COMMERCIAL MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS
COMMERCIAL
MORTGAGE, SECURITY AGREEMENT AND
ASSIGNMENT
OF LEASES AND RENTS
This
COMMERCIAL MORTGAGE. SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS
(this
"Mortgage") entered into at Chicopee, Massachusetts, as of February 15, 2005, between
Xxxxx
X Xxxxxxx, as
Trustee of Northeast Nominee
Trust, a Massachusetts trust with
an
address of 0000 Xxxxxx Xxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the "Mortgagor") and CHICOPEE SAVINGS
BANK, a Massachusetts Savings Bank with an address of 00 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxxxx 00000-0000 (the "Bank").
Northeast
Nominee Trust was
formed u/d/t dated July 7, 2003, and recorded at
the N/A
county Registry of Deeds at book N/A . Page N/A .
The
real
property which is the subject matter of this Mortgage has the following
address(es) 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000-0000 (the
"Address(es)").
1.
MORTGAGE, OBLIGATIONS AND FUTURE ADVANCES
1.1
Mortgage. For
valuable consideration paid and for other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, the Mortgagor hereby
irrevocably and unconditionally mortgages, grants, bargains, transfers, sells,
conveys, sets over and assigns to the Bank and its successors and assigns
forever, with MORTGAGE
COVENANTS, all of Mortgagor's right, title and interest in and to the
"Property" described
below, to secure the prompt payment and performance of the Obligations (as
hereinafter defined), including without limitation, all amounts due and owing
to
the Bank and all obligations respecting that certain Seven Year Adjustable Term
Note, dated Feb.
15,
2005, by Northeast
Nominee
Trust in favor of the Bank in the original principal amount of $185,000.00 (the "Note";
and
collectively, along with all other agreements, documents, certificates and
instruments delivered in connection therewith, the "Loan Documents"), and any
substitutions, modifications, extensions or amendments to any of the Loan
Documents.
The
amount of principal obligations outstanding and evidenced by the Loan Documents
and secured by this Mortgage total $185,000.00 as of the date of
this Mortgage but this Mortgage shall nevertheless secure payment and
performance of all Obligations.
1.2
Security Interest
in
Property. As continuing security for the Obligations the
Mortgagor hereby pledges, assigns and grants to the Bank, and its successors
and
assigns, a security interest in any of the Property (as hereinafter defined)
constituting personal property or fixtures. This Mortgage is and shall be deemed
to be a security agreement and financing statement pursuant to the terms of
the
Uniform Commercial Code of Massachusetts (the "Uniform Commercial Code") as
to
any and all personal property and fixtures and as to all such property the
Bank
shall have the rights and remedies of a secured party under the Uniform
Commercial Code in addition to its rights hereunder. This Mortgage constitutes
a
financing statement filed as a fixture filing under Chapter 106. Section
9-502(c) of the Massachusetts General Laws of the Uniform Commercial Code
covering any Property which now is or later may become a fixture.
1.3
Collateral Assignment
of Leases and Rents. The Mortgagor hereby irrevocably and
unconditionally assigns to the Bank, and its successors and assigns, as
collateral security for the Obligations all of the Mortgagors rights and
benefits under any and all Leases (as hereinafter defined) and any and all
rents
and other amounts now or hereafter owing with respect to the Leases or the
use
or occupancy of the Property. This collateral assignment shall be absolute
and
effective immediately, but (he Mortgagor shall have a license, revocable by
the
Bank, to continue to collect rents owing under the Leases until an Event of
Default (as hereinafter defined) occurs and the Bank exercises its rights and
remedies to collect such rents as set forth herein.
1.5
Property. The
term "Property," as used in this Mortgage, shall mean that certain parcel of
land and the fixtures, structures and improvements and all personal property
constituting fixtures, as that term is defined in the Uniform Commercial Code,
now or hereafter thereon located at the Address(es), as more particularly
described in Exhibit A attached hereto, together with: (i) all rights now or
hereafter existing, belonging, pertaining or appurtenant thereto; (ii) the
following categories of assets as defined in the Uniform Commercial Code: goods
(including inventory, equipment and any accessions thereto), instruments
(including promissory notes), documents, accounts (including
health-care-insurance receivables), chattel paper (whether tangible or
electronic), deposit accounts, letter-of-credit rights (whether or not the
letter of credit is evidenced by a writing), commercial tort claims, securities
and all other investment property, general intangibles (including payment
intangibles and software), supporting obligations and any and all proceeds
of
any thereof, whether now owned or hereafter acquired, that are located on or
used In connection with, or that arise in whole or in part out of the
Mortgagor's use of or business conducted on or respecting, the Property and
any
substitutions, replacements, accessions and proceeds of any of the foregoing;
(iii) all judgments, awards of damages and settlements hereafter made as a
result or in lieu of any Taking, as hereinafter defined, (iv) all of the rights
and benefits of the Mortgagor under any present or future leases and agreements
relating to the Property, including, without limitation, rents, issues and
profits, or the use or occupancy thereof together with any extensions and
renewals thereof, specifically excluding all duties or obligations of the
Mortgagor of any kind arising thereunder (the "Leases"); and (v) all contracts,
permits and licenses respecting the use. operation or maintenance of the
Property.
1.6
Obligations. The
term "Obligation(s)," as used in this Mortgage, shall mean without limitation
all loans, advances, indebtedness, notes, liabilities and amounts, liquidated
or
unliquidated, now or hereafter owing by the Mortgagor to the Bank at any time,
of each and every kind, nature and description, whether arising under this
Mortgage or otherwise, and whether secured or unsecured, direct or indirect
(that is. whether the same are due directly by the Mortgagor to the Bank; or
are
due indirectly by the Mortgagor to the Bank as endorser, guarantor or other
surety, or as obligor of obligations due third persons which have been endorsed
or assigned to the Bank, or otherwise), absolute or contingent, due or to become
due, now existing or hereafter contracted, including, without limitation,
payment of all amounts outstanding when due pursuant to the terms of any of
the
Loan Documents. Said term shall also include all interest and other charges
chargeable to the Mortgagor or due from the Mortgagor to the Bank from time
to
time and all costs and expenses referred to in this Mortgage, including without
limitation the costs and expenses (including reasonable attorneys' fees) of
enforcement of the Bank's rights hereunder or pursuant to any document or
instrument executed in connection herewith.
1.7
Cross-Collateral
and
Future Advances. It is the express intention of the Mortgagor
that this Mortgage secure payment and performance of all of the Obligations,
whether now existing or hereinafter incurred by reason of future advances by
the
Bank or otherwise, and regardless of whether such Obligations are or were
contemplated by the parties at the time of the granting of this Mortgage. Notice
of the continuing grant of this Mortgage shall not be required to be stated
on
the face of any document evidencing any of the Obligations, nor shall such
documents be required to otherwise specify that they are secured
hereby.
2.
REPRESENTATIONS, WARRANTIES,
COVENANTS
2.1
Representations
and
Warranties. The Mortgagor represents and warrants
that:
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(a)
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This
Mortgage has been duly executed and delivered by the Mortgagor and
is the
legal, valid and binding obligation of the Mortgagor enforceable
in
accordance with its terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement
of
creditors' rights generally;
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(b)
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The
Mortgagor Is the sole legal owner of the Property, holding good and
marketable fee simple title to the Property, subject to no liens,
encumbrances, leases, security interests or rights of others, other
than
as set forth in detail in Exhibit B hereto (the "Permitted Encumbrances");
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(c)
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The
Mortgagor is the sole legal owner of the entire lessor’s interest in the
Leases with full power and authority to encumber the Property in
the
manner set forth herein and the Mortgagor has not executed any other
assignment of the Leases or any of the rights or rents arising thereunder;
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(d)
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As
of the date hereof, there are no Hazardous Substances (as hereinafter
defined) in, on or under the Property, except as disclosed in writing
to
and acknowledged by the Bank; and
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(e)
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Each
Obligation Is a commercial obligation and does not represent a loan
used
for personal, family or household purposes and is not a consumer
transaction or otherwise subject to the provisions of the Federal
Truth in
Lending Act, Federal Reserve Board Regulation Z. Massachusetts General
Laws, Chapter 140D, or other such consumer statutes or regulations
and
restrictions.
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2.2
Recording: Further
Assurances. The Mortgagor covenants that it shall, at its sole
cost and expense and upon the request of the Bank, cause this Mortgage, and
each
amendment, modification or supplement hereto, to be recorded and filed in such
manner and in such places, and shall at all times comply with all such statutes
and regulations as may be required by law in order to establish, preserve and
protect the Interest of the Bank in the Property and the rights of the Bank
under this Mortgage. Mortgagor will from time to time execute and deliver to
the
Bank, and take or cause to be taken, all such other further action as the Bank
may request in order to effect and confirm or vest more securely in the Bank
all
rights contemplated by this Mortgage or to vest more fully in, or assure to
the
Bank the security interest in, the Property or to comply with applicable statute
or law. To the extent permitted by applicable law, Mortgagor authorizes the
Bank
to file financing statements, continuation statements or amendments without
Mortgagor's signature appearing thereon, and any such financing statements,
continuation statements or amendments may be signed or authenticated by the
Bank
on behalf of Mortgagor, if necessary, and may be filed at any time In any
jurisdiction. The Bank may at any time and from time to time file financing
statements, continuation statements and amendments thereto that describe the
Property as "all assets of Mortgagor" or words of similar effect and which
contain any other information required by Article 9 of the Uniform Commercial
Code for the sufficiency or filing office acceptance of any financing statement,
continuation statement or amendment, including whether Mortgagor is an
organization, the type of organization and any organization identification
number issued to Mortgagor; Mortgagor also authorizes the Bank to file financing
statements describing any agricultural liens or other statutory liens held
by
the Bank. Mortgagor agrees to furnish any such information to the Bank promptly
upon request, fn addition, Mortgagor shall at any time and from time to time,
take such steps as the Bank may reasonably request for the Bank (i) to obtain
an
acknowledgement, in form and substance satisfactory to the Bank, of any bailee
having possession of any of the Property that the bailee holds such Property
for
the Bank, (ii) to obtain "control" of any investment property, deposit accounts,
letter-of-credit rights or electronic chattel paper (as such terms are defined
in Article 9 of the Uniform Commercial Code relating to what constitutes
"control" for such items of Property), with any agreements establishing control
to be in form and substance satisfactory to the Bank, and (iii) otherwise to
insure the continued perfection and priority of the Bank's security interest
in
any of the Property and the preservation of its rights therein. Mortgagor hereby
constitutes the Bank its attorney-in-fact to execute and file all filings
required or so requested for the foregoing purposes, all acts of such attorney
being hereby ratified and confirmed; and such power, being coupled with an
interest, shall be irrevocable until this Mortgage terminates in accordance
with
its terms, all Obligations are paid in full and the Property is
released.
2.3
Restrictions on
the
Mortgagor. The Mortgagor covenants that it will not, nor will
it permit any other person lo, directly or indirectly, without the prior written
approval of the Bank in each instance:
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(a)
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Sell,
convey, assign, transfer, mortgage, pledge, hypothecate, lease or
dispose
of all or any part of any legal or beneficial interest in the Mortgagor
or
the Property or any part thereof or permit any of the foregoing,
except as
expressly permitted by the terms of this Mortgage;
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(b)
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Permit
the use. generation, treatment, storage, release or disposition of
any oil
or other material or substance constituting hazardous waste or hazardous
materials or substances under any applicable Federal or state law,
regulation or rule ("Hazardous Substances"); or
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(c)
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Permit
lo be created or suffer to exist any mortgage, lien, security interest,
attachment or other encumbrance or charge on the Property or any
part
thereof or interest therein (except for the Permitted Encumbrances),
including, without limitation, (i) any lien arising under any Federal,
state or local statute, rule, regulation or law pertaining to the
release
or cleanup of Hazardous Substances and (ii) any mechanics' or
materialmen's lien. The Mortgagor further agrees to give the Bank
prompt
written notice of the imposition, or notice, of any lien referred
to in
this Section and to take any action necessary to secure the prompt
discharge or release of the same. The Mortgagor agrees to defend
its title
to the Property and the Bank's interest therein against the claims
of all
persons and, unless the Bank requests otherwise, to appear in and
diligently contest. all he Mortgagor's sole cost and expense, any
action
or proceeding that purports to affect the Mortgagor's title to the
Property or the priority or validity of this Mortgage or the Bank's
interest hereunder.
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2.4
Operation of
Property. The Mortgagor covenants and agrees as
follows:
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(a)
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The
Mortgagor will not permit the Property to be used for any unlawful
or
improper purpose, will at all times comply with all Federal, state
and
local laws, ordinances and regulations, and the provisions of any
Lease,
easement or other agreement affecting all or any part of the Property,
and
will obtain and maintain all governmental or other approvals relating
to
the Mortgagor, the Property or the use thereof, including without
limitation, any applicable zoning or building codes or regulations
and any
laws or regulations relating to the handling, storage, release or
cleanup
of Hazardous Substances, and will give prompt written notice to the
Bank
of (i) any violation of any such law. ordinance or regulation by
the
Mortgagor or relating to the Property, (ii) receipt of notice from
any
Federal, state or local authority alleging any such violation and
(iii)
the presence or release on the Property of any Hazardous Substances;
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(b)
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The
Mortgagor will at all times keep the Property insured for such losses
or
damage, in such amounts and by such companies as may be required
by law or
which the Bank may require, provided that, in any case, the Mortgagor
shall maintain: (i) physical hazard insurance on an "all risks" basis
in
an amount not less than 100% of the full replacement cost of the
Property;
(ii) flood insurance if and as required by applicable Federal law
and as
otherwise required by the Bank; (iii) comprehensive commercial general
liability insurance; (iv) rent loss and business interruption insurance;
and (v) such other insurance as the Bank may require from time to
time,
including builder's risk insurance in the case of construction loans.
All
policies regarding such insurance shall be issued by companies licensed
to
do business in the state where the policy is issued and also in the
slate
where the Property is located, be otherwise acceptable to the Bank,
provide deductible amounts acceptable to the Bank, name the Bank
as
mortgagee, loss payee and additional insured, and provide that no
cancellation or material modification of such policies shall occur
without
at least thirty (30) days' prior written notice to the Bank. Such
policies
shall Include (i) a mortgage endorsement determined by the Bank in
good
faith to be equivalent to the "standard" mortgage endorsement so
that the
insurance, as to the interest of the Bank, shall not be invalidated
by any
act or neglect of the Mortgagor or the owner of the Property, any
foreclosure or other proceedings or notice of sale relating to the
Property, any change in the title to or ownership of the Property,
or the
occupation or use of the Property for purposes more hazardous than
are
permitted at the date of inception of such insurance policies; (ii)
a
replacement cost endorsement; (iii) an agreed amount endorsement;
(iv) a
contingent liability from operation endorsement; and (v) such other
endorsements as the Bank may request. The Mortgagor will furnish
to the
Bank upon request such original policies, certificates of insurance
or
other evidence of the foregoing as are acceptable to the Bank. The
terms
of all insurance policies shall be such that no coinsurance provisions
apply, or if a policy does contain a coinsurance provision, the Mortgagor
s hall insure t he Property in an amount sufficient to prevent the
application of the coinsurance provisions;
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(c)
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Mortgagor
will not enter into or modify the Leases without the prior written
consent
of the Bank, execute any assignment of the Leases except in favor
of the
Bank, or accept any rentals under any Lease for more than one month
in
advance and will at all times perform and fulfill every term and
condition
of the Leases;
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(d)
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Mortgagor
will at all times (i) maintain complete and accurate records and
books
regarding the Property in accordance with generally accepted accounting
principles and (ii) permit the Bank and the Bank's agents, employees
and
representatives, at such reasonable times as the Bank may request,
to
enter and inspect the Property and such books and records; and
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(e)
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Mortgagor
will at all times keep the Property in good and first-rate repair
and
condition (damage from casualty not excepted) and will not commit
or
permit any strip, waste, impairment, deterioration or alteration
of the
Property or any part thereof.
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2.5
Payments. The
Mortgagor covenants to pay when due: all Federal, state, municipal or other
taxes, betterment and improvement assessments and other governmental levies,
water rates, sewer charges, insurance premiums and other charges on the
Property, this Mortgage or any Obligation secured hereby that could, if unpaid,
result in a lien on the Property or on any interest therein. If and when
requested by the Bank, the Mortgagor shall deposit from time to time with the
Bank sums determined by the Bank to be sufficient to pay when due the amounts
referred to in this Section. The Mortgagor shall have the right to contest
any
notice, lien, encumbrance, claim, tax, charge, betterment assessment or premium
filed or asserted against or relating to the Property, provided that it contests
the same diligently and in good faith and by proper proceedings and, at the
Bank's request, provides the Bank with adequate cash security, in the Bank's
reasonable judgment, against the enforcement thereof. The Mortgagor shall
furnish to the Bank the receipted real estate tax bills or other evidence of
payment of real estate taxes for the Property within thirty (30) days prior
to
the date from which interest or penalty would accrue for nonpayment thereof.
The
Mortgagor shall also furnish to the Bank evidence of all other payments referred
to above within fifteen (15) days after written request therefor by the
Bank.
2.6
Notices; Notice
of
Default. The Mortgagor will deliver to the Bank, promptly upon
receipt of the same, copies of all notices or other documents it receives that
affect the Property or its use, or claim that the Mortgagor is in default in
the
performance or observance of any of the terms hereof or that the Mortgagor
or
any tenant is in default of any terms of the Leases. The Mortgagor further
agrees to deliver to the Bank written notice promptly upon the occurrence of
any
Event of Default hereunder or event that with the giving of notice or lapse
of
time, or both, would constitute an Event of Default hereunder.
2.7
Takings. In
case of any condemnation or expropriation for public use of, or any damage
by
reason of the action of any public or governmental entity or authority to,
all
or any part of the Property (a "Taking"), or the commencement of any proceedings
or negotiations that might result in a Taking, the Mortgagor shall promptly
give
written notice to the Bank, describing the nature and extent thereof. The Bank
may, at its option, appear in any proceeding for a Taking or any negotiations
relating to a Taking and the Mortgagor shall promptly give to the Bank copies
of
all notices, pleadings, determinations and other papers relating thereto. The
Mortgagor shall in good faith and with due diligence and by proper proceedings
file and prosecute its claims for any award or payment on account of any Taking.
The Mortgagor shall not settle any such claim without the Bank's prior written
consent. The Mortgagor shall hold any amounts received with respect to such
awards or claims, by settlement, judicial decree or otherwise, in trust for
the
Bank and promptly pay the same to the Bank. The Mortgagor authorizes any award
or settlement due in connection with a Taking to be paid directly to the Bank
in
amounts not exceeding the Obligations. The Bank may apply such amounts to the
Obligations in such order as the Bank may determine.
2.8
Insurance
Proceeds. The proceeds of any insurance resulting from any
loss with respect to the Property shall be paid to the Bank and. at the option
of the Bank, be applied to the Obligations in such order as the Bank may
determine; provided, however, that if the Bank shall require repair of the
Property, the Bank may release all or any portion of such proceeds to the
Mortgagor for such purpose. Any insurance proceeds paid to the Mortgagor shall
be held in trust for the Bank and promptly paid to it.
3.
CERTAIN
RIGHTS OF THE
BANK
3.1
Legal
Proceedings. The Bank shall have the right, but not the duty,
to intervene or otherwise participate in any legal or equitable proceeding
that,
in the Bank's reasonable judgment, might affect the Property or any of the
rights created or secured by this Mortgage. The Bank shall have such right
whether or not there shall have occurred an Event of Default
hereunder.
3.2
Appraisals/Assessments. The
Bank shall have the right, at the Mortgagor's sole cost and expense, to obtain
appraisals, environmental site assessments or other inspections of the portions
of the Property that are real estate at such times as the Bank deems necessary
or as may be required by applicable law, or its prevailing credit or
underwriting policies.
3.3
Financial
Statements. The Bank shall have the right, at the Mortgagor's
sole cost and expense, to require delivery of financial statements in form
and
substance acceptable to the Bank from the Mortgagor or any guarantor of any
of
the Obligations and the Mortgagor hereby agrees to deliver such financial
statements and/or cause any such guarantor lo so deliver any such financial
statement when required by the Bank.
3.4
Tax
Return. The Mortgagor shall deliver to the Bank on or before
May 1 of each year or such other date approved by the Bank, the Mortgagor's
filed Federal and any applicable state tax returns for the prior
year.
3.5
Leases and Rent
Roll. The Mortgagor shall deliver to the Bank during each
calendar year and at such other times as the Bank shall request a rent roll
for
the Property, in form acceptable to the Bank, listing all tenants and occupants
and describing all of the Leases.
4.
DEFAULTS AND REMEDIES
4.1
Events of
Default. Event of Default shall mean the occurrence of any one
or more of the following events:
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(a)
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default
of any liability, obligation or undertaking of the Mortgagor or any
guarantor of the Obligations to the Bank, hereunder or otherwise,
including failure to pay in full and when due any installment of
principal
or interest or default of the Mortgagor or any guarantor of the
Obligations under any other Loan Document;
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(b)
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failure
by the Mortgagor to perform, observe or comply with any of the covenants,
agreements, terms or conditions set forth in this Mortgage;
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(c)
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the
(i) occurrence of any material loss, theft, damage or destruction
of. or
(ii) issuance or making of any levy, seizure, attachment, execution
or
similar process on a material portion of the Property;
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(d)
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failure
of the Mortgagor or any guarantor of the Obligations to maintain
aggregate
collateral security value satisfactory to the Bank;
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(e)
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default
of any material liability, obligation or undertaking of the Mortgagor
or
any guarantor of the Obligations to any other party;
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(f)
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if
any statement, representation or warranty heretofore, now or hereafter
made by the Mortgagor or any guarantor of the Obligations in connection
with this Mortgage or in any supporting financial statement of the
Mortgagor or any guarantor of the Obligations shall be determined
by the
Bank to have been false in any material respect when made;
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(g)
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if
the Mortgagor or any guarantor of the Obligations is a corporation,
trust,
partnership or limited liability company, the liquidation, termination
or
dissolution of any such organization, or the merger or consolidation
of
such organization into another entity, or its ceasing to carry on
actively
its present business or the appointment of a receiver for its property;
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(h)
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the
death of the Mortgagor or any guarantor of the Obligations and, if
the
Mortgagor or any guarantor of the Obligations is a partnership or
limited
liability company, the death of any partner or member;
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(i)
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the
institution by or against the Mortgagor or any guarantor of the
Obligations of any proceedings under the Bankruptcy Code 11 USC §101 et seq. or any
other
law in which the Mortgagor or any guarantor of the Obligations is
alleged
to be insolvent or unable to pay its debts as they mature, or the
making
by the Mortgagor or any guarantor of the Obligations of an assignment
for
the benefit of creditors or the granting by the Mortgagor or any
guarantor
of the Obligations of a trust mortgage for the benefit of creditors;
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(j)
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the
service upon the Bank of a writ in which the Bank is named as trustee
of
the Mortgagor or any guarantor of the Obligations;
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(k)
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a
judgment or judgments for the payment of money shall be rendered
against
the Mortgagor or any guarantor of the Obligations, and any such judgment
shall remain unsatisfied and in effect for any period of thirty (30)
consecutive days without a stay of execution;
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(l)
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any
xxxx, xxxx (including mechanics lien), seizure, attachment, execution
or
similar process shall be issued or levied on any of the property
of the
Mortgagor or any guarantor of the Obligations;
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(m)
the termination of any guaranty of the Obligations; or
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(n)
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the
occurrence of such a change in the condition or affairs (financial or
otherwise) of the Mortgagor or any guarantor of the Obligations,
or the
occurrence of any other event or circumstance, such that the Bank,
in its
sole discretion, deems that it is insecure or that the prospects
for
timely or full payment or performance of any obligation of the Mortgagor
or any guarantor of the Obligations to the Bank has been or may be
impaired.
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4.2
Remedies. On
the occurrence of any Event of Default the Bank may, at any time thereafter,
at
its option and, to the extent permitted by applicable law, without notice,
exercise any or all of the following remedies:
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(a)
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Declare
the Obligations due and payable, and the Obligations shall thereupon
become immediately due and payable, without presentment, protest,
demand
or notice of any kind, all of which are hereby expressly waived by
the
Mortgagor except for Obligations due and payable on demand, which
shall be
due and payable on demand whether or not an event of default has
occurred
hereunder;
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(b)
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Enter,
take possession of, manage and operate the Property (including all
personal property and all records and documents pertaining thereto)
and
any part thereof and exclude the Mortgagor therefrom, take all actions
it
deems necessary or proper to preserve the Property and operate the
Property as a mortgagee in possession with all the powers as could
be
exercised by a receiver or as otherwise provided herein or by applicable
law; provided, however, the entry by the Bank upon the Property for
any
reason shall not cause the Bank to be a mortgagee in possession,
except
upon the express written declaration of the Bank;
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(c)
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With
or without taking possession, receive and collect all rents, income,
issues and profits ("Rents") from the Property (including all real
estate
and personal property and whether past due or thereafter accruing),
including as may arise under the Leases, and the Mortgagor appoints
the
Bank as its true and lawful attorney with the power for the Bank
in its
own name and capacity to demand and collect Rents and take any action
that
the Mortgagor is authorized to take under the Leases. The Bank shall
(after payment of all costs and expenses incurred) apply any Rents
received by it to the Obligations in such order as the Bank determines,
or
in accordance with any applicable statute, and the Mortgagor agrees
that
exercise of such rights and disposition of such funds shall not be
deemed
to cure any default or constitute a waiver of any foreclosure once
commenced nor preclude the later commencement of foreclosure for
breach
thereof. The Bank shall be liable to account only for such Rents
actually
received by the Bank. Lessees under the Leases are hereby authorized
and
directed, following notice from the Bank, to pay all amounts due
the
Mortgagor under the Leases to the Bank, whereupon such lessees shall
be
relieved of any and all duty and obligation to the Mortgagor with
respect
to such payments so made;
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(d)
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Sell
the Property or any part thereof or interest therein pursuant to
exercise
of its STATUTORY POWER OF SALE or otherwise at public auction on
terms and
conditions as the Bank may determine, or otherwise foreclose this
Mortgage
in any manner permitted by law. and upon such sale the Mortgagor
shall
execute and deliver such instruments as the Bank may request in order
to
convey and transfer all of the Mortgagor's interest in the Property,
and
the same shall operate to divest all rights, title and interest of
the
Mortgagor in and to the Property. In the event this Mortgage shall
include
more than one parcel of property or subdivision (each hereinafter
called a
"portion"), the Bank shall, in its sole and exclusive discretion,
be
empowered to foreclose upon any such portion without impairing its
right
to foreclose subsequently upon any other portion or the entirety
of the
Property from time to time thereafter. I n addition, the Bank may
in its
discretion subordinate this Mortgage to one or more Leases for the
sole
purpose of preserving any such Lease in the event of a foreclosure;
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(e)
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Cause
one or more environmental assessments to be taken, arrange for the
cleanup
of any Hazardous Substances or otherwise cure the Mortgagor's failure
to
comply with any statute, regulation or ordinance relating to the
presence
or cleanup of Hazardous Substances, and the Mortgagor shall provide
the
Bank or its agents with access to the Property for such purposes;
provided
that the exercise of any of such remedies shall not be deemed to
have
relieved the Mortgagor from any responsibility therefor or given
the Bank
"control" over the Property or cause the Bank to be considered to
be a
mortgagee in possession, "owner" or "operator" of the Property for
purposes of any applicable law, rule or regulation pertaining to
Hazardous
Substances; and
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Take
such other actions or proceedings as the Bank deems necessary or
advisable
to protect its interest in the Property and ensure payment and performance
of the Obligations, including, without limitation, appointment of
a
receiver (and the Mortgagor hereby waives any right to object to
such
appointment) and exercise of any of the Bank's remedies provided
herein or
in any other document evidencing, securing or relating to any of
the
Obligations or available to a secured party under the Uniform Commercial
Code or under other applicable law.
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This
Mortgage is upon the STATUTORY CONDITION, for any breach of which the Bank
shall
have the STATUTORY POWER OF SALE.
In
addition, the Bank shall have all other remedies provided by applicable law,
including, without limitation, the right to pursue a judicial sale of the
Property or any portion thereof by deed, assignment or otherwise.
The
Mortgagor agrees and acknowledges that the acceptance by the Bank of any
payments from either the Mortgagor or any guarantor after the occurrence of
any
Event of Default, the exercise by the Bank of any remedy set forth herein or
the
commencement, discontinuance or abandonment of foreclosure proceedings against
the Property shall not waive the Bank's subsequent or concurrent right to
foreclose or operate as a bar or estoppel to the exercise of any other rights
or
remedies of the Bank. The Mortgagor agrees and acknowledges that the Bank,
by
making payments or incurring costs described herein, shall be subrogated to
any
right of the Mortgagor to seek reimbursement from any third parties, including,
without limitation, any predecessor in interest to the Mortgagor's title or
other party who may be responsible under any law, regulation or ordinance
relating to the presence or cleanup of Hazardous Substances.
4.3
Advances. If
the Mortgagor fails to pay or perform any of its obligations respecting the
Property, the Bank may in its sole discretion do so without waiving or releasing
Mortgagor from any such obligation. Any such payments may include, but are
not
limited to, payments for taxes, assessments and other governmental levies,
water
rates, insurance premiums, maintenance, repairs or improvements constituting
part of the Property. Any amounts paid by the Bank hereunder shall be, until
paid, part of the Obligations and secured by this Mortgage, and shall be due
and
payable to the Bank, on demand, together with interest thereon to the
extent permitted by applicable law, at the highest rate permitted under the
Note.
4.4
Cumulative Rights
and
Remedies. All of the foregoing rights, remedies and options
(including without limitation the right to enter and take possession of the
Property, the right to manage and operate the same, and the right to collect
Rents, in each case whether by a receiver or otherwise) are cumulative and
in
addition to any rights the Bank might otherwise have, whether at law or by
agreement, and may be exercised separately or concurrently and none of which
shall be exclusive of any other. The Mortgagor further agrees that the Bank
may
exercise any or all of its rights or remedies set forth herein without having
to
pay the Mortgagor any sums for use or occupancy of the Property.
4.5
Mortgagor's Waiver
of
Certain Rights. To the extent permitted by applicable law, the
Mortgagor hereby waives the benefit of all present and future laws (i) providing
for any appraisal before sale of all or any portion of the Property or (ii)
in
any way extending the time for the enforcement of the collection of the
Obligations or creating or extending a period of redemption from any sale made
hereunder.
5.
MISCELLANEOUS
5.1
Costs and
Expenses. To the extent permitted by applicable law, the
Mortgagor shall pay to the Bank, on demand, all reasonable expenses (including
attorneys' fees and expenses and reasonable consulting, accounting, appraisal,
brokerage and similar professional fees and charges) incurred by the Bank in
connection with the Bank's interpretation, exercise, preservation or enforcement
of any of its rights, remedies and options set forth in this Mortgage and in
connection with any litigation, proceeding or dispute whether arising hereunder
or otherwise relating to the Obligations, together with interest thereon to
the
extent permitted by applicable law, until paid in full by the Mortgagor at
the
highest rate set forth in the Note. Any amounts owed by the Mortgagor hereunder
shall be, until paid, part of the Obligations and secured by this Mortgage,
and
the Bank shall be entitled, to the extent permitted by law. to receive and
retain such amounts in any action for a deficiency against or redemption by
the
Mortgagor, or any accounting for the proceeds of a foreclosure sale or of
insurance proceeds.
5.2
Indemnification
Regarding Leases. The Mortgagor hereby agrees to defend, and
does hereby indemnify and hold the Bank and each of its directors, officers,
employees, agents and attorneys (each an "Indemnitee") harmless from all losses,
damages, claims, costs or expenses (including attorneys' fees and expenses)
resulting from the assignment of the Leases and from all demands that may be
asserted against such Indemnitees arising from any undertakings on the part
of
the Bank to perform any obligations under the Leases. It is understood that
the
assignment of the Leases shall not operate to place responsibility for the
control or management of the Property upon the Bank or any Indemnitee or make
them liable for performance of any of the obligations of the Mortgagor under
Leases, respecting any condition of the Property or any other agreement or
arrangement, written or oral, or applicable law.
5.3
Indemnification
Regarding Hazardous Substances. The Mortgagor hereby agrees to
defend, and does hereby indemnify and hold harmless each Indemnitee from and
against any and all losses, damages, claims, costs or expenses, including,
without limitation, litigation costs and attorneys' fees and expenses and fees
or expenses of any environmental engineering or cleanup firm incurred by such
Indemnitee and arising out of or in connection with the Property or resulting
from the application of any current or future law, regulation or ordinance
relating to the presence or cleanup of Hazardous Substances on or affecting
the
Property. The Mortgagor agrees its obligations hereunder shall be continuous
and
shall survive termination or discharge of this Mortgage and/or the repayment
of
all debts to the Bank including repayment of all Obligations.
5.4
Indemnitee's
Expenses. If any Indemnitee is made a party defendant to any
litigation or any claim is threatened or brought against such Indemnitee
concerning this Mortgage or the Property or any part thereof or therein or
concerning the construction, maintenance, operation or the occupancy or use
thereof by the Mortgagor or other person or entity, then the Mortgagor shall
indemnify, defend and hold each Indemnitee harmless from and against all
liability by reason of said litigation or claims, including attorneys' fees
and
expenses incurred by such Indemnitee in connection with any such litigation
or
claim, whether or not any such litigation or claim is prosecuted to judgment.
The within indemnification shall survive payment of the Obligations, and/or
any
termination, release or discharge executed by the Bank in favor of the
Mortgagor.
5.5
Waivers. The
Mortgagor waives notice of nonpayment, demand, presentment, protest or notice
of
protest o f t he Obligations and all other notices, consents to any renewals
or
extensions of time of payment thereof, and generally waives any and all
suretyship defenses and defenses in the nature thereof. No delay or omission
of
the Bank in exercising or enforcing any of its rights, powers, privileges,
remedies, immunities or discretion (all of which are hereinafter collectively
referred to as "the Bank's rights and remedies") hereunder shall constitute
a
waiver thereof; and no waiver by the Bank of any default of the Mortgagor
hereunder or of any demand shall operate as a waiver of any other default
hereunder or of any other demand. No term or provision hereof shall be waived,
altered or modified except with the prior written consent of the Bank, which
consent makes explicit reference to this Mortgage. Except as provided in
the preceding sentence, no other agreement or transaction, of whatsoever nature,
entered into between the Bank and the Mortgagor at any time (whether before,
during or after the effective date or term of this Mortgage) shall be construed
as a waiver, modification or limitation of any of the Bank's rights and remedies
under this Mortgage (nor shall anything in this Mortgage be construed as a
waiver, modification or limitation of any of the Bank's rights and remedies
under any such other agreement or transaction) but all the Bank's rights and
remedies not only under the provisions of this Mortgage but also under any
such
other agreement or transaction shall be cumulative and not alternative or
exclusive, and may be exercised by the Bank at such time or times and in such
order of preference as the Bank in its sole discretion may
determine.
5.6
Waiver of
Homestead. To the maximum extent permitted under applicable
law, the Mortgagor hereby waives and terminates any homestead rights and/or
exemptions respecting the Property under the provisions of any applicable
homestead laws, including without limitation. Chapter 188, Section 1, of the
General Laws of Massachusetts.
5.7
Severability. If
any provision of this Mortgage or portion of such provision or the application
thereof to any person or circumstance shall to any extent be held Invalid or
unenforceable, the remainder of this Mortgage (or the remainder of such
provision) and the application thereof to other persons or circumstances shall
not be affected thereby.
5.8
Complete
Agreement. This Mortgage and the other Loan Documents
constitute the entire agreement and understanding between and among the parties
hereto relating to the subject matter hereof, and supersedes all prior
proposals, negotiations, agreements and understandings among the parties hereto
with respect to such subject matter.
5.9
Binding Effect of
Agreement. This Mortgage shall run with the land and be
binding upon and inure to the benefit of the respective heirs, executors,
administrators, legal representatives, successors and assigns of the parties
hereto, and shall remain in full force and effect (and the Bank shall be
entitled to rely thereon) until all Obligations are fully and indefeasibly
paid.
The Bank may transfer and assign this Mortgage and deliver any collateral to
t
he assignee, who shall thereupon have all of the rights of the Bank; and the
Bank shall then be relieved and discharged of any responsibility or liability
with respect to this Mortgage and such collateral. Except as expressly provided
herein or in the other Loan Documents, nothing, expressed or implied, is
intended to confer upon any party, other than the parties hereto, any rights,
remedies, obligations or liabilities under or by reason of this Mortgage or
the
other Loan Documents.
5.10
Notices. Any
notices under or pursuant to this Mortgage shall be deemed duly received and
effective if delivered in hand to any officer of agent of the Mortgagor or
the
Bank, or if mailed by registered or certified mail, return receipt requested,
addressed to the Mortgagor or the Bank at the address set forth in this Mortgage
or as any party may from time to time designate by written notice to the other
party.
5.11
Governing
Law. This Mortgage shall be governed by Massachusetts law
without giving effect to the conflicts of laws principles thereof.
5.12
Reproductions. This
Mortgage and all documents which have been or may be hereinafter furnished
by
the Mortgagor to the Bank may be reproduced by the Bank by any photographic,
photostatic, microfilm, xerographic or similar process, and any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made in the regular course
of
business).
5.13
Jurisdiction and
Venue. The Mortgagor irrevocably submits to the nonexclusive
jurisdiction of any Federal or state court sitting in Massachusetts, over any
suit, action or proceeding arising out of or relating to this Mortgage. The
Mortgagor irrevocably waives, to the fullest extent it may effectively do so
under applicable law, any objection it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding brought in any such court
and any claim that the same has been brought in an inconvenient forum. The
Mortgagor hereby consents to process being served in any such suit, action
or
proceeding (i) by the mailing of a copy thereof by registered or certified
mail,
postage prepaid, return receipt requested, to the Mortgagor's address set forth
herein or such other address as has been provided in writing to the Bank and
(ii) in any other manner permitted by law, and agrees that such service shall
in
every respect be deemed effective service upon the Mortgagor.
5.14
JURY
WAIVER. THE MORTGAGOR
AND THE BANK EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND AFTER
AN
OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, (A) WAIVE ANY AND ALL RIGHTS TO
A
TRIAL BY JURY IN ANY ACTION ORPROCEEDING IN CONNECTION
WITH THIS
MORTGAGE, THE OBLIGATIONS, ALL MATTERS CONTEMPLATED HEREBY AND DOCUMENTS
EXECUTED IN CONNECTION HEREWITH AND (B) AGREE NOT TO CONSOLIDATE ANY SUCH ACTION
WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CAN NOT BE, OR HAS NOT BEEN WAIVED.
THE MORTGAGOR CERTIFIES THAT NEITHERTHE BANK NOR ANY OF
ITS
REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED,EXPRESSLY OR OTHERWISE,
THAT THE BANK
WOULD NOT IN THE EVENT OF ANY SUCHPROCEEDING SEEK TO
ENFORCE THIS
WAIVER OF RIGHT TO TRIAL BY JURY.
EXECUTED
under seal as of the date first above written.
Witness:
Mortgagor:
/s/
Xxxxxx X.
Xxxxx /s/ Xxxxx
X.
Xxxxxxx
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Xxxxxx
X. Xxxxx
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Xxxxx
X. Xxxxxxx, Trustee of Northeast
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Nominee Trust
STATE
OF
Massachusetts
HAMPDEN,
SS.
February 15, 2005
On
this 15th
day of February
, 2005,
before me, the undersigned notary public, personally appeared Xxxxx X. Xxxxxxx, as trustee
of Northeast Nominee
Trust, proved to me
through
satisfactory evidence of identification, which were Ma. drivers license,
to be the person whose name is signed on the preceding or attached document,
and
acknowledged to me that Northeast Nominee Trust and
Xxxxx
X. Xxxxxxx signed
it voluntarily for its stated purpose, as trustee of such trust.
/s/
Xxxxxx X. Xxxxx,
NOTARY PUBLIC
MY
COMMISSION EXPIRES: May 13,
2005
Xxxxxx
X. Xxxxx
TYPE OR PRINT NAME
EXHIBIT
A
The
land
with in Chicopee situated on the Southerly side of Front Street and bounded
and
described as follows:
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SOUTHEASTERLY
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on
said land now or formerly of Xxxxx, two Hundred twenty-three (223)
feet,
more or less, to land formerly of Xxxxxx X. Xxxxxxx, now or formerly
of
Xxxxxx Xxxxx; thence
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WESTERLY
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on
last-named land, forty-nine (49) feet to land now or formerly of
Xxxxxx X.
Xxxxxx; thence
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NORTHERLY
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on
said Front Street, fifty- six (56) feet to the point of beginning.
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Being
the
same premises conveyed to it by deed of Xxxxx and Xxx Xxxxxxxx dated February
14, 2005 and recorded in Hampden County Registry of Deeds just prior
hereto.
XXXXXX
X. XXXX, REGISTER
HAMPDEN
COUNTY REGISTRY OF DEEDS
