Exhibit 4.12
INSTRUMENT PREPARED BY AND AFTER
RECORDATION RETURN TO:
Xxxxxx X. Xxxxxx, Esq.
Xxxxx Xxxxxxxx Xxxxxxxx Pachios & Xxxxx, LLC
One City Center
P.O. Box 9546
Portland, ME 04112-9546
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FIRST LEASEHOLD MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS, AND FINANCING STATEMENT
by and between
KEYBANK NATIONAL ASSOCIATION
as Lender
and
AEROVOX INCORPORATED
as Borrower and Sublessee
dated
February 29, 2000
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FIRST LEASEHOLD MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS, AND FINANCING STATEMENT
to
KEYBANK NATIONAL ASSOCIATION
THIS INSTRUMENT CONSTITUTES A FINANCING STATEMENT UNDER THE MASSACHUSETTS
UNIFORM COMMERCIAL CODE COVERING THE ITEMS AND TYPES OF COLLATERAL DESCRIBED
HEREIN. THE NAMES OF THE DEBTOR AND THE SECURED PARTY, THE MAILING ADDRESS OF
THE SECURED PARTY FROM WHICH INFORMATION CONCERNING THE SECURITY INTEREST MAY BE
OBTAINED, THE MAILING ADDRESS OF THE DEBTOR AND A STATEMENT INDICATING THE
TYPES, OR DESCRIBING THE ITEMS, OF COLLATERAL ARE AS DESCRIBED BELOW AND ON
EXHIBIT C ATTACHED HERETO, IN COMPLIANCE WITH THE REQUIREMENTS OF ARTICLE 9,
SECTION 402 OF THE UNIFORM COMMERCIAL CODE, AS ENACTED IN THE COMMONWEALTH OF
MASSACHUSETTS. THIS INSTRUMENT IS INITIALLY INTENDED TO SECURE THE FINANCING OF
CONSTRUCTION ON THE PREMISES IN ACCORDANCE WITH A CERTAIN CONSTRUCTION LOAN
AGREEMENT REFERRED TO HEREIN AND IS A "CONSTRUCTION MORTGAGE" UNDER THE LAW OF
THE COMMONWEALTH OF MASSACHUSETTS. A PHOTOCOPY OF THIS INSTRUMENT MAY BE FILED
AS A FINANCING STATEMENT.
UNDER THE TERMS AND PROVISIONS OF THE NOTE WHICH THIS INSTRUMENT SECURES
AND UNDER THE TERMS AND PROVISIONS OF ANY FUTURE OR FURTHER ADVANCES SECURED
HEREBY, THE INTEREST RATE PAYABLE THEREUNDER MAY BE VARIABLE. THE PURPOSE OF
THIS PARAGRAPH IS TO PROVIDE RECORD NOTICE OF THE RIGHT OF LENDER, ITS
SUCCESSORS AND ASSIGNS, TO INCREASE OR DECREASE THE INTEREST RATE ON ANY
INDEBTEDNESS SECURED HEREBY WHERE THE TERMS AND PROVISIONS OF SUCH INDEBTEDNESS
PROVIDE FOR A VARIABLE INTEREST RATE.
THIS FIRST LEASEHOLD MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND
RENTS AND FINANCING STATEMENT (hereinafter referred to as "Security Deed" or
"Leasehold Mortgage") is made and entered into by AEROVOX INCORPORATED, a
Delaware corporation, as grantor or mortgagor (hereinafter referred to as
"Borrower" or "Sublessee"), Borrower having as a mailing address 000 Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxxxxx 00000 and KEYBANK NATIONAL ASSOCIATION, a
national banking association, as grantee or mortgagee (hereinafter referred to
as "Lender"), Lender having as a business address Xxx Xxxxx Xxxxx, Xxxxxxxx,
Xxxxx 00000-0000.
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RECITALS:
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WHEREAS, Borrower is owner of (i) subleasehold interest in that certain
real property described on Exhibit A attached hereto and made part hereof (the
"Land" as hereinafter defined), and (ii) the Improvements of Borrower located
thereon pursuant to that certain Ground Sublease dated as of January 4, 2000,
between the New Bedford Redevelopment Authority, a body politic and corporate of
the Commonwealth of Massachusetts (the "Authority"), having as a business
address 000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxxxxx 00000, as sublessor and
Borrower as sublessee (as amended from time to time, the "Sublease"); and
WHEREAS, the Authority is owner of a leasehold interest in the Land
pursuant to that certain Ground Lease dated as of December 22, 1999 between the
Authority as lessee and the City of New Bedford, a municipal corporation of the
Commonwealth of Massachusetts (the "City"), having as a business address 000
Xxxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxxxxx 00000, as lessor (as amended from
time to time, the "Lease"); and
WHEREAS, the City is owner of a fee interest in the Land; and
WHEREAS, Borrower has agreed to develop and operate a new plant facility to
be constructed on the Land by Borrower, the facility constructed or being
constructed pursuant to certain Construction Contracts and Plans as defined and
described in a certain Construction Loan Agreement of even date between Lender
and Borrower (the "Loan Agreement"), and the use, maintenance and operation
thereof, and all contracts, agreements, instruments, transactions, rights and
obligations related thereto (the "Project"); and
WHEREAS, pursuant to the terms and conditions of the Loan Agreement, Lender
will make a construction loan to Borrower and extend other credit to Borrower
for the purpose of financing the cost of constructing and operating the Project
and related expenses (the "Construction Loan"), which Construction Loan may have
a maximum principal amount of $4,500,000.00 ("Construction Loan Amount"); and
WHEREAS, the Construction Loan shall have a maturity date of April 30, 2000
("Construction Loan Maturity Date"); and
WHEREAS, in order to provide financing for the Project and to pay the
Construction Loan, the Borrower will issue its Taxable Adjustable Rate Notes,
Series 2000, in the aggregate principal amount of up to Eleven Million Dollars
($11,000,000) (the "Notes") under terms and conditions to be more fully set
forth in a Trust Indenture (the "Indenture"), by and between the Borrower and
The Huntington National Bank, Columbus, Ohio, as Trustee; and
WHEREAS, to enhance the marketability of the Notes, the Borrower has
applied to the Lender for the issuance of a letter of credit (the "Letter of
Credit") in favor of the Trustee in an amount of up to $11,500,000 to secure the
payment of the principal of and accrued interest on the Notes; and
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WHEREAS, the Borrower and the Lender will enter into a Reimbursement
Agreement (the "Reimbursement Agreement") setting forth, among other things, the
Lender's commitment to issue the Letter of Credit and the Borrower's agreement
to reimburse the Bank for any and all payments made by the Bank pursuant to the
Letter of Credit; and
WHEREAS, the Borrower, the Lender and the Trustee will enter into a Note
Pledge Agreement (the "Note Pledge Agreement") as security for the Borrower's
obligations pursuant to the Reimbursement Agreement; and
WHEREAS, execution, delivery and implementation of this Leasehold Mortgage
is required by Lender prior to its funding of the Construction Loan and the
making of disbursements under the Loan Agreement; and
WHEREAS, Xxxxxxxx has duly authorized the execution, delivery and
performance of this Leasehold Mortgage;
NOW, THEREFORE, with reference to the foregoing Recitals, and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, Lender and Borrower
agree as follows:
Xxxxxxxx does hereby give, grant, bargain, sell, transfer, assign, mortgage
and convey unto Xxxxxx, and its successors and assigns, WITH MORTGAGE COVENANTS
AND UPON THE STATUTORY CONDITION, all of the following described property
(hereinafter collectively referred to as the "Property"):
(a) The leasehold estate created by the certain Sublease from the New
Bedford Redevelopment Authority dated January 4, 2000, and all easements
and rights appurtenant thereto, including any and all extensions or
renewals thereof, or substitutions or replacements thereof and all rights,
privileges and benefits now existing or hereafter arising under the
Sublease, including, without limitation all rights of reassignment and all
rights to exercise options to extend or renew the Sublease or to purchase
the fee title to Premises and appurtenances thereto, and all rights to tax
refunds, insurance proceeds, eminent domain awards or payments in lieu
thereof ("the Sublease") covering all that certain tract or parcel of land
located in the New Bedford Industrial Park, Xxxx Xxxxxxxx Boulevard
Extension, New Bedford, Massachusetts, more particularly described in
Exhibit A attached hereto and by this reference made a part hereof,
together with all right, title and interest of Borrower, including any
after-acquired title or reversion, in and to the rights-of-way, streets and
alleys adjacent thereto, and all easements, rights-of-way, licenses,
operating agreements, strips and gores of land, vaults, roads, streets,
ways, alleys, passages, sewers, sewer rights, waters, water courses, water
rights and powers, oil, gas and other minerals, flowers, shrubs, crops,
trees, timber and other emblements now or hereafter located on, servicing
or benefiting the land or under or above same, and all estates, rights,
titles, interests, privileges, liberties, tenements, hereditaments,
easements and appurtenances whatsoever, in any way belonging, relating to
or appertaining to said
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tract or parcel of land or any part thereof, or which hereafter shall in
any way belong, relate or be appurtenant thereto, whether now owned or
hereafter acquired by Borrower and the reversion and reversions, remainder
and remainders, and all the estate, right, title, interest, property,
possession, claim and demand whatsoever at law, as well as in equity, of
the Borrower of, in and to the same (all hereinafter collectively referred
to as the "Land"); and
(b) All buildings, structures, parking areas, landscaping, and other
improvements of every nature now or hereafter situated, erected or placed
on the Land (hereinafter referred to as the "Improvements"), and all
materials intended for construction, reconstruction, alteration and repairs
of the Improvements now or hereafter erected, all of which materials shall
be deemed to be included within the Improvements immediately upon the
delivery thereof to the Land; and
(c) All goods and items purchased with the proceeds of the Note or Notes
(as to all of which Xxxxxx claims a purchase money security interest under
Uniform Commercial Code (S) 9-312(4)), including, but not limited to, all
fixtures, machinery, equipment, furniture, inventory, building supplies,
appliances and other articles of personal property (hereinafter
collectively referred to as the "Personal Property"), including, but not
limited to, all gas and electric fixtures, radiators, heaters, furnaces,
engines and machinery, boilers, ranges, ovens, elevators and motors,
bathtubs, sinks, commodes, basins, pipes, faucets and other plumbing,
heating and air conditioning equipment, mirrors, refrigerating plant,
refrigerators, iceboxes, dishwashers, carpeting, floor coverings,
furniture, light fixtures, signs, lawn equipment, water heaters, and
cooking apparatus and appurtenances, and all other fixtures and equipment
now or hereafter owned by Borrower and located in, on or about, or used or
intended to be used with or in connection with the use, operation, or
enjoyment of the Land or the Improvements, whether installed in such a way
as to become a part thereof or not, including all extensions, additions,
improvements, betterments, renewals and replacements of any of the
foregoing and all the right, title and interest of Borrower in and to any
of the foregoing now owned or hereafter acquired by Borrower, all of which
are hereby declared and shall be deemed to be fixtures and accessions to
the freehold and a part of the Improvements as between the parties hereto
and all persons claiming by, through or under them; and
(d) All right, title and interest of Borrower in and to all policies of
insurance, licenses, franchises, permits, service contracts, maintenance
contracts, property management agreements, equipment leases, tradenames,
trademarks, trade dress, service-marks, logos, goodwill, accounts, chattel
paper and general intangibles as defined in the Uniform Commercial Code as
enacted in the Commonwealth of Massachusetts, which in any way now or
hereafter belong, relate or appertain to the Land, the Improvements or the
Personal Property or any part thereof now owned or hereafter acquired by
Borrower, including, without limitation, all condemnation payments,
insurance proceeds and escrow funds and all other property of Borrower
deposited with Lender or held by Lender pursuant to the Loan Agreement
(hereinafter referred to as the "Intangible Property"); and
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(e) All present and future leases, tenancies, occupancies and licenses,
whether written or oral ("Leases"), of the Land, the Improvements, the
Personal Property and the Intangible Property, or any combination or part
thereof, and all income, rents, issues, royalties, profits, revenues,
security deposits and other benefits of the Land, the Improvements, the
Personal Property and the Intangible Property, from time to time accruing,
all payments under Leases, and all payments on account of oil and gas and
other mineral Leases, working interests, production payments, royalties,
overriding royalties, rents, delay rents, operating interests,
participating interests and other such entitlements, and all the estate,
right, title, interest, property, possession, claim and demand whatsoever
at law, as well as in equity, of Borrower of, in and to the same
(hereinafter collectively referred to as the "Revenues"); and
(f) All rights, privileges and benefits, of whatever character, to which
Borrower may hereafter be entitled pursuant to (S)365 of the Bankruptcy
Code, including, without limitation, all of Borrower's rights to retain its
rights under the Sublease in respect of the Property after rejection of the
Sublease by the Authority or the City, or by any Trustee of the Authority
or the City, and all of Borrower's rights to treat the Sublease as
rejected, and together with any and all other rights, privileges and
benefits, of whatever character, to which Borrower may hereafter be
entitled to remain in possession of the Property pursuant to any agreement
among Borrower, the Authority and the City; and
(g) All the rights, title, interest of Xxxxxxxx in and to all plans and
specifications relating to the Improvements on the Land (hereinafter
collectively referred to as the "Plans"); and
(h) All proceeds, products, substitutions and accessions of the foregoing
of every type; and
(i) All judgments, awards of damages and settlements hereafter made as a
result or in lieu of any taking of the Property or any interest therein or
part thereof under the power of eminent domain, or for any damage (whether
caused by such taking or otherwise) to the Property, or the improvements
thereon or any part thereof, including any award for change of grade of
streets.
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof, to the use, benefit and behoof of Lender and the
successors and assigns of Lender,in accordance with Xxxxxxxx's Sublease of the
Land; and Borrower covenants that Borrower is lawfully seized and possessed of
the Property in accordance with Xxxxxxxx's Sublease of the Land and has good
right to convey the Property and that the conveyances in this Security Deed are
subject to only those matters (hereinafter referred to as the "Permitted
Encumbrances") expressly set forth in Exhibit B attached hereto and by this
---------
reference made a part hereof. Except for the Permitted Encumbrances, Borrower
does warrant and will forever defend the title to the Property against the
claims of all persons whomsoever.
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This Security Deed is intended to constitute: (i) a leasehold mortgage
under the laws of the Commonwealth of Massachusetts, and (ii) a security
agreement and financing statement under the Uniform Commercial Code as enacted
in the Commonwealth of Massachusetts. This Security Deed is also intended to
operate and be construed as an absolute present assignment of the rents, issues
and profits of the Property, Borrower hereby agreeing that Xxxxxx is entitled to
receive the rents, issues and profits of the Property prior to an Event of
Default and without entering upon or taking possession of the Property.
PROVIDED, NEVERTHELESS, that if Borrower or its successors or assigns pays
and performs or causes to be paid and performed the following described
indebtedness and obligations (hereinafter all collectively referred to as the
"Secured Obligations"), then this Security Deed shall be void; otherwise, shall
remain in full force:
(a) The debt evidenced by that certain Commercial Note (hereinafter,
together with any and all renewals, modifications, consolidations and extensions
thereof, referred to as the "Note") of even or recent date with this Security
Deed, made by Borrower to the order of Lender in the principal face amount of
Four Million Five Hundred Thousand and 00/100ths Dollars ($4,500,000.00),
together with interest, prepayment fees and other fees and charges as provided
therein;
(b) The full and prompt payment and performance of all of the provisions,
agreements, covenants and obligations contained in the said Loan Agreement;
(c) The full and prompt payment and performance of all of the provisions,
agreements, covenants and obligations contained in the said Reimbursement
Agreement and said Note Pledge Agreement;
(d) Any and all future advances made by Xxxxxx to Borrower pursuant to the
Note, the Loan Agreement, the Reimbursement Agreement, the Note Pledge
Agreement, this Security Deed, and the Loan Documents as hereinafter defined up
to a maximum principal amount outstanding from time to time (exclusive of
amounts advanced to protect the security) of Sixteen Million and 00/100ths
Dollars ($16,000,000.00) together with interest, in accordance with the
provisions of Paragraph 32 hereof;
(e) The full and prompt payment and performance of all of the provisions,
agreements, covenants and obligations herein contained and contained in any
other agreements, documents or instruments now or hereafter evidencing, securing
or otherwise relating to the indebtedness evidenced by the Note and the
Reimbursement Agreement (the Note, this Security Deed, the Loan Agreement, the
Collateral Assignment of Project Documents, the Reimbursement Agreement, the
Note Pledge Agreement, and such other agreements, documents and instruments,
together with any and all renewals, amendments, extensions and modifications
thereof, are hereinafter collectively referred to as the "Loan Documents"), and
the payment of all other sums therein covenanted to be paid;
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(f) Any and all additional advances made by Xxxxxx to preserve and protect
the Improvements or to protect or preserve the Property or the security interest
created hereby on the Property, or for taxes, assessments or insurance premiums
as hereinafter provided, or for performance of any of Borrower's obligations
hereunder or under the other Loan Documents or for any other purpose provided
herein or in the other Loan Documents (whether or not the original Borrower
remains the owner of the Property at the time of such advances); and
(g) Any and all other indebtedness, however incurred, which may now or
hereafter be due and owing from Borrower to Lender, now existing or hereafter
coming into existence, however and whenever incurred or evidenced, whether
expressed or implied, direct or indirect, absolute or contingent, or due or to
become due, and all renewals, modifications, consolidations and extensions
thereof.
This Security Deed is upon the STATUTORY CONDITION, upon the breach of
which Lender shall have the STATUTORY POWER OF SALE, which is hereby
incorporated herein by reference.
Borrower hereby further covenants and agrees with Xxxxxx as follows:
1. Payment and Performance of Secured Obligations. Borrower shall
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promptly pay the Secured Obligations when due, and fully and promptly perform
all of the provisions, agreements, covenants and obligations of the Secured
Obligations.
2. Funds for Impositions. Subject to Xxxxxx's option under Paragraphs 3
---------------------
and 4 hereof, Borrower shall pay to Lender on the days that monthly installments
of interest are payable under the Note, until the Note is paid in full, a sum
(hereinafter referred to as the "Funds") equal to one-twelfth (1/12) of the
following items (hereinafter collectively referred to as the "Impositions"): (a)
the yearly water and sewer bills, real estate taxes, ad valorem taxes, personal
property taxes, assessments, betterments, and all governmental charges of every
name and restriction which may be levied on the Property, and (b) the yearly
premium installments for the insurance covering the Property and required by
Lender pursuant to Paragraph 4 hereof. The Impositions shall be estimated
initially and from time to time by Xxxxxx on the basis of assessments and bills
and estimates thereof. The Funds shall be held by Xxxxxx, free of interest and
free of any liens or claims on the part of creditors of Borrower and as part of
the security for the Secured Obligations. The Funds shall not be, nor be deemed
to be, trust funds but may be commingled with the general funds of Lender.
Lender shall apply the Funds to pay the Impositions with respect to which the
Funds were paid to the extent of the Funds then held by Xxxxxx and provided
Borrower has delivered to Lender the assessments or bills therefor. Lender shall
make no charge for so holding and applying the Funds or for verifying and
compiling said assessments and bills. The Funds are pledged as additional
security for the Secured Obligations, and may be applied, at Xxxxxx's option and
without notice to Borrower, to the payment of the Secured Obligations upon any
Event of Default hereunder. If at any time the amount of the Funds held by
Lender shall be less than the amount deemed necessary by Lender to pay
Impositions as such become due, Borrower shall pay to Lender any amount
necessary to make up
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the deficiency within five (5) days after notice from Lender to Borrower
requesting payment thereof. Upon performance and payment in full of the Secured
Obligations, Lender shall promptly refund to Borrower any Funds held by Lender.
3. Impositions, Liens and Charges. Borrower shall pay all Impositions
------------------------------
and other charges, if any, attributable to the Property, and at Xxxxxx's option,
shall pay in the manner provided under Paragraph 2 hereof. Borrower shall
furnish to Lender all bills and notices of amounts due under this Paragraph 3 as
soon as received, and in the event Borrower shall make payment directly,
Borrower shall furnish to Lender receipts evidencing such payments at least five
(5) days prior to the dates on which such payments are due. Borrower shall
promptly discharge (by bonding, payment or otherwise) any lien filed against the
Property and will keep and maintain the Property free from the claims of all
persons supplying labor or materials to the Property.
4. Property and Other Insurance.
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(a) Borrower, at its expense, shall procure and maintain for the benefit
of Borrower and Lender, insurance policies issued by such insurance companies,
in such amounts, in such form and substance, and with such coverages,
endorsements, deductibles, and expiration dates as are acceptable to Lender,
providing the following types of insurance covering the Property:
(i) "All Risks" property insurance (including broad form flood,
broad form earthquake and comprehensive boiler and machinery coverages) on the
Improve-ments and Personal Property in an amount not less than one hundred
percent (100%) of the full replacement cost of the Improvements and the Personal
Property determined annually by an insurer or qualified appraiser selected and
paid for by Borrower and acceptable to Lender, with deductibles not to exceed
$25,000 for any one occurrence, with a replacement cost coverage endorsement, an
agreed amount endorsement, and, if requested by Xxxxxx, a contingent liability
from operation of building laws endorsement, a demolition cost endorsement and
an increased cost of construction endorsement in such amounts as Lender may
require. Full replacement cost as used herein means the cost of replacing the
Improvements (exclusive of the cost of excavations, foundations and footings
below the lowest basement floor) and the Personal Property without deduction for
physical depreciation thereof;
(ii) During the course of reconstruction or significant repair of any
Improvements on the Land, the insurance required by clause (i) above shall be
written on a builders risk, completed value, non-reporting form, meeting all of
the terms required by clause (i) above covering the total value of work
performed, materials, equipment, machinery and supplies furnished, existing
structures, and temporary structures being erected on or near the Land,
including coverage against collapse and damage during transit or while being
stored off-site, and containing a soft costs (including loss of rents) coverage
endorsement and a permission to occupy endorsement,
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(iii) Flood insurance if at any time the Improvements are located in
any federally designated "special hazard area" (including any area having
special flood, mudslide
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and/or flood-related erosion hazards, and shown on a Flood Hazard Boundary Map
or a Flood Insurance Rate Map) and if the broad form flood coverage required by
clause (i) above is not available, in an amount equal to the full replacement
cost or the maximum amount then available under the Massachusetts Flood
Insurance Program;
(iv) Rent loss insurance in an amount sufficient to recover at least
(1) the total estimated gross receipts from all sources of income for the
Property, including, without limitation, rental income, for a twelve month
period, plus (2) Impositions for a twelve month period to the extent not
included in (1) above;
(v) Commercial general liability insurance against claims for
personal injury (to include, without limitation, bodily injury and personal and
advertising injury) and property damage liability, all on an occurrence basis,
if available, with such coverages as Lender may request (including, without
limitation, contractual liability coverage, completed operations coverage for a
period of two (2) years following completion of construction of any Improvements
on the Land, and coverages equivalent to an ISO broad form endorsement), with a
general aggregate limit of not less than $1,000,000, a completed operations
aggregate limit of not less than $1,000,000, and a combined single "per
occurrence" limit of not less than $1,000,000 for bodily injury, property damage
and medical payments;
(vi) During the course of construction or repair of any Improvements
on the Land, owner's contingent or protective liability insurance covering
claims not covered by or under the terms or provisions of the insurance required
by clause (v) above;
(vii) Employers liability insurance;
(viii) Umbrella liability insurance with limits of not less than
$1,000,000 to be in excess of the limits of the insurance required by clauses
(v), (vi) and (vii) above, with coverage at least as broad as the primary
coverages of the insurance required by clauses (v), (vi) and (vii) above, with
any excess liability insurance to be at least as broad as the coverages of the
lead umbrella policy. All such policies shall be endorsed to provide defense
coverage obligations;
(ix) Workers' compensation insurance for all employees of Xxxxxxxx
engaged on or with respect to the Land or Improvements; and
(x) Such other insurance in such form and in such amounts as may
from time to time be required by Xxxxxx against other insurable hazards and
casualties which at the time are commonly insured against in the case of
properties of similar character and location to the Land and the Improvements.
Borrower shall pay all premiums on insurance policies, and at Lender's
option, shall pay in the manner provided under Paragraph 2 hereof. The insurance
policies provided for in clauses (v), (vi) and above shall name Lender as an
additional insured and shall contain a cross liability/severability endorsement.
The insurance policies provided for in clauses (i), (ii), (iii)
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and (iv) above shall name Xxxxxx as mortgagee and loss payee, shall be first
payable in case of loss to Xxxxxx, and shall contain mortgage clauses and
lender's loss payable endorsements in form and substance acceptable to Lender.
Borrower shall deliver duplicate originals or certified copies of all such
policies to Lender, and Borrower shall promptly furnish to Lender all renewal
notices and all receipts of paid premiums. At least thirty (30) days prior to
the expiration date of the policies, Borrower shall deliver to Lender duplicate
originals or certified copies of renewal policies in form satisfactory to Lender
(b) All policies of insurance required by this Security Deed shall contain
clauses or endorsements to the effect that (i) no act or omission of either
Borrower or anyone acting for Borrower (including, without limitation, any
representations made by Borrower in the procurement of such insurance), which
might otherwise result in a forfeiture of such insurance or any part thereof, no
occupancy or use of the Property for purposes more hazardous than permitted by
the terms of the policy, and no foreclosure or any other change in title to the
Property or any part thereof, shall affect the validity or enforceability or
such insurance insofar as Lender is concerned, (ii) the insurer waives any right
of setoff, counterclaim, subrogation, or any deduction in respect of any
liability of Borrower and Lender, (iii) such insurance is primary and without
right of contribution from any other insurance which may be available, (iv) such
policies shall not be modified, cancelled or terminated without the insurer
thereunder giving at least thirty (30) days prior written notice to Lender by
certified or registered mail, and (v) that Lender shall not be liable for any
premiums thereon or subject to any assessments thereunder, and shall in all
events be in amounts sufficient to avoid any coinsurance liability.
(c) With the prior consent of Lender, which consent is not to be
unreasonably withheld, the insurance required by this Security Deed may be
effected through a blanket policy or policies covering additional locations and
property of Borrower not included in the Property, provided that such blanket
policy or policies comply with all of the terms and provisions of this Paragraph
and contain endorsements or clauses assuring that any claim for recovery will
not be less than that which a separate policy would provide, including, without
limitation, a priority claim endorsement in the case of property insurance and
an aggregate limits of insurance per location endorsement in the case of
liability insurance.
(d) All policies of insurance required by this Security Deed shall be
issued by companies licensed to do business in the state where the policy is
issued and also in the Commonwealth of Massachusetts and having a rating in
Best's Key Rating Guide of at least "A" and a financial size category of at
least "VIII".
(e) Borrower shall not carry separate insurance, concurrent in kind or
form or contributing in the event of loss, with any insurance required under
this Security Deed unless such insurance complies with the terms and provisions
of this Paragraph.
(f) In the event of any loss or damage to the Property, Borrower shall
give immediate written notice to the insurance carrier and Lender. Borrower
hereby irrevocably authorizes and empowers Xxxxxx, at Xxxxxx's option and in
Xxxxxx's sole discretion, as attorney in fact for Xxxxxxxx, to make proof of
such loss, to adjust and compromise any claim under insurance
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policies, to appear in and prosecute any action arising from such insurance
policies, to collect and receive insurance proceeds, and to deduct therefrom
Lender's expenses incurred in the collection of such proceeds. If Borrower is
not then in default under the Loan Documents, Xxxxxx will agree to the use of
insurance proceeds for reconstruction or repair of the Property, under Xxxxxx's
usual construction loan procedures. Otherwise, Lender is authorized to apply the
balance of such proceeds to the payment of the Secured Obligations whether or
not then due. If Lender shall require or if Borrower desires to proceed with
(and is not otherwise in default) the reconstruction or repair of the Property,
to hold the balance of such proceeds to be used to pay Impositions and the
Secured Obligations as they become due during the course of reconstruction or
repair of the Property and to reimburse Borrower, in accordance with such terms
and conditions as Lender may prescribe, for the costs of reconstruction or
repair of the Property, and upon completion of such reconstruction or repair to
apply any excess to the payment of the Secured Obligations. If under Paragraph
22 hereof the Property is sold or the Property is acquired by Lender, all right,
title and interest of Borrower in and to any insurance policies and unearned
premiums thereon and in and to the proceeds thereof resulting from loss or
damage to the Property prior to the sale or acquisition shall pass to Lender or
any other successor in interest to Borrower or purchaser or grantor of the
Property but receipt of any insurance proceeds and any disposition of the same
by Lender shall not constitute a waiver of any rights of Lender, statutory or
otherwise, and specifically shall not constitute a waiver of the right of
foreclosure by Lender in the event of Default or failure of performance by
Borrower of any of the Obligations.
5. Preservation and Maintenance. Borrower (a) shall not permit or commit
----------------------------
waste, impairment, or deterioration of the Property or abandon the Property, (b)
shall restore or repair promptly and in a good and workmanlike manner all or any
part of the Property in the event of any damage, injury or loss thereto, to the
equivalent of its condition prior to such damage, injury or loss, or such other
condition as Lender may approve in writing, provided that Lender shall release
net insurance proceeds, to the extent actually received by Lender, to Borrower
in accordance with the construction disbursement procedures specified in the
Loan Agreement (provided, however, the insufficiency of such proceeds shall not
relieve Borrower of its obligations to restore hereunder), (c) shall keep the
Property, including the Improvements and the Personal Property, in good order,
repair and tenantable condition and shall replace fixtures, equipment, machinery
and appliances on the Property when necessary to keep such items in good order,
repair, and tenantable condition, and (d) shall comply with all laws,
ordinances, regulations and requirements of any governmental body applicable to
the Property. Borrower covenants and agrees to give Xxxxxx prompt notice of any
non-compliance with such laws, ordinances, regulations or requirements and of
any notice of non-compliance therewith which it receives or any threatened or
pending proceedings in respect thereto or with respect to the Property
(including, without limitation, changes in zoning). Neither Borrower nor any
tenant or other person shall remove, demolish or alter any Improvements now
existing or hereafter erected on the Property or any Personal Property in or on
the Property except when incident to the replacement of Personal Property with
items of like kind. Borrower further covenants and agrees that, without the
prior written consent of Lender herein, no part of the Property shall be
declared, or become the subject of, a condominium under the Maine Condominium
Act, as it may be amended or supplemented, or become the subject of any
covenants or restrictions, or any planned unit development, or any other type of
development that would control or restrict the uses to
12
which the Land and Improvements may be put or the scheme or arrangement or its
development or the design, location or character of its buildings or
improvements, or which would impose Obligations or assessments of any type upon
any owners or tenants of the Property, or upon any other parties who may use or
enjoy the Property.
6. Transfers. Borrower will not, directly or indirectly, voluntarily or
---------
involuntarily, without the prior written consent of Lender in each instance: (a)
sell, convey, assign, transfer, lease, option, mortgage, pledge, hypothecate or
dispose of the Property, or any part thereof or interest therein, except as
expressly permitted by the terms of this Security Deed; or (b) create or suffer
to be created or to exist any lien, encumbrance, security interest, mortgage,
pledge, restriction, attachment or other charge of any kind upon the Property,
or any part thereof or interest therein, except for Permitted Encumbrances.
7. Hazardous Materials Warranties and Indemnification.
--------------------------------------------------
(a) Definitions. The following definitions shall apply for purposes of
-----------
this Paragraph 7:
(i) "Environmental Laws" shall mean and include each and every
federal, state or local statute, regulation or ordinance or any judicial or
administrative decree or decision, whether now existing or hereafter enacted,
promulgated or issued, with respect to any Hazardous Materials (as hereinafter
defined), drinking water, groundwater, wetlands, landfills, open dumps, storage
tanks, underground storage tanks, solid waste, waste water, storm water run-off,
waste emissions or xxxxx. Without limiting the generality of the foregoing, the
term shall encompass each of the following statutes and regulations promulgated
thereunder as well as any amendments and successors to such statutes and
regulations, as may be enacted and promulgated from time to time: (i) the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(codified in scattered sections of 26 U.S.C., 33 U.S.C., 42 U.S.C. and 42
U.S.C.(S)9601 et seq.); (ii) the Resource Conservation and Recovery Act of 1976
-- ---
(42 U.S.C.(S)6901 et seq.); (iii) Hazardous Materials Transportation Act (49
-- ---
U.S. C.(S)1801 et seq.); (iv) the Toxic Substances Control Act (15 U.S.C.(S)2061
-- ---
et seq.); (v) the Clean Water Act (33 U.S.C.(S)1251 et seq.), (vi) the Clean Air
-- --- -- ---
Act (42 U.S.C.(S)7401 et seq.); (vii) the Safe Drinking Water Act (21
-- ---
U.S.C.(S)349 42 U.S.C.(S)201 and (S)300f et seq.);; (viii) the Superfund
-- ---
Amendment and Reauthorization Act of 1986 (codified in scattered sections of 10
U.S.C., 29 U.S.C., 33 U.S.C. and 42 U.S.C.); (ix) Title III of the Superfund
Amendment and Reauthorization Act (40 U.S. C.(S)1101 et seq.); (x) the
-- ---
Massachusetts Oil and Hazardous Materials Release Prevention and Response Act,
M.G.L. c. 21E; and (xi) the Massachusetts Hazardous Waste Management Act, M.G.L.
c. 21C.
(ii) "Hazardous Materials" shall mean each and every element,
compound, chemical mixture, contaminant, pollutant, material, waste or other
substance which is defined, determined or identified as hazardous or toxic under
any Environmental Law. Without limiting the generality of the foregoing, the
term shall mean and include:
(A) "hazardous substances" as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Superfund
13
Amendment and Reauthorization Act of 1986, or Title III of the Superfund
Amendment and Reauthorization Act, each as amended, and regulations promulgated
thereunder;
(B) "hazardous waste" as defined in the Resource Conservation
and Recovery Act of 1976, as amended, and regulations promulgated thereunder;
(C) "hazardous materials" as defined in the Hazardous Materials
Transportation Act, as amended, and regulations promulgated thereunder;
(D) "chemical substance or mixture" as defined in the Toxic
Substances Control Act, as amended, and regulations promulgated thereunder;
(E) "hazardous matter" as defined in the Hazardous Matter
Control Law, as amended, and regulations promulgated thereunder; and
(F) "hazardous waste" as defined in the Maine Hazardous Waste,
Septage and Solid Waste Management Act, as amended, and regulations promulgated
thereunder.
(iii) "Indemnified Parties" shall mean Xxxxxx, Xxxxxx's parent,
subsidiaries and affiliates, each of their respective shareholders, directors,
officers, employees and agents, and the successors and assigns of any of them,
and "Indemnified Party" shall mean any one of the Indemnified Parties.
(iv) "Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, storing, escaping, leaching,
dumping, discarding, burying, abandoning, or disposing into the environment.
(v) "Threat of Release" shall mean a substantial likelihood of a
Release which requires action to prevent or mitigate damage to the environment
which may result from such Release.
(b) Environmental Representations and Warranties of Borrower. Borrower
--------------------------------------------------------
represents and warrants to Lender as follows except as has been disclosed to
Lender in a certain Environmental Site Assessment dated August 28, 1998, done by
Sitec Environmental, Inc. for the City, and in a certain Supplemental Subsurface
Investigation dated July 20, 1999, done by Xxxxxxx Xxxxxx Vrustlin, Inc. for the
City:
(i) To the best of Borrower's knowledge, no condition, activity or
conduct exists on or in connection with the Property which constitutes a
violation of any Environmental Law.
(ii) To the best of Xxxxxxxx's knowledge, there has been no Release
or Threat of Release of any Hazardous Materials on, upon or into the Property,
nor, to the best of Xxxxxxxx's knowledge, has there been any such Release or
Threat of Release of any Hazardous
14
Materials on, upon or into any real property in the vicinity of the Property
which, through soil or groundwater migration, could reasonably be expected to
come to be located on the Property.
(iii) There are no existing or closed underground storage tanks on
the Property.
(iv) None of the following are or will be located in, on, under or
constitute a part of the Property: asbestos or asbestos-containing material in
any form or condition; urea formaldehyde insulation, transformers or other
equipment which contain dicletric fluid containing polychlorinated biphenyls; or
leaded paint.
(v) There are no existing or closed sanitary landfills, solid waste
disposal sites, or hazardous waste treatment, storage or disposal facilities on
or affecting the Property.
(vi) No notice has been issued to Borrower by any agency, authority,
or unit of government that Borrower has been identified as a potentially
responsible party under any Environmental Law.
(vii) There exists no investigation, action, proceeding, or claim by
any agency, authority, or unit of government or by any third party which could
result in any liability, penalty, sanction, or judgment under any Environmental
Law with respect to any condition, use or operation of the Property or any other
real property owned. leased or operated by Borrower.
(viii) There has been no claim by any party that any use, operation,
or condition of the Property has caused any nuisance or any other liability or
adverse condition on any other property
(ix) There is presently no condition on the Land or Improvements
that would constitute any form of pollution, contamination, discharge, spillage,
uncontrolled loss, seepage or filtration of hazardous materials.
(c) Environmental Covenants of Borrower. The Borrower covenants and agrees
-----------------------------------
with Lender that Borrower shall
(i) comply with all Environmental Laws;
(ii) not store (except in compliance with all Environmental Laws
pertaining thereto), dispose of, Release or allow the Release of any Hazardous
Materials on the Property;
(iii) neither directly nor indirectly transport or arrange for the
transport of any Hazardous Materials (except in compliance with all
Environmental Laws pertaining thereto); and
(iv) upon the request of Xxxxxx, take all such action (including,
without limitation, the conducting of environmental assessments at the sole
expense of the Borrower in accordance with subparagraph (e) hereof) to confirm
that no Hazardous Materials are or ever were stored, Released or disposed of on
the Property.
15
(d) Environmental Indemnity. Borrower covenants and agrees, at Xxxxxxxx's
-----------------------
sole cost and expense, to indemnify, defend (at trial and appellate levels, and
with attorneys, consultants and experts acceptable to Lender) and hold each
Indemnified Party harmless from and against any and all liens, damages, losses,
liabilities, obligations, settlement payments, penalties, assessments,
citations, directives, claims, litigation, demands, defenses, judgments, suits,
proceedings, costs, disbursements or expenses of any kind or of any nature
whatsoever (including, without limitation, attorneys', consultants' and experts'
fees and disbursements incurred in investigating, defending, settling or
prosecuting any claim, litigation or proceeding) which may at any time be
imposed upon, incurred by or asserted or awarded against such Indemnified Party
or the Property and arising directly or indirectly from or out of: (A) the
Release or Threat of Release of any Hazardous Materials on, in, under or
affecting all or any portion of the Property or any surrounding areas,
regardless of whether or not caused by or within the control of Borrower; (B)
the violation of any Environmental Laws relating to or affecting the Property or
the Borrower, whether or not caused by or within the control of Borrower; (C)
the failure of Borrower to comply fully with the terms and conditions of this
Paragraph; (D) the violation of any Environmental Laws in connection with other
real property of Borrower which gives or may give rise to any rights whatsoever
in any party with respect to the Property by virtue of any Environmental Laws;
(E) the breach of any representation or warranty contained in this Paragraph or
(F) the enforcement of this Paragraph, including, without limitation (i) the
costs of assessment, containment and/or removal of any and all Hazardous
Materials from all or any portion of the Property or any surrounding areas, (ii)
the costs of any actions taken in response to a Release or Threat of Release of
any Hazardous Materials on, in, under or affecting all or any portion of the
Property or any surrounding areas to prevent or minimize such Release or Threat
of Release so that it does not migrate or otherwise cause or threaten danger to
present or future public health, safety, welfare or the environment, and (iii)
costs incurred to comply with the Environmental Laws in connection with all or
any portion of the Property or any surrounding areas. Xxxxxx's rights under this
Paragraph shall be in addition to all other rights of Lender under this Security
Deed, the Note, the Construction/Term Loan Agreement, and the other Loan
Documents and payments by Borrower under this Paragraph shall not reduce
Borrower's obligations and liabilities under any of the Loan Documents.
(e) Notice to Lender. If Borrower receives any notice or obtains knowledge
----------------
of (i) any potential or known Release or Threat of Release of any Hazardous
Materials at or from the Property, notification of which must be given to any
governmental agency under any Environmental Law, or notification of which has,
in fact, been given to any governmental agency, or (ii) any complaint, order,
citation or notice with regard to air emissions, water discharges, or any other
environmental health or safety matter affecting Borrower or the Property (an
"Environmental Complaint") from any person or entity (including, without
limitation, the Environmental Protection Agency), then Borrower shall
immediately notify Lender orally and in writing of said Release or Threat of
Release or Environmental Complaint. Upon such notification, Lender may, at its
election without regard to whether an Event of Default has occurred, obtain one
or more environmental assessments of the Property prepared by a geohydrologist,
an independent engineer or other qualified consultant or expert approved by the
Lender which evaluates or confirms (i) whether any Hazardous Materials are
present in the soil
16
or water at or adjacent to the Property, and (ii) whether the use and operation
of the Property comply with all Environmental Laws. Environmental assessments
may include detailed visual inspections of the Property, including, without
limitation, any and all storage areas, storage tanks, drains, dry xxxxx and
leaching areas, and the taking of soil samples, surface water samples and ground
water samples, as well as such other investigations or analyses as are necessary
or appropriate for a complete determination of the compliance of the Property
and the use and operation thereof with all applicable Environmental Laws. All
such environmental assessments shall be at the cost and expense of the Borrower.
(f) Survival, Assignability, and Transferability.
--------------------------------------------
(i) The warranties, representations and indemnity set forth in
subparagraphs (b) and (d) of this Paragraph shall survive the payment and
performance of the Secured Obligations and any exercise by Lender of any
remedies under this Security Deed including, without limitation, the power of
sale, or any other remedy in the nature of foreclosure, and shall not merge with
any deed given by Borrower to Lender in lieu of foreclosure or any deed under a
power of sale.
(ii) It is agreed and intended by Xxxxxxxx and Lender that the
warranties, representations, and indemnity set forth above in subparagraphs (b)
and (d) of this Paragraph may be assigned or otherwise transferred by Lender to
its successors and assigns and to any subsequent purchasers of all or any
portion of the Property by, through or under Lender, without notice to Borrower
and without any further consent of Borrower. To the extent consent or any such
assignment or transfer is required by law, advance consent to any such
assignment or transfer is hereby given by Borrower in order to maximize the
extent and effect of the warranties, representations, and indemnity given hereby
8. Use of Property. Unless required by applicable law or unless Lender
---------------
has otherwise agreed in writing, Borrower shall not allow changes in the nature
of the occupancy or use for which the Property was intended at the time this
Security Deed was executed. Borrower shall not initiate or acquiesce in a change
in the zoning classification of the Property or subject the Property to
restrictive or negative covenants without Xxxxxx's written consent. Borrower
shall comply with, observe and perform all zoning and other laws affecting the
Property, all restrictive covenants affecting the Property, and all licenses and
permits affecting the Property.
9. Protection of Lender's Security. If Borrower fails to perform the
-------------------------------
covenants and agreements contained in this Security Deed, or if any action or
proceeding is commenced which affects the Property or title thereto or the
interest of Lender therein, including, but not limited to, eminent domain,
insolvency, code enforcement or arrangements or proceedings involving a bankrupt
or decedent, then Lender at Lender's option may make such appearances, disburse
such sums and take such action as Lender deems necessary to protect Xxxxxx's
interest, including, but not limited to, disbursement of attorneys' fees,
payment, contest or compromise of any lien or security interest which is prior
to the lien or security interest of this Security Deed, and entry upon the
Property to make repairs. At its option, and without limitation, Lender may pay
any Impositions, or provide for the maintenance and preservation of the
Property. Any amounts
17
disbursed by Xxxxxx pursuant to this Paragraph 9, with interest thereon, shall
become a portion of the Secured Obligations. Unless Borrower and Lender agree to
other terms of payment, such amounts shall be payable upon notice from Lender to
Borrower requesting payment thereof and shall bear interest from the date of
disbursement at the Default Rate as that term is defined in the Note unless
collection from Borrower of interest at such rate would be contrary to
applicable law, in which event such amounts shall bear interest at the highest
rate which may be collected from Borrower under applicable law. Borrower shall
have the right to prepay such amounts in whole or in part at any time. Nothing
contained in this Paragraph shall require Lender to incur any expense or do any
act.
10. Inspection. Lender may, at Borrower's expense, make or cause to be
----------
made reasonable entries upon and inspections of the Property during normal
business hours, or at any other time when necessary to protect or preserve the
Property.
11. Books and Records.
-----------------
(a) Borrower shall keep and maintain at all times at Xxxxxxxx's
address stated in this Security Deed, or such other place as Lender may approve
in writing, complete, proper and accurate records and books of account in which
full, true and correct entries shall be made in accordance with generally
accepted accounting principles reflecting the results of the operation of the
Property, and copies of all written contracts, leases and other instruments
which affect the Property. Such records, books of account, contracts, leases and
other instruments shall be subject to examination, inspection and copying by
Lender at any reasonable time by Xxxxxx and at Borrower's expense.
(b) Upon request of Xxxxxx in writing, Borrower shall promptly
provide Lender with all documents reasonably requested by Xxxxxx prepared in the
form and the manner called for in such request and as may reasonably relate to
the Property or the use, maintenance, operation or condition thereof, or the
financial condition of Borrower or any party obligated on the Note or under any
guaranty, including, without limitation, all leases or leasehold interests
granted to or by Borrower, rent rolls and tenant lists, rent and damage deposit
ledgers, operating statements, profit and loss statements and balance sheets,
personal financial statements of Borrower or income tax returns (including
quarterly returns), any or all of which documents shall be audited or certified
as true and accurate by a certified public accountant, if requested by Xxxxxx,
and shall cover such period or periods as may be specified by Lender
12. Condemnation. If all or substantially all of the Property shall be
------------
damaged or taken through condemnation (which term, when used in this Security
Deed, shall include any damage or taking by any governmental authority,
quasi-governmental authority, any party having the power of condemnation, or any
transfer by private sale in lieu thereof), either temporarily or permanently,
then the entire Secured Obligations shall, at the option of Lender, become
immediately due and payable. Xxxxxxxx authorizes Xxxxxx, at Xxxxxx's option, as
attorney in fact for Xxxxxxxx, to commence, appear in and prosecute, in Xxxxxx's
or Xxxxxxxx's name, any action or proceeding relating to any condemnation or
other taking of the Property and to settle or compromise any claim in connection
with such condemnation or other taking. The proceeds of
18
any award or claim for damages, direct or consequential, in connection with any
condemnation, or other taking of the Property, or part thereof, or for
conveyances in lieu of condemnation, are hereby assigned and shall be paid to
Lender. Borrower authorizes Lender to apply such awards, proceeds or damages,
after the deduction of Xxxxxx's expenses incurred in the collection of such
amounts, and at Lender's option, to restoration or repair of the Property or to
payment of the Secured Obligations, whether or not then due, with the balance,
if any, to Borrower. Xxxxxxxx agrees to execute such further assignment of any
awards, proceeds, damages or claims arising in connection with such condemnation
or injury that Lender may require. For the purposes of this Paragraph,
"substantially all of the Property" shall mean a taking of or damage to less
than the entire Property through condemnation, which in the good faith judgment
of Xxxxxx, renders the Property remaining after such taking or damage unsuitable
for restoration for the use intended to be made of the Property or substantially
the same value, condition, character or general utility as the then use which
existed on the Property before such condemnation.
In the event that Borrower is required by the terms of its Sublease of the
Property to repair or restore the Property, following a partial taking, and if
Borrower is not then otherwise in default of the Secured Obligations, then
Xxxxxx agrees to release the proceeds of such partial taking, under its usual
construction loan disbursement procedures, with Borrower providing any necessary
equity injection required in the judgment of Lender to assure proper completion
of such repair or restoration, PROVIDED, HOWEVER, that prior to release of any
such proceeds, Borrower must pay down the Secured Obligations to the extent
required to maintain compliance with an 85% loan-to-value ratio, based upon
appraisals preceding the following completion of the work.
13. Borrower and Lien Not Released. From time to time, without affecting
------------------------------
the obligation of Borrower or Borrower's successors or assigns to pay or perform
the Secured Obligations and to observe the covenants of Borrower contained in
this Security Deed and the other Loan Documents, and without affecting the
guaranty of any person, corporation, partnership or other entity for payment or
performance of the Secured Obligations, and without affecting the lien or
priority of lien of this Security Deed on the Property, Lender may, at Lender's
option, without giving notice to or obtaining the consent of Borrower,
Xxxxxxxx's successors or assigns or of any guarantor, and without liability on
Lender's part, grant extensions or postponements of the time for payment or
performance of the Secured Obligations or any part thereof, release anyone
liable on any of the Secured Obligations, accept a renewal note or notes
therefor, release from this Security Deed any part of the Property, take or
release other or additional security, re-convey any part of the Property,
consent to any map or plat or subdivision of the Property, consent to the
granting of any easement, join in any extension or subordination agreement and
agree in writing with Borrower to modify the rate of interest or terms and time
of payment or period of amortization of the Note or change the amount of the
monthly installments payable thereunder. Borrower shall pay Lender a reasonable
service charge, together with such title insurance premiums and attorneys' fees
as may be incurred, at Lender's option, for any such action if taken at
Borrower's request.
14. Forbearance Not Waiver. Any forbearance by Xxxxxx in exercising any
----------------------
right or remedy hereunder, or otherwise afforded by applicable law, shall not be
a waiver of or preclude
19
the exercise of any right or remedy hereunder. The procurement of insurance or
the payment of taxes or other liens or charges by Lender shall not be a waiver
of Xxxxxx's right to accelerate the maturity of the Secured Obligations or to
exercise any remedy in connection with the Secured Obligations. Xxxxxx's receipt
of any awards, proceeds or damages under Paragraphs 4 and 12 hereof shall not
operate to cure or waive Borrower's default in payment or performance of the
Secured Obligations.
15. Estoppel Certificates. Borrower shall within ten (10) days of a
---------------------
written request from Xxxxxx xxxxxxx Lender with a written statement, duly
acknowledged, setting forth the amount of the Secured Obligations and any right
of set-off, counterclaim or other defense which may exist or be claimed by
Borrower against the Secured Obligations and the obligations of Borrower under
this Security Deed.
16. Security Agreement. Insofar as any item of property included in the
------------------
Property which is or might be deemed to be "personal property" is concerned,
this Security Deed is hereby made and declared to be a security agreement,
granting a security interest in and to each and every item of such property
included in the Property (hereinafter collectively referred to as the
"Collateral"), in compliance with the provisions of the Uniform Commercial Code
as enacted in the Commonwealth of Massachusetts. A financing statement or
statements reciting this Security Deed to be a security agreement, covering all
of the Collateral, shall be executed by Borrower and Lender and appropriately
filed. The remedies for any violation of the covenants, terms and conditions of
the security agreement herein contained shall be (i) as prescribed herein, or
(ii) as prescribed by general law, or (iii) as prescribed by the specific
statutory consequences now or hereafter enacted and specified in said Uniform
Commercial Code, all at Lender's sole election. Borrower and Xxxxxx agree that
the filing of such financing statement(s) in the records normally having to do
with personal property shall never be construed as in any wise derogating from
or impairing this declaration and hereby stated intention of Borrower and Lender
that everything used in connection with the production of income from the
Property and/or adapted for use therein and/or which is described or reflected
in this Security Deed, is, and at all times and for all purposes and in all
proceedings both legal or equitable shall be, regarded as part of the real
estate irrespective of whether (i) any such item is physically attached to the
Land or the Improvements, (ii) serial numbers are used for the better
identification of certain items capable of being thus identified in a recital
contained herein, or (iii) any such item is referred to or reflected in any such
financing statement(s) so filed at any time. Similarly, the mention in any such
financing statement(s) of the rights in and to the proceeds of any hazard
insurance policy, or any award in eminent domain proceedings for a taking or for
loss of value, or Xxxxxxxx's interest as lessor in any present or future lease
or rights to income growing out of the use and/or occupancy of the Property,
whether pursuant to lease or otherwise, shall never be construed as in any wise
altering any of the rights of Lender as determined by this instrument or
impugning the priority of Xxxxxx's lien granted hereby or by any other recorded
document, but such mention in such financing statement(s) is declared to be for
the protection of Lender in the event any court shall at any time hold, with
respect to any such matter, that notice of Xxxxxx's priority of interest, to be
effective against a particular class of persons, must be filed in the records of
the Uniform Commercial Code kept with (a) the Secretary of State of the
Commonwealth of Massachusetts, (b) the Bristol County Registry of Deeds, and (c)
the New Bedford City Clerk's Office. Borrower warrants that
20
(i) Borrower's (that is, "Debtor's") name, identity or organizational structure
and residence or principal place of business are as set forth in Exhibit C
---------
attached hereto and by this reference made a part hereof, (ii) Borrower (that
is, "Debtor") has been using or operating under said name, identity or
organizational structure without change for the time period set forth in Exhibit
-------
C attached hereto and by this reference made a part hereof, and (iii) the
-
location of all collateral constituting fixtures is upon the Land. Borrower
covenants and agrees that Xxxxxxxx will furnish Lender with notice of any change
in name, identity, organizational structure, residence or principal place of
business within thirty (30) days of the effective date of any such change and
Borrower will promptly execute any financing statements or other instruments
deemed necessary by Xxxxxx to prevent any filed financing statement from
becoming misleading or losing its perfected status. The information contained in
this Paragraph is provided in order that this Security Deed shall comply with
the requirements of the Uniform Commercial Code, as enacted in the Commonwealth
of Massachusetts, for instruments to be filed as financing statements. The names
of the "Debtor" and the "Secured Party", the identity or organizational
structure and residence or principal place of business of "Debtor", and the time
period for which "Debtor" has been using or operating under said name and
identity or organizational structure without change, are as set forth in
Schedule 1 of Exhibit C attached hereto and by this reference made a part
---------
hereof, the mailing address of the "Secured Party" from which information
concerning the security interest may be obtained, and the mailing address of
"Debtor", are as set forth in Schedule 2 of said Exhibit C attached hereto; and
---------
a statement indicating the types, or describing the items, of collateral is set
forth in this Security Deed.
17. Assignment of Leases and Revenues.
---------------------------------
(a) As part of the consideration for the Secured Obligations, Xxxxxxxx has
absolutely and unconditionally assigned and transferred to Lender all of
Xxxxxxxx's right, title and interest in and to the Leases and the Revenues,
including those now due, past due or to become due by virtue of any Sublease for
the occupancy or use of all or any part of the Property. Borrower hereby
authorizes Lender or Xxxxxx's agents to collect the Revenues and hereby directs
such tenants, lessees and licensees of the Property to pay the Revenues to
Lender or Lender's agents; provided, however, that prior to written notice given
by Lender to Borrower of any Event of Default by Borrower, Borrower shall
collect and receive the Revenues as trustee for the benefit of Lender, to apply
the Revenues so collected to the Secured Obligations, to the extent then due,
with the balance, so long as no Event of Default has occurred, to the account of
Borrower. Xxxxxxxx agrees that each and every tenant, lessee and licensee of the
Property shall pay, and hereby irrevocably authorizes and directs each and every
tenant, lessee and licensee of the Property to pay, the Revenues to Lender or
Lender's agents on Lender's written demand therefor without any obligation on
the part of said tenant, lessee or licensee to inquire as to the existence of an
Event of Default and notwithstanding any notice or claim of Borrower to the
contrary, and Xxxxxxxx agrees that Xxxxxxxx shall have no right or claim against
said tenant, lessee or licensee for or by reason of any Revenues paid to Lender
following receipt of such written demand.
(b) Borrower hereby covenants that Xxxxxxxx has not executed any prior
assignment of the Leases or the Revenues, that Borrower has not performed, and
will not perform, any acts or has not executed, and will not execute, any
instruments which would prevent Lender from
21
exercising the rights of holder under this Security Deed, and that at the time
of execution of this Security Deed, there has been no anticipation or prepayment
of any of the Revenues for more than one (1) month prior to the due dates of
such Revenues. Borrower further covenants that Borrower will not hereafter
collect or accept payment of any Revenues more than one (1) month prior to the
due dates of such Revenues.
(c) Xxxxxxxx agrees that neither the foregoing assignment of Leases and
Revenues nor the exercise of any of Lender's rights and remedies under Paragraph
22 hereof shall be deemed to make Lender a mortgagee-in-possession or otherwise
responsible or liable in any manner with respect to the Leases, the Property or
the use, occupancy, enjoyment or operation of all or any portion thereof, unless
and until Xxxxxx, in person or by agent, assumes actual possession thereof. Nor
shall the appointment of any receiver for the Property by any court at the
request of Lender or by agreement with Xxxxxxxx, or the entering into possession
of any part of the Property by such receiver, be deemed to make Lender a
mortgagee-in-possession or otherwise responsible or liable in any manner with
respect to the Leases, the Property or the use, occupancy, enjoyment or
operation of all or any portion thereof.
(d) If Lender or a court-appointed receiver enters upon, takes possession
of and maintains control of the Property pursuant to this Security Deed, all
Revenues thereafter collected shall be applied first to the costs of taking
control of and managing the Property and collecting the Revenues, including, but
not limited to, reasonable attorneys' fees actually incurred, receiver's fees,
premiums on receiver's bonds, costs of repairs to the Property, premiums on
insurance policies, Impositions and other charges on the Property, and the costs
of discharging any obligation or liability of Borrower as landlord, lessor or
licensor of the Property and then to the Secured Obligations. Lender or the
receiver shall have access to the books and records used in the operation and
maintenance of the Property and shall be liable to account only for those
Revenues actually received. Lender shall not be liable to Borrower, anyone
claiming under or through Borrower or anyone having an interest in the Property
by reason of anything done or left undone by Xxxxxx. If the Revenues are not
sufficient to meet the costs of taking control of and managing the Property and
collecting the Revenues, any monies expended by Lender for such purposes shall
become a portion of the Secured Obligations. Unless Lender and Borrower agree in
writing to other terms of payment, such amounts shall be payable upon notice
from Lender to Borrower requesting payment thereof and shall bear interest from
the date of disbursement at the Default Rate as that term is defined in the Note
unless payment of interest at such rate would be contrary to applicable law, in
which event such amounts shall bear interest at the highest rate which may be
collected from Borrower under applicable law. The entering upon and taking
possession of and maintaining of control of the Property by Xxxxxx or the
receiver and the application of Revenues as provided herein shall not cure or
waive any Event of Default or invalidate any other right or remedy of Lender
hereunder.
18. Leases of the Property. Borrower will not enter into any sublease of
----------------------
all or any portion of the Property unless such sublease shall be upon a form of
lease previously approved by Lender or as approved under the Loan Agreement
provided, however, that after any Event of Default shall have occurred hereunder
and until such time as such Event of Default has either been cured with a
written consent of Lender or the Event of Default has been waived in writing
22
by Xxxxxx, Borrower will not enter into any sublease of all or any portion of
the Property, Borrower will not enter into any sublease of all or any portion of
the Property or amend, supplement or otherwise modify, or terminate or cancel,
or accept the surrender of, or consent to the assignment or subletting of, or
grant any concessions to or waive the performance of any obligations of any
tenant, lessee or licensee under, any now existing or future sublease of the
Property, without the prior written consent of Lender. Borrower, at Xxxxxx's
request, shall furnish Lender with executed copies of all Leases hereafter made
of all or any part of the Property, and all Leases now or hereafter entered into
will be in form and substance subject to the approval of Lender. Upon Xxxxxx's
request, Xxxxxxxx shall make a separate and distinct assignment to Lender, as
additional security, of all Leases hereafter made of all or any part of the
Property.
19. Remedies Cumulative. All remedies provided in this Security Deed are
-------------------
distinct and cumulative to any other right or remedy under this Security Deed or
under the other Loan Documents or afforded by law or equity, and may be
exercised concurrently, independently or successively.
20. Taxation of Security Deeds. In the event of the enactment of any law
--------------------------
deducting from the value of the Property any mortgage lien thereon, or imposing
upon Lender the payment of all or part of the taxes, charges or assessments
previously paid by Borrower pursuant to this Security Deed, or changing the law
relating to the taxation of mortgages or debts secured by mortgages or Xxxxxx's
interest in the Property so as to impose new incidents of tax on Lender, then
Borrower shall pay such taxes or assessments or shall reimburse Lender therefor;
provided, however, that if in the opinion of counsel to Lender, such payment
cannot lawfully be made by Borrower, and such change in the law cannot be
remedied and lawful payment made by Borrower to the reasonable satisfaction of
Lender within thirty (30) days following notice to Borrower by Lender of the
occurrence of such change, then Lender may, at Xxxxxx's option, declare the
Secured Obligations to be immediately due and payable and invoke any remedies
permitted by Paragraph 22 of this Security Deed.
21. Events of Default and Acceleration. The term "Event of Default",
----------------------------------
wherever used in this Security Deed, shall mean any one or more of the following
conditions or events:
(a) Failure by Borrower to pay as and when due and payable any interest on
or principal of or other sum payable under the Note; or
(b) Failure by Borrower to pay as and when due and payable any sums to be
paid by Borrower under this Security Deed (including, but not limited to, any
payment of Funds) or the Reimbursement Agreement; or
(c) Failure by Borrower to duly observe or perform any term, covenant,
condition or agreement contained in this Security Deed (other than the
obligations to make payments referred to in subparagraph (b) above) contained in
Paragraphs 3 or 4 of this Security Deed and continuance of such failure for a
period of thirty (30) days after written notice thereof from Lender; or
23
(d) Failure by Borrower to duly observe or perform any other term,
covenant, condition or agreement contained in Paragraphs 6 or 7 of this Security
Deed; and with respect to Borrower's obligations to comply with all applicable
Environmental Laws, including either or both the clean-up and removal of
Hazardous Materials present on the Property, Borrower shall have at least twenty
(20) days to achieve such full compliance after written notice from Lender
requiring such compliance, if Borrower shall commence and diligently pursue to
full compliance in accordance with the terms of Paragraph 7, plus such
additional time as Lender, in its sole judgment, shall allow Borrower for such
compliance; provided, however, Lender may in its sole judgment, declare an Event
of Default to exist by written notice thereof to Borrower at any time after the
expiration of such twenty (20) day period if such full compliance with all
applicable Environmental Laws shall not have been so achieved at the time of
such notice; or hand continuance of such failure for a period of five (5) days
after notice thereof from Lender; or
(e) Failure by Borrower to duly observe or perform any other term,
covenant, condition or agreement contained in this Security Deed or the Loan
Agreement and continuance of such failure for a period of twenty (20) days after
written notice thereof from Lender; or
(f) Any representation or warranty of Borrower contained in this Security
Deed or the Reimbursement Agreement or the Note Pledge Agreement or the Loan
Agreement shall prove to have been false or incorrect in any material respect
upon the date when made; or
(g) Without the prior written consent of Lender, any change in the
majority of the voting stock of Borrower, any merger, reorganization,
dissolution or termination of existence of Borrower as a corporation; or
(h) The filing by Borrower or any guarantor of the Obligations of a
voluntary petition in bankruptcy under Title 11 of the United States Code, or
the issuing of an order for relief against Borrower or any guarantor in any
involuntary petition in bankruptcy under Title 11 of the United States Code, or
the filing by Borrower or any guarantor of any petition or answer seeking or
acquiescing in any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under any present or
future federal, state or other law or regulation relating to bankruptcy,
insolvency or, other relief for debtors, or Borrower's or any guarantor's
seeking or consenting to or acquiescing in the appointment of any custodian,
trustee, receiver, conservator or liquidator of Borrower or such guarantor,
respectively, or of all or any substantial part of its respective property, or
the making by Borrower or any guarantor of any assignment for the benefit of
creditors, or Borrower's or any guarantor's failure generally to pay its debts,
as such debts become due, or Borrower's or any guarantor's giving of notice to
any governmental authority or body of insolvency or pending insolvency or
suspension of operations; or
(i) The entry by a court of competent jurisdiction of any order, judgment
or decree approving a petition filed against Borrower or any guarantor of the
Obligations seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future federal,
state or other law or regulation relating to bankruptcy,
24
insolvency or other relief for debtors, or appointing any custodian, trustee,
receiver, conservator or liquidator of all or any substantial part of Borrower's
or any guarantor's property; or
(j) The occurrence of any "Event of Default" as defined in the Sublease,
the Reimbursement Agreement or any of the other Loan Documents executed by
Xxxxxxxx and continuation of such default beyond any grace period set forth
therein for the curing thereof, or
(k) Such a change in the condition or affairs (financial or otherwise) of
the Borrower or of any obligor, endorser, guarantor or surety under or for any
of the Secured Obligations, or decline in the value of the Property as, in the
opinion of the Lender, materially impairs the Lender's security or increases its
risk or if the Lender in good xxxxx xxxxx itself insecure; or
(l) Default after the expiration of any applicable cure period in the
prompt payment, performance or observance of any material term, provision,
condition, covenant, warranty or representation set forth in any mortgages,
liens, lease or encumbrances affecting the Property, whether or not such
mortgage, lien, lease or encumbrance is senior or junior to this Mortgage, and
whether or not such mortgage, lien, lease or encumbrance has been consented to
by Xxxxxx, provided, however, that nothing herein shall be deemed to be a
consent by Xxxxxx, implied or otherwise, to the granting of any mortgage, lien
or encumbrance on the Premises.
If an Event of Default shall have occurred, Lender may, at Lender's option,
by notice to Borrower declare the entire Secured Obligations to be immediately
due and payable, whereupon the same shall become immediately due and payable,
and without presentment, protest, demand or other notice of any kind, all of
which are hereby expressly waived by Borrower and Lender may exercise any and
all of its remedies; provided that if any Event of Default specified in clauses
--------
(g), (h), (i), (k) or (l) of this Paragraph shall occur, the Secured Obligations
automatically shall become and be immediately due and payable and Lender may
exercise any and all of its remedies, without any declaration or other act on
the part of Lender, unless a notice of grace period shall be given therein for
any specific type of Event of Default. No omission on the part of Lender to
exercise such option when entitled to do so shall be construed as a waiver of
such right.
22. Rights and Remedies.
-------------------
(a) Power of Sale and other Remedies. Upon the occurrence of any Event of
--------------------------------
Default, and whether or not Lender shall have accelerated the maturity of the
Secured Obligations pursuant to Paragraph 21 hereof, Lender, at its option, may
take the following actions or any one or more of them from time to time:
(i) Declare any one or more of the Secured Obligations immediately
due and payable;
(ii) Cease advancing money or extending credit to or for the benefit
of the Borrower under any agreement, whether or not secured hereby;
25
(iii) Foreclose this Security Deed under any legal method of
foreclosure in existence at the time or now existing, or under any other
applicable law, including, without limitation, the Statutory Power of Sale,
which is incorporated herein by reference, and if the Property consists of
multiple parcels or units, to foreclose against the entire Property or such
portions thereof in such order and at such times as Lender may determine all in
its discretion, and the deferral or delay in foreclosure against any portion of
the Property shall not impair the right of Lender to subsequently foreclose;
(iv) either with or without entering upon or taking possession of
the Property, demand, collect and receive any or all Revenues;
(v) take possession of all or any part of the Collateral, and for
such purpose Lender may, so far as Borrower can give authority, enter upon any
premises on which the Collateral or any part thereof may be situated and remove
the same;
(vi) either with or without taking possession of the Collateral,
sell, lease or otherwise dispose of the Collateral in its then condition or
following such preparation as Lender deems advisable;
(vii) either with or without entering upon or taking possession of
the Property, and without assuming any obligations of Borrower thereunder,
exercise the rights of Borrower under, use or benefit from, any of the Plans,
Leases, the Sublease or Intangible Property;
(viii) in person, by agent or by court appointed receiver, enter
upon, take possession of, and maintain full control of the Property in order to
perform all acts necessary or appropriate to complete the Improvements and to
maintain and operate the Property, including, but not limited to, the execution,
cancellation or modification of Leases, the making of repairs to the Property
and the execution or termination of contracts providing for the improvement,
management or maintenance of the Property, all on such terms as Lender, in its
sole discretion, deems proper or appropriate;
(ix) proceed by a suit or suits in law or in equity or by other
appropriate proceeding against Borrower or any other party liable to enforce
payment of the Secured Obligations or the performance of any term, covenant,
condition or agreement of this Security Deed, the Loan Agreement, the
Reimbursement Agreement, or any of the other Loan Documents, or any other right,
and to pursue any other remedy available to it, all as Lender shall determine
most effectual for such purposes;
(x) institute and maintain such suits and proceedings as Xxxxxx
may deem expedient to prevent any impairment of the Property by any acts which
may be unlawful or in violation of this Security Deed, to preserve or protects
its interest in the Property and the Revenues, and to restrain the enforcement
of or compliance with any legislation or other governmental enactment, rule or
order that would impair the security hereunder or be prejudicial to the interest
of Lender. Borrower recognizes that in the event Borrower defaults, no remedy of
law will provide adequate relief to Lender, and therefore Xxxxxxxx agrees that
Lender shall be
26
entitled to temporary and permanent injunctive relief to cure any such Default
without the necessity of proving actual damages;
(xi) apply all or any portion of the Property, or the proceeds
thereof, towards (but not necessarily in complete satisfaction of) the Secured
Obligations without being deemed to have waived any Event of Default;
(xii) foreclose any and all rights of Borrower in and to the
Property, whether by sale, entry or in any other manner provided for hereunder
or under the laws of the Commonwealth of Massachusetts whether now existing or
as hereafter arising;
(xiii) in the case of any receivership, insolvency, bankruptcy,
reorganization, arrangement, adjustment, composition or other proceedings
affecting Borrower or the creditors or property of Xxxxxxxx, Lender, to the
extent permitted by law, shall be entitled to file such proofs of claim and
other documents as may be necessary or advisable in order to have the claims of
Lender allowed in such proceedings for the entire amount of the Secured
Obligations at the date of the institution of such proceedings and for any
additional portion of the Secured Obligations accruing after such date;
(xiv) exercise any other right or remedy of a mortgagee or secured
party under the laws of the Commonwealth of Massachusetts; and
(xv) Set-off against any and all deposits, accounts, certificate of
deposit balances, claims, or other sums at any time credited by or due from
Lender to Borrower and against all other property of Xxxxxxxx in the possession
of Lender or under its control.
(b) Receiver. If an Event of Default shall have occurred, Lender, upon
--------
application to a court of competent jurisdiction, shall be entitled as a matter
of strict right, without notice and without regard to the occupancy or value of
any security for the Secured Obligations or the solvency of any party bound for
its payment, to the appointment of a receiver to take possession of and to
operate the Property and to collect and apply the Revenues. The receiver shall
have all of the rights and powers permitted under the laws of the Commonwealth
of Massachusetts or otherwise existing. Borrower will pay to Lender upon demand,
all expenses, including receiver's fees, attorneys' fees, costs and agent's
compensation, incurred pursuant to such appointment and all such expenses shall
be a portion of the Secured Obligations.
(c) Sale or Other Disposition of Property. Any sale or other disposition
-------------------------------------
of the Collateral may be at public or private sale, to the extent such private
sale is authorized under the provisions of the Uniform Commercial Code as
enacted in the Commonwealth of Massachusetts, upon such terms and in such manner
as Lender deems advisable. Lender may conduct any such sale or other disposition
of the Property upon the Land, in which event Lender shall not be liable for any
rent or charge for such use of the Land. Lender may purchase the Property, or
any portion of it, at any sale held under this Paragraph. With respect to any
Collateral to be sold pursuant to the Uniform Commercial Code, Lender shall give
Borrower at least seven (7) days written notice of the date, time, and place of
any proposed public sale, or such additional notice
27
as may be required under the laws of the Commonwealth of Massachusetts, and of
the date after which any private sale or other disposition may be made. Lender
may sell any of the Collateral as part of the real property comprising the
Property, or any portion or unit thereof, at the foreclosure sale or sales
conducted pursuant hereto. If the provisions of the Uniform Commercial Code are
applicable to any part of the Collateral which is to be sold in combination with
or as part of the real property comprising the Property, or any part thereof, at
one or more foreclosure sales, any notice required under such provisions shall
be fully satisfied by the notice given in execution of any method of
foreclosure, including, without limitation, the STATUTORY POWER OF SALE, with
respect to the real property or any part thereof. Borrower waives any right to
require the marshalling of any of its assets in connection with any disposition
conducted pursuant hereto. In the event all or part of the Property is included
at any foreclosure sale conducted pursuant hereto, a single total price for the
Property, or such part thereof as is sold, may be accepted by Lender with no
obligation to distinguish between the application of such proceeds amongst the
property comprising the Property. The obligations of Borrower to pay such
amounts shall be included in the Secured Obligations of Borrower to Lender and
shall accrue interest at the default rate of interest set forth in the Note.
Xxxxxxxx agrees that all rights and remedies of Lender as to the Personal
Property and as to the Property, and all rights and interests appurtenant
thereto, shall be cumulative and may be exercised together or separately without
waiver by Lender of any other of its rights or remedies. Borrower further agrees
that any sale or other disposition by Lender of any of the Personal Property and
any rights and interests therein or appurtenant thereto, or any part thereof,
may be conducted either separately from or together with any foreclosure, sale
or other disposition of the Property, or any rights or interests therein or
appurtenant thereto, or any part thereof, all as the Lender may in its sole
discretion elect.
(d) Collection of Revenues. In connection with the exercise by Xxxxxx of
----------------------
the rights and remedies provided for in subparagraph (a)(ii) of this Paragraph:
(i) Lender may notify any tenant, lessee or licensee of the
Property, either in the name of Lender or Borrower, to make payment of Revenues
directly to Lender or Lender's agents, may advise any person of Xxxxxx's
interest in and to the Revenues, and may collect directly from such tenants,
lessees and licensees all amounts due on account of the Revenues;
(ii) At Lender's request, Borrower will provide written notification
to any or all tenants, lessees and licensees of the Property concerning Xxxxxx's
interest in the Revenues and will request that such tenants, lessees and
licensees forward payment thereof directly to Lender;
(iii) Borrower shall hold any proceeds and collections of any of the
Revenues in trust for Lender and shall not commingle such proceeds or
collections with any other funds of Borrower; and
(iv) Borrower shall deliver all such proceeds to Lender immediately
upon the receipt thereof by Borrower in the identical form received, but duly
endorsed or assigned on behalf of Borrower to Lender.
28
The acceptance of payments and funds, and the application of such payments
and funds after the commencement of any foreclosure proceedings shall not waive
or impair such foreclosure or the defaults in the Secured Obligations.
(e) Use and Occupation of Property. In connection with the exercise of
------------------------------
Lender's rights under Subparagraph (a)(vi) of this Paragraph, Lender may enter
upon, occupy, and use all or any part of the Property and may exclude Borrower
from the Land and the Improvements or portion thereof as may have been so
entered upon, occupied, or used. Lender shall not be required to remove any
Personal Property from the Land and the Improvements upon Xxxxxx's taking
possession thereof, and may render any Personal Property unusable to Borrower.
In the event Xxxxxx manages the Land and the Improvements, Borrower shall pay
to Lender on demand a reasonable fee for the management thereof in addition to
the Secured Obligations. Further, Lender may make such alterations, renovations,
repairs, and replacements to the Improvements, as Lender, in its sole
discretion, deems proper or appropriate. The obligation of Borrower to pay such
amounts and all expenses incurred by Xxxxxx in the exercise of its rights
hereunder shall be included in the Secured Obligations and shall accrue interest
at the default rate of interest stated in the Note.
(f) Partial Sales. Xxxxxxxx agrees that in case Lender, in the exercise of
-------------
the power of sale contained herein or in the exercise of any other rights
hereunder given, elects to sell in parts or parcels, said sales may be held from
time to time and that the power shall not be exhausted until all of the Property
not previously sold shall have been sold, notwithstanding that the proceeds of
such sales exceed, or may exceed, the Secured Obligations.
(g) Assembly of Collateral. Upon the occurrence of any Event of Default,
----------------------
Lender may require Borrower to assemble the Collateral and make it available to
Lender, at Borrower's sole risk and expense, at a place or places to be
designated by Lender which are reasonably convenient to both Lender and
Borrower.
(h) Actions by Xxxxxx. Upon the occurrence of any Event of Default that
continues beyond any applicable grace or cure period, Borrower hereby
irrevocably constitutes and appoints Lender or any receiver appointed in
accordance with this Security Deed to be Borrower's true and lawful attorney in
fact to take any action with respect to the Property to preserve, protect, or
realize upon Xxxxxx's interest therein, each at the sole risk, cost and expense
of Borrower, but for the sole benefit of Lender. The rights and powers granted
by the within appointment include, but are not limited to, the right and power
to: (i) prosecute, defend, compromise, settle, or release any action relating to
the Property; (ii) endorse the name of Borrower upon any and all checks or other
items constituting Revenues; (iii) sign and endorse the name of Borrower on, and
to receive as secured party, any of the Collateral; (iv) sign and file or record
on behalf of Borrower any financing or other statement in order to perfect or
protect Lender's security interest; (v) enter into leases or subleases relative
to all or a portion of the Land or the Improvements; (vi) enter into any
contracts or agreements relative to, and to take all action deemed necessary in
connection with, any Improvements on the Land (vii) manage, operate, maintain,
or repair the Land and the Improvements; and (viii) exercise the rights of
Borrower under any Plans, Leases, or Intangible Personal Property. Such receiver
or Lender shall not be
29
obligated to perform any of such acts or to exercise any of such powers, but if
it so elects so to perform or exercise, it shall not be accountable for more
than it actually receives as a result of such exercise of power, and shall not
be responsible to Borrower except for willful misconduct or gross negligence.
All powers conferred by this Security Deed, being coupled with an interest,
shall be irrevocable until terminated by a written instrument executed by a duly
authorized officer of Lender or until payment of this Security Deed as shall
entitle the Borrower to a discharge of record of the lien hereof, whichever
shall first occur.
23. Sublease Covenants. Borrower, in its capacity as Sublessee under the
------------------
Sublease, covenants and agrees with Xxxxxx as follows regarding the Sublease:
A. (a) Borrower holds a valid leasehold interest in the Property
described in the Sublease and that it may lawfully mortgage and assign the same
to Lender under this Security Deed.
(b) The description of the Sublease set forth in the Recitals hereof
contains a correct and complete description of the Sublease.
(c) Borrower has furnished to Lender a true and correct copy of the
Sublease.
(d) The Sublease has not been modified or assigned by Borrower or, to
the best knowledge of Borrower, assigned by the Authority as Sublessor
thereunder.
(e) The Sublease is in full force and effect, and to the best
knowledge of Borrower, there is no default under the Sublease and there exists
no condition which, with the giving of notice or passage of time or both, would
cause a default under the Sublease.
(f) The execution, delivery and performance of this Security Deed by
Borrower do not require any consent (other than those consents that have been
obtained and are in full force and effect) under, and will not contravene any
provision of or cause a default under, the Sublease.
(g) Borrower shall duly and punctually pay, perform and observe all
of its obligations under the Sublease.
(h) Borrower shall do all things necessary or appropriate to enforce,
preserve and keep unimpaired the rights of Borrower in its capacity as Sublessee
under the Sublease.
(i) Borrower shall not terminate, cancel, sever or surrender, or
suffer the termination, cancellation, severance or surrender, of the Sublease or
the subleasehold interest in the Sublease, and any attempt on the part of
Borrower to exercise any such right without the prior written consent of Lender
shall be void.
(j) Borrower shall not modify or amend the Sublease or otherwise
waive, excuse, release or discharge Sublessor without the prior written consent
of Lender.
30
(k) Borrower irrevocably assigns to Lender the right to exercise (i)
any right to extend the term of the Sublease and (ii) any option to purchase or
otherwise acquire the interest of either the Authority or the City, if any,
under the Sublease.
(l) Borrower shall notify Lender (i) promptly after receipt
contemporaneously when given, as the case may be, of the receipt or giving by
Borrower of any notice of default under the Sublease or of any notice of the
possible or actual termination thereof, or of the possible or actual termination
of any material right of Borrower thereunder or any material obligation of any
other party thereunder, accompanied by a copy of such notice, (ii) promptly
after learning about any condition, or the existence of any condition which,
with or without the giving of notice or the passage of time or both, would
constitute a default under the Sublease or any termination thereof, (iii)
promptly after receiving or learning of the existence of any assignment, or the
existence of any assignment of the interest of the Authority under the Sublease,
accompanied by a copy of such assignment received by Xxxxxxxx, and (iv) promptly
after receipt or contemporaneously when given, as the case may be, of the
receipt or giving of any notice relating to any option to purchase or right of
first refusal under the Sublease, accompanied by a copy of such notice.
B. The provisions of this Paragraph 22 shall also apply to any right of
Borrower, in its capacity as Sublessee under the Sublease, to retain its rights
under the Sublease under (S)365 of the Bankruptcy Code in the event the Sublease
is rejected by any other party thereunder or its Trustee pursuant to said
(S)365.
C. In the event Borrower in its capacity as sublessee under the sublease
acquires the fee simple title or any other greater estate or interest in the
Land, such acquisitions will not merge with the leasehold estate created by the
Sublease, but such other title, estate or interest will remain discrete, shall
immediately and automatically become subject to the lien of this Security Deed,
and such title, estate or interest shall be part of the Property and included
within the term and definition of "Land". Borrower in its capacity as sublessor
under the Sublease shall execute, acknowledge and deliver any instruments
requested by Xxxxxx to confirm the coverage of the lien hereof upon such other
greater estate or interest. Borrower in its capacity as sublesee under the
Sublease shall pay any and all conveyance or mortgage taxes, and filing or
similar fees in connection with the execution, delivery, filing or recording of
any such instrument.
X. Xxxxxxxx in its capacity as sublessee under the Sublease hereby
unconditionally assigns, transfers and sets over to Lender all of Borrower's
claims and rights to the payment of damages that may hereafter arise from any
rejection of Borrower's subleasehold interest in the Sublease by the Authority
or the City or by any trustee of any such party pursuant to the Bankruptcy Code.
Lender shall have the right, and is hereby granted the right, to proceed in its
own name or in the name of Borrower in its capacity as sublessee under the
Sublease in respect of any claim, suit, action or proceeding relating to the
rejection of the Sublease including, without limitation, the right to file and
prosecute, to the exclusion of Borrower in its capacity as sublessee under the
Sublease, any proofs of claim, complaints, motions, applications, notices and
other documents, in any case in respect of the Authority or the City under the
Bankruptcy Code.
31
This assignment constitutes a present, irrevocable and unconditional assignment
of the foregoing claims, rights and remedies, and shall continue in effect until
the termination of this Security Deed in the manner and at the time provided in
Paragraph 29. Any amounts received by Xxxxxx as damages arising out of any such
rejection of the Sublease as a foresaid shall be applied and paid as set forth
herein.
X. Xxxxxxxx in its capacity as Sublessee under the sublease shall not,
without Xxxxxx's prior written consent, elect to treat the Sublease or
Borrower's subleasehold interest under the Sublease as terminated under Section
365(h)(1) of the Bankruptcy Code after the rejection of the Sublease or the
subleasehold interest under the sublease by the Authority or the City, as
applicable, or by any trustee of such party. Any election made without Xxxxxx's
prior consent shall be void. Borrower hereby expressly assigns, releases,
relinquishes and surrenders unto Lender all of its right, power and authority to
cancel, terminate, surrender, sever, amend, modify or alter in any respect the
terms and provisions of the Sublease or the subleasehold interest under the
Sublease.
F. If pursuant to Section 365(h)(1) of the Bankruptcy Code, Borrower in
its capacity as sublessee under the Sublease seeks to offset against the rent or
other charges reserved in the Sublease, the amount of any damages caused by the
non-performance of the Authority of any of the Authority's obligations under
this Sublease after the rejection by the Authority of the Sublease under the
Bankruptcy Code, Borrower in its capacity as sublessee under the Sublease shall,
prior to effecting such offset, notify Lender of its intention to do so, setting
forth the amounts proposed to be so offset and the basis therefor. Lender shall
have the right, within ten (10) days after receipt of such notice from Borrower,
to reasonably object to all or any part of such offset and, in the event of such
reasonable objection, Borrower shall not effect any offset of the amount so
objected to by Lender for a period of sixty (60) days after Lender has delivered
its objection notice to Borrower, during which time Lender shall have the right
to bring its objections to the attention of any court supervising the bankruptcy
of the City or the Authority under the Sublease, and both Lender and Borrower in
its capacity as sublessee under the Sublease agreed to abide by the decision of
any such court. If (Y) Xxxxxx has failed to object as aforesaid within the ten
(10) days, after notice from Xxxxxxxx, or (Z) the court fails to render its
decision within the above mentioned sixty (60) days, Borrower in its capacity as
sublessee under the Sublease may proceed to effect such offset in the amounts
set forth in Borrower's notice. Neither Lender's failure to object as aforesaid
nor any objection or other communication between Lender and Borrower in its
capacity as sublessee under the Sublease relating to such offset shall
constitute an approval of any such offset by Lender. Borrower in its capacity as
sublessee under the Sublease shall indemnify and hold Lender harmless of, from
and against any and all claims, demands, actions, suits, proceedings, damages,
losses, costs and expenses of every nature whatsoever (including, without
limitation, reasonable attorneys fees and disbursements) arising from or
relating to any offset by Borrower in its capacity as sublessee under the
Sublease.
G. If any action, proceeding, application, motion or notice shall be
commenced or filed in respect of the Authority or the City or in respect of all
or any part of the Property (including, without limitation, any proceeding
relating to the rejection of the Sublease or the subleasehold interest under the
Sublease) in connection with any case under the Bankruptcy Code
32
(other than a case under the Bankruptcy Code commenced with respect to Borrower
in any capacity), Lender shall have, and is hereby granted the right, but not
the obligation, to the exclusion of Borrower in its capacity as sublessee under
the Sublease, exercisable upon notice to Borrower in its capacity as sublessee
under the Sublease, to conduct and control any litigation with counsel of
Xxxxxx's choice. Lender may proceed in its own name or in the name of Borrower
in its capacity as sublessee under the Sublease in connection with any such
litigation, and Borrower in its capacity as sublessee under the Sublease agrees
to execute any and all powers, authorizations, consents and other documents
required by Xxxxxx in connection therewith. Borrower in its capacity as
sublessee under the Sublease shall pay to Lender or any person or entity that
Lender may designate all costs and expenses (including, without limitation,
reasonable attorneys fees and disbursements) and liabilities paid or incurred by
Lender in connection with the prosecution or conduct of any such proceeding
within five (5) days after notice from Lender setting forth such costs, expenses
and liabilities and reasonable detail. Any such costs, expenses or liabilities
not paid by Borrower in its capacity as sublessee under the Sublease as
aforesaid, shall be part of the Secured Obligations and shall be secured by this
Security Deed. Borrower in its capacity as sublessee under the Sublease shall
not commence any action, suit, proceeding or case, or file any application or
make any motion in any such case under the Bankruptcy Code (other than a case
under the Bankruptcy Code commenced with respect to Borrower in any capacity) in
respect of the Sublease without the prior written consent Lender, which consent
shall not be unreasonably withheld.
X. Xxxxxxxx in its capacity as sublessee under the Sublease shall
promptly, after obtaining knowledge thereof, notify Lender orally of any filing
by or against the Authority under the Sublease of a petition under the
Bankruptcy Code. Borrower in its capacity as sublessee under the Sublease shall
thereafter forthwith give written notice of such filing to Lender setting forth
any information available to Borrower in its capacity as sublessee under the
Sublease as to the date of such filing, the court in which such petition was
filed and the relief sought therein. Borrower in its capacity as sublessee under
the Sublease shall promptly deliver to Lender following receipt of any and all
notices, summonses, pleadings, applications and other documents received by
Borrower in such capacity in connection with any such petition and any
proceedings relating thereto.
I. Borrower in its capacity as sublessee under the Sublease shall
promptly notify Lender orally of any filing by or against Borrower in its
capacity as sublessee under the Sublease of a petition under the Bankruptcy
Code. Borrower in its capacity as sublessee under the Sublease shall thereafter
forewith give notice of filing to Lender, setting forth any information
available to Borrower in its capacity as sublessee under the Sublease as to the
date of such filing, the court in which such petition was filed and the relief
sought therein. Borrower in its capacity as sublessee under the Sublease shall
promptly deliver to Lender following (i) filing, any and all notices, summonses,
pleadings, applications and other documents filed by Borrower in such capacity
with a court in connection with any such petition in any proceedings relating
thereto and (ii) receipt, any and all notices, summonses, pleadings,
applications and other documents received by Borrower in its capacity as
sublessee under the Sublease in connection with any such petition in any
proceedings relating thereto.
33
J. If there shall be filed by or against Borrower in any capacity a
petition under the Bankruptcy Code, and Borrower, as a sublessee under the
Sublease or any trustee of the Borrower, shall determine to reject the Sublease
pursuant to Section 365(a) of the Bankruptcy Code, then Borrower in its capacity
as sublessee under the Sublease shall give Lender not less than ten (10) days
prior written notice of the date on which Borrower shall apply to the Bankruptcy
Court for authority to reject the Sublease. In that event, within such ten (10)
day period, or in the event that no affirmative action to assume or reject the
Sublease pursuant to the Bankruptcy Code shall have been taken within thirty
(30) days after the date of filing of such petition, Lender shall have the
right, but not the obligation, to serve upon Borrower or such trustee a notice
stating that (i) Lender demands that Borrower in its capacity as sublessee under
the Sublease or such trustee assume and assign its subleasehold interest under
the Sublease to Lender pursuant to Section 365 of the Bankruptcy Code and (ii)
Lender covenants to cure or provide adequate assurance of prompt cure of all
defaults (except defaults of the types specified in Section 365(b)(2) of the
Bankruptcy Code) and provide adequate assurance of future performance of
Borrower's obligations under the Sublease. If Xxxxxx serves upon Borrower in its
capacity as sublessee under the Sublease or such trustee, the notice described
in the preceeding sentence, either Borrower nor trustee shall seek to reject the
Sublease and Borrower and such trustee shall seek court approval to comply with
the demand provided for in clause (i) of the preceding sentence within thirty
days after the notice shall have been given, subject to the performance by
Xxxxxx of the covenants provided for in clause (ii) of the preceding sentence.
K. Effective upon the entry of an order for relief in respect of Borrower
in any capacity under the Bankruptcy Code, Borrower in its capacity as sublessee
under the Sublease hereby assigns and transfers to Lender a non-exclusive right
to apply to the Bankruptcy Court under Section 365(d)(4) of the Bankruptcy Code
for an order extending the period during which the Sublease or Borrower's
subleasehold interest thereunder may be rejected or assumed.
L. In the event that the Sublease shall be amended or modified
(including, without limitation, obtaining the prior written consent of Lender as
required under this Security Deed) which amendment or modification shall be
evidenced by a supplement to the Sublease to be executed and a memorandum
thereof to be executed and recorded by the parties thereto, Borrower in its
capacity as sublessee of the Sublease shall simultaneously with the recordation
of the memorandum of the supplement to the Sublease execute and record an
amendment to this Security Deed reflecting changes required to make this
Security Deed consistent with the sublease, as so supplemented.
24. Intentionally Omitted.
---------------------
25. Intentionally Omitted.
---------------------
26. Notices. Except as otherwise specified in this Security Deed, any and
-------
all notices, demands, elections or requests provided for or permitted to be
given pursuant to this Security Deed (hereinafter in this Paragraph referred to
as "Notice") shall be in writing and shall be deemed to have been properly given
or served by personal delivery or by sending same by overnight courier or by
depositing same in the United States Mail, postpaid and registered or
34
certified, return receipt requested, and addressed to the addresses set forth in
the commencement of this Security Deed. Each Notice shall be effective upon
being personally delivered or upon being sent by overnight courier or upon being
deposited in the United States Mail as aforesaid. However, the time period in
which a response to such Notice must be given or any action taken with respect
thereto, if any, shall commence to run from the date of receipt if personally
delivered or sent by overnight courier, or, if so deposited in the United States
Mail, the earlier of three (3) business days following such deposit and the date
of receipt as disclosed on the return receipt. Rejection or other refusal to
accept or the inability to deliver because of changed address for which no
Notice was given shall be deemed to be receipt of the Notice sent. By giving at
least thirty (30) days prior Notice thereof, Borrower or Lender shall have the
right from time to time and at any time during the term of this Security Deed to
change their respective addresses and each shall have the right to specify as
its address any other address within the United States of America.
27. Successors and Assigns Bound; Captions. The covenants and agreements
--------------------------------------
herein contained shall bind, and the rights hereunder shall inure to, the
respective successors and assigns of Xxxxxx and Borrower, subject to the
provisions of Paragraph 6 hereof. The captions and headings of the paragraphs of
this Security Deed are for convenience only and are not to be used to interpret
or define the provisions hereof
28. Governing Law; Severability. This Security Deed and the obligations of
---------------------------
Borrower hereunder shall be governed by and interpreted and determined in
accordance with the laws of the Commonwealth of Massachusetts. In the event that
any provision or clause of this Security Deed or the Note conflicts with
applicable law, such conflict shall not affect other provisions of this Security
Deed or the Note which can be given effect without the conflicting provision,
and to this end, the provisions of this Security Deed and the Note are declared
to be severable. In the event that any applicable law limiting the amount of
interest or other charges permitted to be collected from Borrower is interpreted
so that any charge for which provision is made in this Security Deed or in the
Note, whether considered separately or together with other charges permitted to
be collected from Borrower, is interpreted so that any such charge, whether
considered separately or together with other charges that are considered a part
of the transaction represented by this Security Deed and the Note, violates such
law, and Borrower is entitled to the benefit of such law, such charge is hereby
reduced to the extent necessary to eliminate such violation. The amounts, if
any, previously paid to Lender in excess of the amounts payable to Lender
pursuant to such charges as reduced shall be applied by Lender to reduce the
principal of the indebtedness evidenced by the Note.
29. Discharge. Upon payment and performance of the Secured Obligations,
---------
Lender shall discharge this Security Deed. Borrower shall pay Xxxxxx's
reasonable costs incurred in discharging this Security Deed.
30. Waivers. Xxxxxxxx agrees to the full extent permitted by law, that in
-------
case of an Event of Default hereunder, neither Borrower nor anyone claiming
through or under Borrower shall or will set up, claim or seek to take advantage
of any appraisement, valuation, stay, extension, homestead, exemption or
redemption laws now or hereafter in force, in order to
35
prevent or hinder the enforcement or foreclosure of this Security Deed, or the
absolute sale of the Property, or the final and absolute putting into possession
thereof, immediately after such sale, of the purchasers thereat, and Borrower,
for Borrower and all who may at any time claim through or under Borrower, hereby
waives to the fullest extent that Borrower may lawfully so do, the benefit of
all such laws, and any and all right to have the assets comprised in the
security intended to be created hereby marshaled upon any foreclosure of the
lien hereof. No delay or omission of Lender or of any holder of the Note to
exercise any right, power or remedy accruing upon any Event of Default shall
exhaust or impair any such right, power or remedy or shall be construed to be a
waiver of any such default, or acquiescence therein; and every right, power and
remedy given by this Security Deed to Lender may be exercised from time to time
and as often as may be deemed expedient by Lender. No consent or waiver,
expressed or implied, by Xxxxxx to or of any Event of Default shall be deemed or
construed to be a consent or waiver to or of any other Event of Default. Failure
on the part of Lender to complain of any act or failure to act which constitutes
an Event of Default, irrespective of how long such failure continues, shall not
constitute a waiver by Xxxxxx of Xxxxxx's rights hereunder or impair any rights,
powers or remedies consequent on any Event of Default. No act or omission of
Lender as described in Paragraph 13 above shall preclude Lender from exercising
any right, power or privilege herein granted or intended to be granted in the
event of any Event of Default then made or of any subsequent Event of Default;
nor, except as otherwise expressly provided in an instrument or instruments
executed by Xxxxxx, shall the lien of this Security Deed be altered thereby. No
acceptance of partial payment or performance shall waive, affect or diminish any
right of Lender or Borrower's duty of compliance and performance therewith. Any
Obligation which this Security Deed secures is a separate instrument and may be
negotiated, extended or renewed by Lender without releasing Borrower or any
guarantor or co-maker. In the event of the sale or transfer by operation of law
or otherwise of all or any part of the Property, Lender, without notice, is
hereby authorized and empowered to deal with any such vendee or transferee with
reference to the Property or the Secured Obligations or with reference to any of
the terms, covenants, conditions or agreements hereof, as fully and to the same
extent as it might deal with the original parties hereto and without in any way
releasing or discharging any liabilities, obligations or undertakings
(including, without limitation, the restrictions upon transfer contained in
Paragraph 6).
31. Further Assurances. At any time and from time to time, upon request by
------------------
Lender, Borrower will make, execute and deliver, or cause to be made, executed
and delivered, to Lender and, where appropriate, cause to be recorded and/or
filed and from time to time thereafter to be re-recorded and/or re-filed, at
such time and in such offices and places as shall be deemed desirable by Xxxxxx,
any and all such other and further assignments, mortgages, security agreements,
financing statements, continuation statements, instruments of further assurance,
certificates and other documents as may, in the opinion of Lender, be necessary
or desirable in order to effectuate, complete, or perfect, or to continue and
preserve (a) the obligations of Borrower under this Security Deed, and (b) the
lien and security interest created by this Security Deed upon the Property. Upon
any failure by Borrower so to do, Xxxxxx may make, execute, record, file, re-
record and/or re-file any and all such assignments, mortgages, security
agreements, financing statements, continuation statements, instruments,
certificates, and
36
documents for and in the name of Xxxxxxxx, and Xxxxxxxx hereby irrevocably
appoints Xxxxxx as the agent and attorney in fact of Xxxxxxxx so to do.
32. Subrogation. Lender shall be subrogated to all right, title, lien or
-----------
equity of all persons to whom Lender may have paid any monies in settlement of
liens, charges or assessments, or in acquisition of title or for its benefit
hereunder, or for the benefit or account of Borrower upon execution of the Note
or subsequently paid under any provisions hereof.
33. Time of the Essence. Time is of the essence with respect to each and
-------------------
every covenant, agreement and obligation of Borrower under this Security Deed,
the Note and any and all other Loan Documents.
34. Indemnification; Subrogation; Waiver of Offset.
----------------------------------------------
(a) Borrower shall indemnify, defend and hold Lender harmless against: (i)
any and all claims for brokerage, leasing, finders or similar fees which may be
made relating to the Property or the Secured Obligations, and (ii) any and all
liability, obligations, losses, damages, penalties, claims, actions, suits,
costs and expenses (including Lender's reasonable attorneys' fees, together with
reasonable appellate counsel fees, if any) of whatever kind or nature which may
be asserted against, imposed on or incurred by Lender in connection with the
Secured Obligations, this Security Deed, the Property, or any part thereof, or
the exercise by Lender of any rights or remedies granted to it under this
Security Deed; provided, however, that nothing herein shall be construed to
obligate Borrower to indemnify, defend and hold harmless Lender from and against
any and all liabilities, obligations, losses, damages, penalties, claims,
actions, suits, costs and expenses enacted against, imposed on or incurred by
Xxxxxx by reason of Xxxxxx's willful misconduct or gross negligence.
(b) If Xxxxxx is made a party defendant to any litigation or any claim is
threatened or brought against Lender concerning the Secured Obligations, this
Security Deed, the Property, or any part thereof, or any interest therein, or
the maintenance, operation or occupancy or use thereof, then Borrower shall
indemnify, defend and hold Lender harmless from and against all liability by
reason of said litigation or claims, including reasonable attorneys' fees
(together with reasonable appellate counsel fees, if any) and expenses incurred
by Xxxxxx in any such litigation or claim, whether or not any such litigation or
claim is prosecuted to judgment. If Xxxxxx commences an action against Borrower
to enforce any of the terms hereof or to prosecute any breach by Borrower of any
of the terms hereof or to recover any sum secured hereby, Borrower shall pay to
Lender its reasonable attorneys' fees (together with reasonable appellate
counsel, fees, if any) and expenses. The right to such attorneys' fees (together
with reasonable appellate counsel fees, if any) and expenses shall be deemed to
have accrued on the commencement of such action, and shall be enforceable
whether or not such action is prosecuted to judgment. If Borrower breaches any
term of this Security Deed, Xxxxxx may engage the services of an attorney or
attorneys to protect its rights hereunder, and in the event of such engagement
following any breach by Xxxxxxxx, Borrower shall pay Lender reasonable
attorneys' fees (together with reasonable appellate counsel fees, if any) and
expenses incurred by Xxxxxx, whether or not an action is actually commenced
against Borrower by reason of such breach. All references to
37
"attorneys" in this Subparagraph and elsewhere in this Security Deed shall
include without limitation any attorney or law firm engaged by Xxxxxx and
Xxxxxx's in-house counsel, and all references to "fees and expenses" in this
Subparagraph and elsewhere in this Security Deed shall include, without
limitation, any fees of such attorney or law firm and any allocation charges and
allocation costs of Xxxxxx's in-house counsel.
(c) A waiver of subrogation shall be obtained by Borrower from its
insurance carrier and, consequently, Borrower waives any and all right to claim
or recover against Lender, its officers, employees, agents and representatives,
for loss of or damage to Borrower, the Property, Xxxxxxxx's property or the
property of others under Borrower's control from any cause insured against or
required to be insured against by the provisions of this Security Deed.
(d) All sums payable by Borrower hereunder shall be paid without notice
(except as may otherwise be provided herein), demand, counterclaim, setoff,
deduction or defense and without abatement, suspension, deferment, diminution or
reduction, and the obligations and liabilities of Borrower hereunder shall in no
way be released, discharged or otherwise affected by reason of: (i) any damage
to or destruction of or any condemnation or similar taking of the Property or
any part thereof; (ii) any restriction or prevention of or interference with any
use of the Property or any part thereof; (iii) any title defect or encumbrance
or any eviction from the Land or the Improvements on the Land or any part
thereof by title paramount or otherwise; (iv) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation, or other like
proceeding relating to Lender, or any action taken with respect to this Security
Deed by any trustee or receiver of Lender, or by any court, in such proceeding;
(v) any claim which Borrower has, or might have, against Lender; (vi) any
default or failure on the part of Lender to perform or comply with any of the
terms hereof or of any other agreement with Borrower; or (vii) any other
occurrence whatsoever, whether similar or dissimilar to the foregoing, whether
or not Borrower shall have notice or knowledge of any of the foregoing. Borrower
waives all rights now or hereafter conferred by statute or otherwise to any
abatement, suspension, deferment, diminution, or reduction of any sum secured
hereby and payable by Borrower.
35. Future Advances by Xxxxxx. Lender may from time to time, at its sole
-------------------------
option, make further advances to Xxxxxxxx, to be secured hereby; provided,
however, that the total principal secured hereby and remaining unpaid, including
any such advances, shall not at any time exceed the sum of Twenty Million and
00/100ths Dollars ($20,000,000.00). Borrower shall execute and deliver to Lender
a note or other agreement evidencing each and every such further advance which
Lender may make, which note or agreement shall contain such terms and conditions
as Lender may require. Borrower shall pay when due all such further advances
with interest and other charges thereon, as applicable, and the same, and each
note and agreement evidencing the same, shall be fully secured hereby. All
provisions of this Security Deed shall apply to each such further advance as
well as to any other indebtedness secured hereby. Nothing herein contained,
however, shall limit the amount secured by this Security Deed if such amount is
increased by advances make by Xxxxxx to protect or preserve the Property as
provided elsewhere herein. Any future advances made hereunder may be made to
Borrower or to any successor to Xxxxxxxx in ownership of the Property.
38
THIS SECURITY DEED IS GIVEN PRIMARILY FOR BUSINESS, COMMERCIAL OR AGRICULTURAL
PURPOSES. THE PREMISES SUBJECT TO THIS SECURITY DEED ARE NOT USED EXCLUSIVELY
FOR RESIDENTIAL PURPOSES AND ARE NOT THE PRIMARY RESIDENCE OF THE GRANTOR OR IF
THE GRANTOR IS A TRUST, OF ANY BENEFICIARY OF THE TRUST.
IN WITNESS WHEREOF, Xxxxxxxx has executed this Security Deed, under xxxx,
as of February 29, 2000.
AEROVOX INCORPORATED
Xxxxxxx X. xxx By: X. Xxxxxx Xxxx
Witness Name: X. Xxxxxx Xxxx
Title: Vice President - Finance
Commonwealth of Massachusetts
County of Bristol, ss. February 29, 2000
Then personally appeared before me the above-named Xxxxxx X. Xxxxxxx in his
said capacity and acknowledged the foregoing to be his free act and deed and the
free act and deed of said Aerovox Incorporated.
Before me,
Xxxxxxx X. Xxxxxxx
Notary Public/Attorney-at-Law
Printed Name: Xxxxxxx X. Xxxxxxx
Notary Public
Commission Expires July 3, 2003
39
EXHIBIT A
---------
Legal Description of Land
LOT 2
Beginning at a point of intersection of the westerly line of Xxxx Xxxxxxxx
Boulevard Extension said-point in turn being Five Hundred Fifty and 47/100
(550.47) feet north of Xxxx Xxxxxxxx Cul de sac;
Thence westerly, in straight line bearing S 84%-30'-50" W a distance of Eight
Hundred sixty-two and 51/100 (862.51) feet to a point of intersection with the
City of New Bedford and Town of Dartmouth border line;
Thence northerly in a straight line in said New Bedford - Dartmouth border line
bearing N 08%-54'-00" E a distance of One Thousand Three Hundred Five and 66/100
(1305.66) feet to a point of intersection with the westerly line of Xxxx
Xxxxxxxx Boulevard Extension at city and town border line;
Thence easterly in a straight line bearing S 81%-06'-00" E a distance of One
Hundred One and 95/100 (101.95) feet to a point of curvature;
Thence south easterly in a curved line, having a radius of Three Hundred and
00/100 (300.00) feet, and subtending an angle of 39%-52'-18", a distance of Two
Hundred Eight and 77/100 (208.77) feet to a point of tangency;
Thence still southeasterly in a straight line bearing S 41%-13'-42" E a distance
of eighty three and 51/100 (83.51) feet to a point of curvature;
Thence southeasterly in a curved line having a radius of Three Hundred Fifty and
00/100 (350.00) feet, and subtending an angle of 20%-15'-30" a distance of One
Hundred Twenty Three and 75/100 (123.75) feet to a point of tangency;
Thence in a straight line again bearing S 61%-29'-12" E, a distance of
ninety-eight and 56/100 (98.56) feet to a point of curvature;
Thence again southeasterly in a curved line, having a radius of Two Hundred and
00/100 (200.00) feet, and subtending an angle of 64%-42'-06", a distance of Two
Hundred twenty-five and 85/100 (225.85) to a point;
Thence southerly in a straight line bearing S 03%-12'-54" W a distance of One
Hundred Forty Eight and 88/100 (148.88) feet to a point of curvature;
Thence still southeasterly in a curved line , having a radius of One Thousand
Twenty Five and 00/100 (1025.00) feet, subtending an angle of 08%-42'-04" a
distance of One Hundred Fifty Five and 66/100 (155.66) feet to a point of
tangency;
40
Thence in a straight line bearing S 05%-29'-10" E a distance of Four Hundred
Seventeen and 13/100 feet to the point of beginning, containing Eight Hundred
Four Thousand Two Hundred thirty-seven (804,237) square feet.
Said parcel is shown as Lot 2 on Sheet 1 of 2 on a plan entitled MODIFICATION TO
AN APPROVED DEFINITIVE SUBDIVISION PLAN OF LAND IN THE GREATER NEW BEDFORD
INDUSTRIAL PARK/2/, dated December 29, 1999 and prepared by Xxxxxxxx Engineering
Corp.
LOT 3
Beginning at a point in the easterly line of Xxxx Xxxxxxxx Boulevard extension
said point in turn being Four Hundred Fifty and 11/100 (450.11) feet north of
the cul de sac;
Thence northerly in said easterly line of Xxxx Xxxxxxxx Boulevard extension and
in a straight line bearing N 05%-29'-10" W a distance of Five Hundred Seventeen
and 49/100 (517.49) feet to a point of curvature;
Thence still northerly in a curved line, having a radius of Nine Hundred
seventy-five and 00/100 (975.00) feet, and subtending an angle of 01%-29'-58", a
distance of twenty-five and 52/100 (25.52) feet to a point;
Thence westerly in a straight line bearing N 84%-30'-50" E a distance of Two
Hundred seventy-nine and 67/100 (279.67) feet to a point of intersection with
the westerly limit of Lot No. 4;
Thence southerly in the westerly limit of said Lot No. 4 and in a straight line
bearing S 05%-29'-10" E, a distance of Five Hundred forty-three and 00/100
(543.00) feet to a point;
Thence westerly in a straight line bearing S 84%-30'-50" W a distance of Two
Hundred Eighty and 00/100 (280.00) feet to a point of intersection with the
easterly line of Xxxx Xxxxxxxx Boulevard Extension and Point of /Beginning,
containing One Hundred Fifty-two-Thousand thirty-seven (152,037) square feet.
Said parcel is shown as Lot 3 on Sheet 2 of 2 on a plan entitled MODIFICATION TO
AN APPROVED DEFINITIVE SUBDIVISION PLAN OF LAND IN THE GREATER NEW BEDFORD
INDUSTRIAL PARK/2/, dated December 29, 1999 and prepared by Xxxxxxxx Engineering
Corp.
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EXHIBIT B
---------
Permitted Encumbrances
The Permitted Encumbrances are those encumbrances referred to in the
Schedule B- Section 2 of the Lawyers Title Insurance Corporation policy issued
as of the date of recording of this instrument in the Bristol County Registry of
Deeds; provided, however, that notwithstanding such reference and the listing of
-------- -------
such encumbrances in Exhibit A to this instrument, Borrower represents and
-
warrants to Bank that such encumbrances do not materially interfere with the use
and enjoyment of the Land, Improvements and Personal Property and appurtenant
easements as presently carried on as a manufacturing facility.
42
EXHIBIT C
---------
Schedule I
----------
Description of "Debtor" and "Secured Party"
------------------------------------------
A. Debtor: AEROVOX INCORPORATED
------
1. Name and Identity or Organizational Structure: Delaware Corporation
2. The principal place of business and chief executive office of Debtor in the
Commonwealth of Massachusetts is located at 000 Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxxxxx 00000.
Debtor has been using or operating under said name and identity or
organizational structure without change since 1922.
B. Secured Party: KEYBANK NATIONAL ASSOCIATION
-------------
**********************************
Schedule 2
----------
Notice Mailing Addresses of "Debtor" and "Secured Party"
-------------------------------------------------------
A. The mailing address of Debtor is:
AEROVOX INCORPORATED
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chief Financial Officer
B. The mailing address of Secured Party is:
KEYBANK NATIONAL ASSOCIATION
One Canal Plaza
Portland, Maine 04101-4035
Attn: Commercial Lending Department
43
SCHEDULE A
----------
DEBTOR: AEROVOX INCORPORATED
SECURED PARTY: KEYBANK NATIONAL ASSOCIATION
a) All buildings, structures, parking areas, landscaping, and other
improvements of every nature now or hereafter situated, erected or placed on the
Land (hereinafter referred to as the "Improvements"), and all materials intended
for construction, reconstruction, alteration and repairs of the Improvements now
or hereafter erected, all of which materials shall be deemed to be included
within the Improvements immediately upon the delivery thereof to the Land; and
(b) All goods and items purchased with the proceeds of the Note or Notes (as to
all of which Secured Party claims a purchase money security interest under
Uniform Commercial Code ss. 9-312(4)), including, but not limited to, all
fixtures, machinery, equipment, furniture, inventory, building supplies,
appliances and other articles of personal property (hereinafter collectively
referred to as the "Personal Property"), including, but not limited to, all gas
and electric fixtures, radiators, heaters, furnaces, engines and machinery,
boilers, ranges, ovens, elevators and motors, bathtubs, sinks, commodes, basins,
pipes, faucets and other plumbing, heating and air conditioning equipment,
mirrors, refrigerating plant, refrigerators, iceboxes, dishwashers, carpeting,
floor coverings, furniture, light fixtures, signs, lawn equipment, water
heaters, and cooking apparatus and appurtenances, and all other fixtures and
equipment now or hereafter owned by Borrower and located in, on or about, or
used or intended to be used with or in connection with the use, operation, or
enjoyment of the Land or the Improvements, whether installed in such a way as to
become a part thereof or not, including all extensions, additions, improvements,
betterments, renewals and replacements of any of the foregoing and all the
right, title and interest of Borrower in and to any of the foregoing now owned
or hereafter acquired by Borrower, all of which are hereby declared and shall be
deemed to be fixtures and accessions to the freehold and a part of the
Improvements as between the parties hereto and all persons claiming by, through
or under them; and
(c) All right, title and interest of Borrower in and to all policies of
insurance, licenses, franchises, permits, service contracts, maintenance
contracts, property management agreements, equipment leases, tradenames,
trademarks, trade dress, servicemarks, logos, goodwill, accounts, chattel paper
and general intangibles as defined in the Uniform Commercial Code as enacted in
the Commonwealth of Massachusetts, which in any way now or hereafter belong,
relate or appertain to the Land, the Improvements or the Personal Property or
any part thereof now owned or hereafter acquired by Xxxxxxxx, including, without
limitation, all condemnation payments, insurance proceeds and escrow funds and
all other property of Borrower deposited with Lender or held by Lender pursuant
to the Loan Agreement (hereinafter referred to as the "Intangible Property");
and
(d) All present and future leases, tenancies, occupancies and licenses, whether
written or oral ("Leases"), of the Land, the Improvements, the Personal Property
and the Intangible Property, or any combination or part thereof, and all income,
rents, issues, royalties, profits, revenues,
44
security deposits and other benefits of the Land, the Improvements, the Personal
Property and the Intangible Property, from time to time accruing, all payments
under Leases, and all-.payments on account of oil and gas and other mineral
Leases, working interests, production payments, royalties, overriding royalties,
rents, delay rents, operating interests, participating interests and other such
entitlements, and all the estate, right, title, interest, property, possession,
claim and demand whatsoever at law, as well as in equity, of Borrower of, in and
to the same (hereinafter collectively referred to as the "Revenues");
(e) All the right, title, interest of Borrower in and to all plans and
specifications relating to the Improvements on the Land (hereinafter
collectively referred to as the "Plans"); and
(f) All proceeds, products, substitutions and accessions of the foregoing of
every type. (g) All judgments, awards of damages and settlements hereafter made
as a result or in lieu of any taking of the Property or any interest therein or
part thereof under the power of eminent domain, or for any damage (whether
caused by such taking or otherwise) to the Property, or the improvements thereon
or any part thereof, including any award for change of grade of streets.
TOGETHER WITH:
A. All leases, tenancies, agreements or licenses, written or oral, now
existing or hereafter entered into by Borrower as "landlord", "lessor" or
"licensor", for the use or occupancy of all or any portion of the property
(hereinafter referred to as the "Property") located in the New Bedford
Industrial Park, Xxxx Xxxxxxxx Boulevard Extension, New Bedford, Massachusetts,
more particularly described in Schedule A(l) attached hereto and by this
-------------
reference made a part hereof, including any and all extensions, renewals and
modifications thereof and guaranties of the performance or obligations of any
tenants, lessees or licensees thereunder (said leases, tenancies, agreements and
licenses are hereinafter referred to collectively as the "Leases," and said
tenants, lessees and licensees are hereinafter referred to collectively as
"Tenants" or individually as a "Tenant" as the context requires), together with
all of Xxxxxxxx's right, title and interest in and to all payments, rents,
issues and profits from the Leases and from the Property.
B. All rights, privileges and benefits now existing or hereafter arising under
the Leases, including, without limitation, all rights to exercise options to
extend or renew the Leases or to purchase the Premises and appurtenances
thereto, and all rights to insurance proceeds, eminent domain awards or payments
in lieu thereof, and
C. All rights of the Borrower in and to the fixtures, improvements,
alterations, or additions now or hereafter erected on the Premises; and
D. All subleases of the Premises or any portion thereof, and all monies,
rents, incomes and profits from the Premises or subleases thereof and rights
derived therefrom all whether now existing or hereafter arising, provided that
the Borrower shall not sublease the Premises or any portion thereof without
Xxxxxx's prior written consent.
45
TOGETHER WITH:
(i) those certain agreements, dated on or about November 2, 1999,
between Xxxxxxxx and Dacon Corporation (the "General Contractor") relating to
the construction of the Improvements including related infrastructure
(hereinafter, together with any and all extensions, modifications, amendments
and renewals thereof, referred to as the "Construction Contract");
(ii) all contracts and subcontracts, together with any and all
extensions, modifications, amendments and renewals thereof, which are entered
into by Borrower or the General Contractor in connection with the performance of
the work or the supply of labor, services or materials required for the
construction of the Improvements;
(iii) all guarantees, warranties and other undertakings, whether written,
oral or statutory, covering the quality or performance of the work or the
quality of the materials required by the General Contract, contracts and
subcontracts, together with any claims which may be asserted thereunder;
(iv) all building permits, governmental permits, licenses, consents,
approvals and authorizations now or hereafter granted or issued and all
tradenames, trademarks and logos used in connection with the construction,
development or operation of the Project (as defined in the Loan Agreement); and
(v) all plans, specifications, drawings, surveys, renderings and models
prepared for the construction of the Improvements in existence from time to
time, together with all revisions and modifications thereof and all sketches and
notes related thereto.
46
SCHEDULE A(1)
-------------
Leases
Ground Sublease dated January 4, 2000, between New Bedford Redevelopment
Authority as Sublessor and Aerovox Incorporated as Sublessee relating to the
Land and Improvements located at the New Bedford Industrial Park, Xxxx Xxxxxxxx
Boulevard Extension, New Bedford, Massachusetts, as more particularly described
in Exhibit A, attached hereto.
47
EXHIBIT A
---------
Legal Description of Leased Premises
LOT 2
Beginning at a point of intersection of the westerly line of Xxxx Xxxxxxxx
Boulevard Extension said-point in turn being Five Hundred Fifty and 47/100
(550.47) feet north of Xxxx Xxxxxxxx Cul de sac;
Thence westerly, in straight line bearing S 84%-30'-50" W a distance of Eight
Hundred sixty-two and 51/100 (862.51) feet to a point of intersection with the
City of New Bedford and Town of Dartmouth border line;
Thence northerly in a straight line in said New Bedford - Dartmouth border line
bearing N 08%-54'-00" E a distance of One Thousand Three Hundred Five and 66/100
(1305.66) feet to a point of intersection with the westerly line of Xxxx
Xxxxxxxx Boulevard Extension at city and town border line;
Thence easterly in a straight line bearing S 81%-06'-00" E a distance of One
Hundred One and 95/100 (101.95) feet to a point of curvature;
Thence south easterly in a curved line, having a radius of Three Hundred and
00/100 (300.00) feet, and subtending an angle of 39%-52'-18", a distance of Two
Hundred Eight and 77/100 (208.77) feet to a point of tangency;
Thence still southeasterly in a straight line bearing S 41%-13'-42" E a distance
of eighty three and 51/100 (83.51) feet to a point of curvature;
Thence southeasterly in a curved line having a radius of Three Hundred Fifty and
00/100 (350.00) feet, and subtending an angle of 20%-15'-30" a distance of One
Hundred Twenty Three and 75/100 (123.75) feet to a point of tangency;
Thence in a straight line again bearing S 61%-29'-12" E, a distance of
ninety-eight and 56/100 (98.56) feet to a point of curvature;
Thence again southeasterly in a curved line, having a radius of Two Hundred and
00/100 (200.00) feet, and subtending an angle of 64%-42'-06", a distance of Two
Hundred twenty-five and 85/100 (225.85) to a point;
Thence southerly in a straight line bearing S 03%-12'-54" W a distance of One
Hundred Forty Eight and 88/100 (148.88) feet to a point of curvature;
Thence still southeasterly in a curved line , having a radius of One Thousand
Twenty Five and 00/100 (1025.00) feet, subtending an angle of 08%-42'-04" a
distance of One Hundred Fifty Five and 66/100 (155.66) feet to a point of
tangency;
48
Thence in a straight line bearing S 05%-29'-10" E a distance of Four Hundred
Seventeen and 13/100 feet to the point of beginning, containing Eight Hundred
Four Thousand Two Hundred thirty-seven (804,237) square feet.
Said parcel is shown as Lot 2 on Sheet 1 of 2 on a plan entitled MODIFICATION TO
AN APPROVED DEFINITIVE SUBDIVISION PLAN OF LAND IN THE GREATER NEW BEDFORD
INDUSTRIAL PARK/2/, dated December 29, 1999 and prepared by Xxxxxxxx Engineering
Corp.
LOT 3
Beginning at a point in the easterly line of Xxxx Xxxxxxxx Boulevard extension
said point in turn being Four Hundred Fifty and 11/100 (450.11) feet north of
the cul de sac;
Thence northerly in said easterly line of Xxxx Xxxxxxxx Boulevard extension and
in a straight line bearing N 05%-29'-10" W a distance of Five Hundred Seventeen
and 49/100 (517.49) feet to a point of curvature;
Thence still northerly in a curved line, having a radius of Nine Hundred
seventy-five and 00/100 (975.00) feet, and subtending an angle of 01%-29'-58", a
distance of twenty-five and 52/100 (25.52) feet to a point;
Thence westerly in a straight line bearing N 84%-30'-50" E a distance of Two
Hundred seventy-nine and 67/100 (279.67) feet to a point of intersection with
the westerly limit of Lot No. 4;
Thence southerly in the westerly limit of said Lot No. 4 and in a straight line
bearing S 05%-29'-10" E, a distance of Five Hundred forty-three and 00/100
(543.00) feet to a point;
Thence westerly in a straight line bearing S 84%-30'-50" W a distance of Two
Hundred Eighty and 00/100 (280.00) feet to a point of intersection with the
easterly line of Xxxx Xxxxxxxx Boulevard Extension and Point of /Beginning,
containing One Hundred Fifty-two-Thousand thirty-seven (152,037) square feet.
Said parcel is shown as Lot 3 on Sheet 2 of 2 on a plan entitled MODIFICATION TO
AN APPROVED DEFINITIVE SUBDIVISION PLAN OF LAND IN THE GREATER NEW BEDFORD
INDUSTRIAL PARK/2/, dated December 29, 1999 and prepared by Xxxxxxxx Engineering
Corp.
49
