED BY ANY OTHER STATE OR
FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE HOLDER DESIRES TO
USE, AND FURTHER, WAIVES DILIGENCE, DEMAND, PRESENTMENT FOR PAYMENT, NOTICE OF
NONPAYMENT, PROTEST AND NOTICE OF PROTEST, AND NOTICE OF ANY RENEWALS OR
EXTENSIONS OF THIS NOTE. THE MAKER ACKNOWLEDGES THAT IT MAKES THIS WAIVER
KNOWINGLY, VOLUNTARILY, WITHOUT DURESS AND ONLY AFTER EXTENSIVE CONSIDERATION OF
THE RAMIFICATIONS OF THIS WAIVER WITH ITS ATTORNEYS. MAKER FURTHER CONSENTS TO
THE ISSUANCE OF ANY SUCH PREJUDGMENT REMEDIES WITHOUT A BOND AND AGREES NOT TO
REQUEST OR FILE MOTIONS SEEKING TO REQUIRE THE POSTING OF A BOND UNDER PUBLIC
ACT 93-431 IN CONNECTION WITH XXXXXX'S EXERCISE OF ANY PREJUDGMENT REMEDIES.
20. THE MAKER WAIVES TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION, PROCEEDING
OR ANY MATTER ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO THIS NOTE OR
THE FINANCING TRANSACTION OF WHICH THIS NOTE IS
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A PART OR THE DEFENSE OR ENFORCEMENT OF ANY OF THE HOLDER'S RIGHTS AND REMEDIES
IN CONNECTION THEREWITH. THE MAKER ACKNOWLEDGES THAT IT MAKES THIS WAIVER
KNOWINGLY, VOLUNTARILY, WITHOUT DURESS AND ONLY AFTER EXTENSIVE CONSIDERATION OF
THE RAMIFICATIONS OF THIS WAIVER WITH ITS ATTORNEYS.
21. The Maker acknowledges that the obligations under this Note are irrevocable,
absolute and unconditional and Maker hereby waives demand, presentment, protest,
notice of protest, notice of dishonor, collection, notice of nonpayment and all
notices of a like notice.
22. If one or more of the provisions of this Note shall for any reason be held
to be invalid, illegal or unenforceable, in whole or in part, or in any respect,
or if any one or more of the provisions of this Note shall operate, or would
prospectively operate, to invalidate this Note, then such provision or
provisions only shall be deemed to be null and void and of no force or effect
and shall not affect any other provision of this Note, and the remaining
provisions of this Note shall remain operative and in full force and effect,
shall be valid, legal and enforceable, and shall in no way be affected
prejudiced or disturbed thereby.
23. This Note may not be modified or terminated orally, but only by a written
instrument signed by the party against whom enforcement of any such modification
or termination is sought. Time is and shall be of the essence in the performance
of all obligations under this Note. This Note shall be governed by and construed
in accordance with the laws of the State of Connecticut. The Maker consents to
the jurisdiction of the appropriate court within the State of Connecticut with
respect to any claims or disputes arising out of the enforcement of this Note.
24. As used in this Note, words of any gender shall be deemed to apply equally
to any other gender, the plural shall include the singular and the singular
shall include the plural (as the context shall require), and the word "person"
shall refer to individuals, entities, authorities and other natural and
juridical persons of every type.
25. If this Note is not or hereafter shall be, signed by more than one person,
it shall be the joint and several obligation of all such persons (including,
without limitation, all makers, endorsers, guarantors, sureties, if any) and
shall be binding on all such persons and their respective heirs, devisees,
legatees, executors, administrators, legal representatives, successors and
assigns. This Note and all covenants, agreements and provisions set forth in
this Note shall inure to the benefit of Xxxxxx and its successors and assigns.
26. Maker xxxxxx agrees and acknowledges that this Note is secured by and
entitled to the benefits of the Mortgage and the terms, covenants and agreements
set forth in the Mortgage, which Mortgage is incorporated herein by this
reference.
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27. Maker agrees to pay all taxes or duties assessed upon this Note against
Holder or other owner of this Note or the debt evidenced hereby, or the Mortgage
or the Property, excluding franchise, excise, corporate and income taxes.
28. The indebtedness of this Note, including, without limitation, all advances
made to the Maker pursuant to the terms of this Note, is secured by, inter alia,
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the Mortgage between the Maker and the Holder encumbering the Property, together
with all appurtenances thereto, all present and future improvements, fixtures
and equipment constructed or placed thereon and the articles of personal
property now or hereafter constructed or placed thereon.
TECHNOLOGY DRIVE LLC
By:
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Name:
Title:
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SCHEDULE A
TO CONSTRUCTION MORTGAGE NOTE
TECHNOLOGY DRIVE LLC
PRINCIPAL REPAYMENT SCHEDULE
Period Principal Payments
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Months 1-12 Interest only
Months 13-24 $27,950.00 per month
Months 25-36 $29,200.00 per month
Months 37-48 $30,550.00 per month
Months 49-60 $31,900.00 per month
Months 61-72 $33,350.00 per month
Months 73-84 $34,850.00 per month
Months 85-96 $36,450.00 per month
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