BIOENGINEERING GROUP LOAN MODIFICATION AGREEMENT River Wharf-Realty Trust 2014
Recap Request
SECOND LOAN MODIFICATION AGREEMENT
DATED: JANUARY 15, 2013
This Second Loan Modification Agreement("Agreement") is made this 15TH day of January,
2013 between River Wharf Realty Trust("Borrower")The Bioengineering Group, Inc.
("Borrower's Affiliate/Loan Guarantor"), the City of Salem having a usual place of business at
120 Washington Street, Salem, Essex County, Massachusetts (hereinafter the "Lender") and
Wendi Goldsmith of Manchester, Massachusetts individually("Individual Guarantor"),
collectively hereinafter referred to as the "Parties". This Agreement amends and supplements a
Loan Agreement, a the Borrower's Note for$ 200,925.00, a Mortgage and Security Agreement,
the Affiliate's Guaranty and Wendi Goldsmith's Personal Guaranty, all entered into and
executed by the Parties and dated December 15, 2009, as subsequently amended by a Loan
Modification Agreement dated April 12, 2010. These documents, collectively are referred to
hereinafter as the "Loan and Security Documents."
It is agreed by the Parties that the principal balance outstanding as of the date of this Agreement,
and including the additional funds advanced hereunder is $ 197,549.84, and that all of the Loan
and Security Documents remain in full force and effect as of this date, and will so remain after
the execution of this Agreement.
At the collective request of the Borrower, the Borrower's Affiliate, the Loan Guarantor and the
Personal Guarantor that the Lender(City of Salem) advance and loan to the Borrower an
additional Seventy-Five Thousand Nine Hundred and Twenty-Five Dollars ($ 75,925.00) for
purposes allowed under the Loan Agreement and Loan Modification Agreement, and in
consideration of the agreement of the Lender to lend and advance such additional funds, the
Parties further agree as follows:
1. The Lender shall advance an additional Seventy-Five Thousand Nine Hundred and
Twenty-Five Dollars ($ 75,925.00) to the Borrower under the Note, as amended by the
Allonge to Promissory Note dated January 15, 2013, executed by the Borrower and
Lender, and physically attached to said Note;
2. The Parties hereby agree this advance of additional loan funds to the Borrower is, and
shall continue to be, secured by the existing Loan and Security Documents as referenced
above, all of which remain in full force and effect;
3. The Parties all represent that they are authorized to execute this Agreement, any and all
such documents as the Lender may require to effectuate this additional loan; and
4. Nothing in this Second Loan Modification Agreement shall be understood or construed to
be a satisfaction or release, in whole or in part, of the original obligations under the Loan
and Security Documents.
Signed and seated this day of January, 2013.
River Wharf Realty Trust by
�)hAl V'C'�
Wei;dl Goldsmith, Trustee
The Bioengincering Grou Inc., by
Wen�riGoldsmith, Preside t
Wendi Goldsmith, Individually
City of Salem
Plannin and Community Development
y G. Duncan
irector
TINTI, QUINN� GROVER & FREY, P.C.
27 CONGRESS STREET,SUITE 414
WILLIAM J.TINTI SALEM,MASSACHUSETTS 01970
tinti@tintila�.com
WILLIAM F.QUINN TELEPHONE WILLIAM B.ARDIFF(1965. 1995)
WilliamFQuinn@aol.com (978)745�8065 - (978)744-2948 MARCIA MULFORD CINI
SCOTT M.GROVER - OF COUNSEL
smgrover@tintilaw.com TELECOPIER JOHN D.KEENAN
MARC P. FREY (978)745-3369 OF COUNSEL
www.tintilaw.com
�pfrey@tintilaw.com
JONATHAN M.OFILOS
jofilos@tintilaw.com
THOMAS J. HOGAN
tihogan@tintilaw.com
A
01/17/2013
Tom Daniel
Department of Development and Community Planning
City of Salem
120 Washington Street
Salem, MA 01970
RE: Loan Modification for River Wharf Realty Trust
FOR PROFESSIONAL SERVICES: $ 925.00
William F. Quinn fee for review and conferences with
Community Development Department regarding refinancing loan
to above-named borrower, including review of existing loan
documents, phone and email communications with Tom Daniel;
check corporate existence with Dept. of Corporations; check
Registry for updated trust documents; prepare and circulate Loan
Modification Agreement with River Wharf Realty Trust and
associated Allonge to Note; review and send amortization figures;
phone conference with Tom on final figures; edit and issue final
version of documents on expedited schedule.
WFQ
File 7145-1
Return to:
City of Salem 2004031500300 Bko:()22�Tl�Zg:464
Department of Planning and Community Development
120 Washington Street
Salem,MA 01970
MORTGAGE AND SECURITY AGREEMENT
Robertl.o oIomon, Trustee of River Wharf Realty Trust u/d/t dated June 30, 1999 (Recorded
with Essex South District Registry of Deeds in Book 15780, Page 107), of IS Commercial Street,
Salem, Essex County, Massachusetts, hereinafter referred to as the "Mortgagor", FOR
CONSIDERATION PAID HEREBY GRANTS to The City of Salem, Planning and Community
Development, 120 Washington Street, Salem, Massachusetts, hereinafter referred to as the
"Mortgagee", with MORTGAGE COVENANTS, to secure the payment of One Hundred Thirtv-Five
Thousand Nine Hundred Twenty-Five and 00/100 Dollars ($135,925.00) on or before April 1,
2014, with interest thereon, as provided in the Mortgagor's note of even date including all
extensions, renewals and modifications thereof, or as provided in Mortgagor's guaranty of even
date, to secure the performance of, or payment to the Mortgagee pursuant to all covenants and
agreements herein and in said note or guaranty contained, and to secure payment of or
performance of all other debts, covenants and agreements of or by the Mortgagor to or for the
benefit of the Mortgagee now existing or hereafter accruing while this mortgage is still
undischarged or record, the land in Salem, MA as described in Exhibit "A" annexed hereto, which
is incorporated herein by this reference, together with any and all improvements now or hereafter
situated thereon.
Also, the Mortgagor hereby grants to the Mortgagee a security interest in all equipment (as
defined in the Uniform Commercial Code), appliances, furnishings and fixtures now or hereinafter
placed on the above described premises, or used in connection therewith, and the proceeds
therefrom, and agrees to execute on demand of the Mortgagee all instruments necessary to perfect
or continue such security interest, and in the event of default hereunder the Mortgagor hereby
grants the Mortgagee full power and authority as attorney irrevocable of the Mortgagor to execute,
deliver and record and/or file such instruments. This Agreement is intended to take effect as a
security agreement and is to be filed with Essex South District Registry of Deeds in lieu of a
financing statement pursuant to Massachusetts General Laws Chapter 106, Section 9-402.
Said land, improvements, appliances, furnishings and fixtures are hereinafter referred to as
the "premises."
The Mortgagor hereby covenants and agrees to the following as conditions of this
mortgage: I
(1) To perform all of the covenants and agreements contained in said note or guaranty;
(2) To pay at least ten (10) days before due all taxes, charges for water, sewer and
other municipal services, and assessments, whether or not assessed against the Mortgagor, if
applicable or related in any way to the premises, or any interest of the Mortgagor, the Mortgagee,
or any other person or organization therein, or the debt, obligations or performance secured
hereby, or the disbursement or application of the proceeds therefrom, excluding, however, any
income or corporation excise tax of the Mortgagor; on the demand of the Mortgagee to pay to the
Mortgagee on each day that payments are required by the terms of the note secured hereby, in
addition to the payments of principal and/or interest provided in said note, a sum equal to such
fraction of the real estate taxes, charges and betterment assessments for each year as shall be
estimated by the Mortgagee to be sufficient for the Mortgagee to provide in the aggregate, a sum N
equal to said taxes, charges and assessments as and when they become due and payable, and in
addition to pay to the Mortgagee any balance necessary to account in full for the amount of said
taxes, charges and assessments prior to the date when they become due and payable; it being
understood and agreed that such sums shall not bear interest and may be commingled with the
general assets of the Mortgagee, that the Mortgagee shall not be required to account for any profits
resulting from its use thereof, and that said sums are held by the Mortgagee for payment on
account of such taxes, charges and assessments and/or any other obligations of the Mortgagor
hereunder; to forward to the Mortgagee receipted real estate' tax bills as soon as the same have
been paid by the Mortgagor or, in case tax payments are required to be made to the Mortgagee, to
forward to the Mortgagee real estate tax bills as soon as the same have been received by the
Mortgagor;
(3) To keep the premises insured against fire and all such other casualties and
contingencies as the Mortgagee may from time to time require; to deposit at the demand of the
Mortgagee all insurance policies or memorandum thereof with the Mortgagee forthwith after the
bind of such insurance, and to deliver to the Mortgagee new policies or memoranda thereof for
any insurance about to expire at least seven(7) days before such expiration, all such insurance to
be first payable in case of loss to the Mortgagee and to be written by such companies, on such
terms, in such form and for such periods and amounts as the Mortgagee shall from time to time
designate or approve, and the Mortgagor hereby grants the Mortgagee in the event of a default
hereunder full power and authority as attorney irrevocable of the Mortgagor to cancel or transfer
such insurance arid to retain any premium or proceeds and to apply the same to the debt secured
hereby;
(4) To put, maintain and keep the premises at all times in as good repair and condition
as the same now are or hereafter may be put, damage from casualty, expressly not excepted,
permitting and suffering no waste or strip of the same to occur, nor any violation of any law, by-
law, ordinance, restriction, regulation, order or code affecting the premises or the use thereof, and
not to remove or alter any of the improvements equipment, appliances, furnishings, and fixtures,
constituting part of the premises without the consent of the Mortgagee;
(5) To occupy the entire premises, or cause the same to be occupied by lessees (which
term shall include licensees and concessionaires) and to assign and deliver to the Mortgagee on
demand any or all leases of the premises or any part thereof, or at the Mortgagee's election, to
assign and deliver any or all rents and other income reserved in such leases, said assignments to be
in form and substance satisfactory to the Mortgagee, and the Mortgagor hereby grants the
Mortgagee full power and authority as attorney irrevocable of the Mortgagor to make, execute,
acknowledge, deliver and record such assignments, and not in limitation of the foregoing, to
provide that after any default by the Mortgagor hereunder or under the terms of such assignments,
the Mortgagee shall be entitled to modify and otherwise deal with all such leases with the same
power and discretion which the Mortgagee would have if it were the lessor thereof, and the
Mortgagee shall be entitled to collect all of the rents and other income reserved in such leases and
to apply the same to the debt secured hereby, and after foreclosure the Mortgagee shall not be
liable to account to the Mortgagor for rents or other income thereafter accruing, provided
however; that any such assignments shall also provide that the Mortgagor may have and retain
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such rents and other income until such default occurs; and the Mortgagee shall further have the
right to subordinate this Mortgage and its rights hereunder to any lease or leases of the premises
now or hereafter in force, and upon execution and recording of any instruments by the Mortgagee
which purport to effect such subordination, this Mortgage shall be subordinate to the lease or
leases referred to in such instruments with the same force and effect as if such lease or leases had
been executed and delivered prior to the execution, delivery and recording of this Mortgage;
(6) To observe and perform all the obligations imposed upon the Mortgagor under any I
leases of the premises, and not to do or permit to be done anything which would impa. I
ir the 1 0
U�P
security of such leases to the Mortgagee, nor to cancel or change any terms, conditions or
covenants of any leases of the premises or any part thereof without the prior written consent of the!
Mortgagee, nor to execute any leases providing for payment of rent for more than one month in
advance, nor to receive rent from all or any part of the premises for more than one month in
advance without the prior written consent of the Mortgagee, and any such advance rent in excess
of one month received shall be held by the Mortgagor in trust for the benefit of the Mortgagee;
(7) To furnish the Mortgagee, from time to time, within a reasonable time after its
demand, a true and complete statement of the annual operating expenses and income of the
premises, and financial statements to be in form satisfactory to the Mortgagee;
(8) That if the premises or any part thereof shall be damaged or destroyed by fire or
other hazard against which insurance is held, or if the premises or any portion thereof shall be
taken by eminent domain, no settlement on account of any loss or damage shall be made without
the consent of the Mortgageee, and any proceeds from insurance or damages for such taking, as
the case may be, shall be paid to the Mortgagee, and the Mortgagor hereby irrevocably assigns the
same to the Mortgagee; the Mortgagee as its discretion may either apply such proceeds against the
debt secured hereby (in which case the Mortgagor's obligations hereunder to restore such damage
to the premises as may have been caused by such fire, other hazard or taking shall terminate), or
release such portion of the proceeds to the Mortgagor as is necessary to restore the premises to
their prior condition insofar as is practicable, upon such terms and conditions as the Mortgagee
deems appropriate, and apply the balance thereof, if any, t the debt secured hereby; provided,
however, that if any insurer of the premises denies liability, the Mortgagor shall not be relieved of
its obligation to restore the premises;
(9) If the Mortgagee shall become involved in any action or course of conduct with
respect to the premises, or other security for the debt secured hereby, in order to protect its interest
therein, including without limitation: The Mortgagee's commencement and prosecution of
foreclosure proceeding; its involvement in bankruptcy proceeding concerning the Mortgagor; the
Mortgagee's entering the premises, care and management thereof-, or its defending or participation
as a party in any action at law or in equity brought by the Mortgagor or any other person or
organization with respect to the premises (or other security for the debt secured hereby), the
Mortgagor shall reimburse the Mortgagee for all charges, costs and expenses incurred by the
Mortgagee in connection therewith, including without limitation attorney's fees and an additional
reasonable fee to compensate the Mortgagee for overhead and personnel salaries and wages
attributable to undertaking such actions or conduct;
(10) That at any foreclosure sale of the premises, the premises and any combination or
all of the other security for the debt secured hereby may be offered for sale for one total price, and
the proceeds of such sale may be accounted for in one account without distinction between the
items of security or without assigning to them any proportion of such proceeds, the Mortgagor
3
hereby waiving the application of any doctrine of marshaling; and the Mortgagee may, in the
exercise of the power of sale herein given, sell the premises and said other security in parts or
parcels, said sales may be held from time to time, and the power shall not be fully executed until
all of the premises and said other security not previously sold shall have been sold; if surplus
proceeds are realized from a foreclosure sale, the Mortgagee shall not be liable for any interest
therein pending distribution of such proceeds by the Mortgagee;
(11) To notify the Mortgagee promptly of the existence of and the exact details of any
other security interest in the premises, now existing or hereafter arising, to make all payments that
become due to any secured party having such security interests, and at the request of the
Mortgagee to assign to the Mortgagee all its right, title and interest in and to any and all
agreements evidencing such security interest covering any of said security, and the Mortgagor
hereby grants the Mortgagee full power and authority as attorney irrevocable of the Mortgagor to
make, execute, acknowledge and deliver such assignments. The Mortgagor represents that no
security interest presently exists in any of said security except as has heretofore been disclosed in
writing to the Mortgagee;
(12) That the Mortgagee shall be entitled, but not obligated, to cure any default of the
Mortgagor hereunder, and shall be reimbursed by the Mortgagor for all costs, charges and
expenses, including without limitation attorneys' fees, incurred in connection therewith, and that
all sums for which the Mortgagee may be entitled to reimbursement shall be added to the principal
sum of the debt secured hereby, shall cam interest at the rate set forth in said note, or the note
guaranteed by said guaranty, shall be secured by this Mortgage, and shall be payable on demand of
the Mortgagee, whether or not the remaining principal balance of said note or guaranty has been
declared due and payable;
(13) In the event the legal or beneficial ownership of said premises, or any portion
thereof or interest therein, becomes vested in anyone other than the Mortgagor, or upon the death
of, or appointment of a guardian or conservator for, the Mortgagor or any guarantors or endorsers
(other than an endorser without recourse of the note secured hereby), the entire mortgage debt
shall, at the option of the Mortgage, become due and payable on demand, provided, however, that
the Mortgagee may, without notice to the Mortgagor, deal with the Mortgagor's successor or
successors in interest with reference to the mortgage and the debt secured hereby in the same
manner as with the Mortgagor without in any way vitiating or discharging the Mortgagor's
liability or obligations with respect to this mortgage or the debt secured hereby. No sale of the
premises hereby mortgaged and no forbearance of the part of the Mortgageee or extension of the
time for the payment of the debt secured hereby or any other indulgence given by the Mortgagee
shall operate to release, discharge, modify, change or affect the original liability of the Mortgagor,
nor the priority of this mortgage either in whole or in part, notice of such forbearance, extension or
other indulgence being hereby expressly waived;
(14) That the Mortgagor shall not:
(a) create or permit to be created any encumbrance to attach to the premises
(except for the payment of real estate taxes and betterment assessments prior to the
commencement of interest and penalties thereon), and if such encumbrance is attached upon the
premises without the consent of the Mortgagee, to discharge the same within thirty (30) days of
the sate of such attachment;
(b) if the Mortgagor is a corporation, liquidate or dissolve or permit its
4
liquidation or dissolution; if the Mortgagor is a trustee or trustees, terminate or dissolve or permit
its termination or dissolution;
(c) file a petition or application under any state or federal bankruptcy,
insolvency or debtor's relief law, nor consent to an assignment or composition for the benefit of
the Mortgagor's creditors, nor consent to appointment of a receiver for any of the Mortgagor's
property; if such petition, application or receivership proceedings are instituted against the
Mortgagor by any third party or parties, the Mortgagor shall not permit the same to remain
undischarged for more than twenty-five (25) days after the commencement thereof,
(15) If this mortgage is at any time subject or subordinate to another mortgage, the
Mortgagor shall not modify, amend, or extend such prior mortgage, or the debt or other obligation
secured thereby, without the consent of the Mortgagee; any default under said prior mortgage or
the obligations secured thereby shall be a default hereunder, and the Mortgagee shall be entitled
but not obligated to cure said default, as provided in Paragraph 12 hereof,
(16) Any notice, demand or other communication from the Mortgagee to the Mortgagor
shall be deemed satisfactorily given upon depositing the same in writing in the United States mail
by postage prepaid, registered or certified mail, addressed to the Mortgagor (or any one of them if
there be more than one) at the Mortgagor's latest address in the mortgage records maintained by
the Mortgagee;
(17) The Mortgagor will not further encumber the mortgaged premises by a second
mortgage, a wraparound mortgage or any other superior or subordinated type of mortgage without
the prior consent of the Mortgagaee; and
(18) That with respect to hazardous materials and matters related thereto:
(a) Mortgagor shall comply strictly with the requirements of every federal, state
and local law, ordinance and regulation, including Massachusetts General Laws Chapter 21E,
pertaining to "oil" and "hazardous material" as the same may be amended from time to time
(collectively by the "Statutes");
(b) Mortgagor is now aware of any operations or materials, and is not and will
not become involved in any operations, at the premises or at any other locations which could lead
to the imposition on Mortgagor or Mortgagee of liability under any of the Statutes;
(c) In the event there are activities on the premises (by any person or entity)
which involve or may involve oil or hazardous material, or the premises themselves contain or
may contain, oil or hazardous material, Mortgagor shall immediately take all steps necessary to
insure that liability shall not be asserted against Mortgagor or Mortgagee under any of the
Statutes;
(d) Mortgagor shall notify Mortgagee promptly in the event there is the
presence or release, or suspected presence or release, of oil or hazardous material on the premises;
(e) In any and all circumstances, Mortgagee shall have the right to review and
approve, prior to implementation, any plan for cleanup and/or removal or oil or hazardous material
Mortgagee may hire or retain consultants, at Mortgagor's expense, to assist Mortgagee in its
5
review of any proposed response plan, which approval shall not unreasonably be withheld or
delayed;
(f) In the event Morgagor fails to comply with any of the Statutes or fails to I
comply with any of its obligations under this paragraph 18, the note, guaranty or obligation
secured hereby shall at the election of Mortgagee be deemed to be in default, upon which event, or
upon any other event of default, Mortgagee, may, at its election, but without the obligation to do
so, obtain any expert site assessment report, at Mortgagor's expense, give such notices or cause
such work to be performed at the premises, or take any and all other actions as Mortgagee deems I
necessary, as shall cure (or work toward curing) said failure of compliance, and any amounts paid
as a result of said notices or such work, together with interest thereon at the rate of interest set
forth in the note or the obligation secured hereby, from the date of payment, shall be immediately
due and payable by Mortgagor to Mortgagee, and until paid shall be added to and become part of
the balance due on the note or other obligation secured hereby, and the same may be collected as
part of said balance due in any suit hereon or upon the note or guaranty; or Mortgagee, by the
payment of any assessment, claim or charge, may in its sole discretion, be thereby subrogated to
the rights of the Commonwealth of Massachusetts, the United States of America or any other
governmental body arising pursuant to any of the Statutes.
(h) As used in this Paragraph (18), the words "oil", "hazardous material" and
"release"have the meanings given them in Massachusetts General Laws, Chapter 21E.
Any breach in the covenants, conditions or agreements contained in this mortgage or in
any instrument given in connection with the note and debt secured hereby, or in any other
mortgage, debt or obligation of or from the Mortgagor to the Mortgagee shall constitute a default
hereunder, and if such default shall exist for more than thirty(30) days, the entire debt secured
hereby, together with all prepayment penalties to which the Mortgagee would be entitled under
said note or by law if said note were prepaid in full at the end of said thirty-day period, shall
become due and payable at the option of the Mortgagee, and the Mortgagee shall have the
statutory Power of Sale as hereinafter provided.
In case any provision of said note, this mortgage, or any instrument executed by any
person or organization in connection therewith shall be found unenforceable or invalid for any
reason, the enforcement of any other provision hereof shall not be impaired thereby, and such
provision shall be deemed modified to the extent necessary to be enforceable, or if such
modification is not practicable, shall be deleted from this mortgage.
This mortgage is upon the Statutory Condition and upon the further condition that all
covenants and agreements of the Mortgagor in said note, this mortgage, all other instruments
executed in connection therewith and in all other mortgages, debts and obligations of or from the
Mortgagor to the Mortgagee shall be kept and fully performed, and upon any breach of the same
Mortgagee shal I have the STATUTORY POWER OF SALE and any other powers given by statute.
The word"Mortgagor" as used herein means the Mortgagor named herein, whether one or
several, and also means any subsequent owner or owners of the equity of redemption of the
premises, and all of the covenants and agreements of the Mortgagor herein contained shall be
binding upon the Mortgagor, its heirs, executors, administrators, successors and assigns and shall
be joint and several if more than one person constitute the Mortgagor. The word "Mortgagee" as
used herein means the Mortgagee named herein and any subsequent holder or holders of this
mortgage.
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WITNESS the execution hereof under this seal this 2"d day of March 2004.
Robert' 'ol�mon, Trustee
IV
COMMONWEALTH OF MASSACHUSETTS
Essex, ss. March 2004
Then personally appeared the above-named Robert S. Solomon and acknowledged the
foregoing instrument to be her free act and deed, before me,
,&-A x _A)k'17t,
96i6ry Public
My commission expires:
LINDA D.WHITE
Notarj Public
NIY COMMISSIDn Ey.pires June 18,2004
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Exhibit A - Property Description
The land, together with the buildings thereon, if any, situated at 18 Commercial Street in Salem,
Essex County, Commonwealth of Massachusetts, bounded and described as follows:
Parcel No. I
Beginning at a point on the northerly side of Commercial Street at the SOUTHWESTERLY
comer of land formerly of George F. Lord, thence running in a Northerly direction along the
Westerly property line of the property now or formerly of George F. Lord, a distance of eighty-
nine and 85/100 (89.85) feet to a point; thence turning and running in a
NORTHWESTERLY direction a distance of fifty and 051100 (50.05) feet along land now or
formerly of H.P. Hood & Sons, Inc.; thence turning and running in a SOUTHERLY direction
along land now or formerly of the City of Salem, a distance of ninety-two and 57/100 (92.57)
feet; thence turning and running in an EASTERLY direction along the Northerly street line of
Commercial Street, a distance of fifty(50) feet to the point of beginning.
Containing 4,560 square feet of land, as shown on a plan filed with the Essex South District
Registry of Deeds entitled "Land of City of Salem, Rear of North Street, Salem, Mass., May
1955, Revised October 1955 —Edgar W. Nickerson, City Engineer" in Book 4809, Page 500.
Parcel No. 2
The land in said Salem with the buildings thereon, if any, situated on the North side of the North
River Canal and bounded and described as follows:
Beginning at the SOUTHEASTERLY comer of said lot on the Northwesterly side of a proposed
road the same point being three hundred and eighty-eight and 44/100 (388.44) feet Southwes terly
from North Street; thence running
SOUTHWESTERLY by the Northwesterly street line of said proposed road seventy (70) feet to
other land now or formerly of the City of Salem; thence turning and running
NORTHWESTERLY by said other land now or formerly of the City of Salem, eighty-nine and
85/100 (89.85) feet to land now or formerly of H.P. Hood & Sons, Inc.; thence turning and
running EASTERLY by said land now or formerly of H.P. Hood & Sons, Inc., seventy and
12/100 (70.12) feet to land now or formerly of Cook; thence turning and running
SOUTHEASTERLY by said land now or formerly of Cook, eighty-six and 6/100 (86.06) feet to
the point begun at.
Containing 6,156 square feet of land and being shown on a plan entitled "Land of the City of
Salem, rear of North Street May 1955, Revised October 1955, Edgar W. Nickerson, City
Engineer and herembefore referred to.
Iil
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INTERCREDITOR AND SUBORDINATION AGREEMENT
This Agreement dated this 2.�day of March, 2004,by and among Robert G.
Solomon, Trustee of River Wharf Realty Trust, u/d/t dated June 30, 1999, recorded in the
Essex County Registry of Deeds at Book 15780,Page 107, with an address c/o The
Bioengineering Group, Inc., 18 Commercial Street, Salem,1��01970 ("Borrower"), The
City of Salem, a public body, politic and corporate having a place of business at 93
Washington Street, Salem, Massachusetts ("Junior Lender") and The Life Insurance
Community Investment Initiative, LLC, a Massachusetts limited liability company
having offices at 420 Boylston Street,Boston, Massachusetts, ("Senior Lender").
WHEREAS, the Senior Lender has made a certain loan to Borrower in the
original principal amount of Five Hundred Twenty Thousand and 00/100 Dollars
($520,000.00),which loan is evidenced by a Loan Agreement, Commercial Real Estate
Promissory Note,Mortgage, Security Agreement, and Assignment, Assignment of Leases
and Rents, and other related loan documents dated on or about March_2L, 2004
(collectively the "Senfor Debt"). The Senior Debt and all obligations of the Borrower
under or in respect of the Senior Debt and the loan evidenced thereby, and all other
indebtedness of Borrower to Senior Lender,now existing or hereafter arising under the
Senior Debt are referred to herein as the"Senior Indebtedness".
WHEREAS,the Jur iior Lender has made a certain loan to Borrower, which loan is
evidenced by a Promissory Note and a M�rt% d d -Z a in the original
Ilars ($ m
principal amount of ftu-1AwJy((fT6v,1-E-v, INIK h4lars (S 1�5
which loan is referred to as the"Junior Indebtedness".
WHEREAS, the loan agreement relating to the Senior Indebtedness requires that
the Junior Indebtedness be subordinated to the Senior Indebtedness, and the parties desire
to execute and deliver this Agreement.
NOW THEREFORE, the parties hereto agree as follows:
1. (a) Unless and until this Agreement is terminated by written notice, the Junior
Indebtedness shall be subordinate and junior in right of payment, to the extent and in the
manner set forth in this Agreement, to the Senior Indebtedness. As long as the Senior
Indebtedness shall remain outstanding, the Junior Indebtedness shall not be amended
without the prior written consent of Senior Lender. In addition, as long as the Senior
Indebtedness shall remain outstanding, the Junior Lender will not grant or consent to any
further or additional subordination of the Junior Indebtedness in whole or in part in favor
of any person other than the Senior Lender without the prior written consent of the Senior
Lender.
If the Junior Indebtedness is evidenced by a promissory note, mortgage, or other
instrument, the following legend shall be typed on such instrument: "This instrument is
subject to the terms of that certain Intercreditor and Subordination Agreement dated
March A,, 2004,by and between Maker, Lender and The Life Insurance Community
Investment Initiative, LLC".
(b) The Senior Indebtedness shall be secured by a first priority lien on the
property owned by the Borrower located at 18 Commercial Street, Salem,MA, as further
described in that certain Mortgage, Security Agreement, and Assignment between the
Senior Lender and the Borrower in the amount of Five Hundred Twenty Thousand
($520,000.00)Dollars dated March A,2004, and recorded with the Essex County
Registry of Deeds. Junior Lender agrees to execute all documents requested by Senior
Lender to effectuate the priority of liens described herein.
2. So long as no default shall have occurred with respect to any Senior
Indebtedness, the Borrower will pay the interest and principal due on the Junior
Indebtedness according to the terms thereof
3. Upon notice to Junior Lender that a default shall have occurred with respect to
any Senior Indebtedness, or in the event any part of the Senior Indebtedness has been
accelerated, unless and until all Senior Indebtedness shall have been paid in full, the
Borrower will not, and will not permit any subsidiary,parent, affiliate, officer or director
to directly or indirectly, make or agree to make any payment(in cash,property or notes,
by setoff or otherwise) of or in respect of any Junior Indebtedness, including payments of
principal, interest, fees, or expenses.
4. In case any such default shall have occurred with respect to any Senior
Indebtedness, unless and until all Senior Indebtedness shall have been paid in full, the
Junior Lender(nor any assignee or successor holder) shall not:
(a) demand, accept or receive from the Borrower any payment or other
value (whether cash,property or notes) on account of the Junior
Indebtedness, including payments of principal, interest, fees, or expenses;
(b) set off or otherwise apply, all or any part of the Junior
Indebtedness towards satisfaction of any obligation of the Junior Lender to
Borrower;
(c) exercise any of the Junior Lender's rights, remedies,powers,
privileges, and discretions with respect to the Junior hidebtedness,
including without limitation, foreclosure or acceleration of the Junior
Indebtedness; or
(d) unless endorsed in favor of and delivered to the Senior Lender
(immediately upon receipt thereof) demand, accept, or receive any
evidence of, or collateral for the Junior Indebtedness;
5. In the event that any dividends shall at any time be payable in respect of the
Junior Indebtedness in any bankruptcy proceedings relating to the Borrower, the Junior
2
Lender expressly agrees that the Senior Lender shall be entitled to receive the same at its
option to apply the same to the Senior Indebtedness, including without limitation interest
accrued with respect to the Senior Indebtedness subsequent to the filing of the relevant
bankruptcy petition.
6. The Junior Lender and Borrower shall each execute all such further
instruments and do such other and further acts as the Senior Lender may reasonably
request in furtherance of the Senior Lender's rights hereunder and/or the purposes of this
Agreement.
7. Intentionally Deleted.
8. The Senior Lender shall have no duty as to the collection or protection of the
Junior Indebtedness or any income or distribution thereon,beyond the safe custody of
such of the Junior Indebtedness as may come into the possession of the Senior Lender
and shall have no duty as to the preservation of any rights pertaining thereto, including,
without limitation, any rights against prior parties.
9. In the event that the Junior Lender receives any payments on account of the
Junior Indebtedness in violation of this Agreement, the Junior Lender shall hold such
payments in trust for the Senior Lender and shall not commingle such payments with any
other funds of Junior Lender. The Junior Lender shall deliver all such payments to the
Senior Lender immediately upon the receipt thereof by the Junior Lender in the identical
form received, duly endorsed to the Senior Lender.
10. The Junior Lender waives presentment, demand, notice, and protest with
respect to the Senior Indebtedness and/or the Junior Indebtedness and the acceptance of
this Agreement by the Senior Lender. The Junior Lender assents to any indulgence or
waiver which the Senior Lender may grant or give the Borrower and/or any other person
liable or obligated to the Senior Lender for or on the Senior Indebtedness. The Junior
Lender authorizes the Senior Lender to alter, amend, cancel,waive, or modify any term
or condition of the Senior Indebtedness and of the obligations of any other person liable
or obligated to the Senior Lender for or on the Senior Indebtedness, without notice to, or
consent from, the Junior Lender. No compromise, settlement, or release by the Senior
Lender of the Senior Indebtedness or of the obligations of any such other person and no
release of any collateral securing the Senior Indebtedness or securing the obligations of
any such other person shall affect the obligations of the Junior Lender hereunder. No
action by the Senior Lender which has been assented to herein shall affect the obligations
of the Junior Lender to the Senior Lender hereunder, and the Junior Lender shall in no
event be entitled to any right of subrogation, regardless of any payment made hereunder,
unless and until the Senior Indebtedness shall have been paid in full and discharged.
11. The subordination effected hereby shall not be affected by any fraudulent,
illegal, or improper act by the Borrower, nor by any discharge or invalidity,by operation
of law or otherwise, of the Senior Indebtedness. All interest and costs of collection With
respect to the Senior Indebtedness for which the Borrower has agreed to be liable shall
3
continue to accrue and shall continue to be Senior Indebtedness for purposes of the
subordination effected hereby notwithstanding any stay to the enforcement thereof
against the Borrower or disallowance therefor against the Borrower.
12. The books and records of the Senior Lender showing the account between
the Senior Lender and the Borrower shall be admissible in any action or proceeding to
enforce the within agreement and shall constitute prima facie evidence and proof of the
items contained therein.
13. In the event(a) the Senior Lender determines that any representation made
by the Borrower or the Junior Lender to the Senior Lender herein was not true or accurate
when given and/or(b) the Borrower or the Junior Lender(or both) fails to promptly,
punctually and faithfully perform or discharge any obligation hereunder or under any
other instrument, or agreement with the Senior Lender, all Senior Indebtedness, and any
and all liabilities, obligations, and indebtedness of the Junior Lender to the Senior
Lender,whether arising hereunder or under any document, instrument, or agreement to
the Senior Lender, shall become immediately due and payable, at the Senior Lender's
option and without notice or demand.
14. The Junior Lender and the Borrower will each pay on demand all
attorneys' reasonable fees and out-of-pocket expenses incurred by the Senior Lender's
attorneys and all costs incurred by the Senior Lender which are directly or indirectly
related to the Senior Lender's efforts to preserve, protect, collect, or enforce any of the
respective obligations of the Junior Lender and/or any of the obligations of the Borrower
hereunder and/or any of the Senior Lender's rights and remedies hereunder(whether or
not suit is instituted by or against the Senior Lender).
15. The within Agreement incorporates all discussions and negotiations
amongst and betweenthe Borrower,the Junior Lender, and the Senior Lender concerning
the subordination effected hereby. No such discussions or negotiations shall limit,
modify, or otherwise affect the provisions hereof No provisions hereof may be altered,
amended,waived, canceled, or modified, except by a written instrument executed, sealed,
and acknowledged by a duly authorized officer of the Senior Lender.
16. The Senior Lender may continue to rely upon this Agreement and the
subordination effected hereby with respect to all Senior Indebtedness which may arise
hereafter under the Senior Debt. The repayment and satisfaction of all such Senior
Indebtedness shall not terminate this Agreement and the subordination effected hereby as
to Senior Indebtedness which arise thereafter.
17. The rights, remedies,powers,privileges, and discretions of the Senior
Lender hereunder shall be cumulative and not exclusive of any rights or remedies which
it would otherwise have. No delay or omission by the Senior Lender in exercising or.
enforcing any of the Senior Lender's rights and remedies shall operate as, or constitute, a
waiver thereof No waiver by the Senior Lender of any of the Senior Lender's rights and
remedies or of any default or remedy under any other agreement with the Borrower or the
4
Junior Lender shall operate as a waiver of any other default hereunder or thereunder. No
exercise of the Senior Lender's rights and remedies and no other agreement or
transaction, of whatever nature, entered into between the Senior Lender and the Junior
Lender and/or between the Senior Lender and the Borrower at any time shall preclude
any other or further exercise of the Senior Lender's rights and remedies. No waiver by
the Senior Lender or any of the Senior Lender's rights and remedies on any one occasion
shall be deemed a continuing waiver. All of the Senior Lender's rights and remedies and
all of the Senior Lender's rights,remedies,powers,privileges, and discretions under any
,other agreement with the Junior Lender and/or the Borrower shall be cumulative, and not
alternative or exclusive, and may be exercised by the Senior Lender at such time or times
and in such order of preference as the Senior Lender in its sole discretion may determine.
The rest of this page is intentionally left blank.
5
Executed under this seal as of the date and year set forth above.
BORROWER:
River Wharf Realty Trust
By: Robert &Solomon
Its: Trustee
JUNIOR LENDER
The City of Salem
YBy:
Its:
SENIOR LENDER:
The Life Insurance Community Investment
Initiative, LLC
By:
Its:
6
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss.
On this Vjday of March, 2004, before me, the undersigned notary public,
personally appeared Robert G. Solomon, proved to me through satisfactory evidence of
identification, which was his driver's license, to be the person whose name is signed on
the preceding.or attached document, and acknowledged to in at e signed it voluntarily
for its stated purpose as Trustee of the Riv
ANDHEW R STEMPLER1
Not rY Public
Kotary'Public Musadma
W'-0M,M&nW-eft0,1,on Expires
October 1,2004
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss.
x
On this d,:'* day of March, 2004, before me, the undersigned notary public,
p1h h
personally appeared C,9,,6,- 7- 63'" proved to me through satisfactory
evidence of identification, which was hid drivEr's license, to be the person whose name is
signed on the preceding or attached document, and ackno I'=dd to)9ae that he signed it
w'
voluntarily for its stated purpose, on behalf of The Life Insur C unity Investment
Initiative, LLC. 7 & I I ANDREW P.STEMPLER
Notary public
tary Public 4mamlawslon Expirm
October 1,2004
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss.
On this2± day of March, 2004, before me, the undersigned notary public,
personally appeared �o6!4 k P- 1AJa�5� proved to me through satisfactory evidence
of identification, which was'his/her k I Y� , to be the person whose
name is signed on the preceding or attached document, and acknowledged to me that
he/she signed it voluntarily for its stated purpose, on behalf of The City of Salem.
Notary Public
ELLEN BUTLER
(final).doc N ublic
G:\4330\Docummts\intemmditor subordinafion agrmment Common vjet%pf M as s son U s eft
My Commission Expires
NdVOMW i.
7
PERSONAL GUARANTY
To induce the City of Salern,hereinafter referred to as the "LENDER",to extend credit and
other financial consideration.and accommodation to River Wharf Realty Trust hereinafter,
referred to as the "BORROWER", the undersigned, unconditionally guarantees the prompt
and complete payment and performance of all liabilities and obligations of the One Hundred
Thirty Five Thousand Nine Hundred Twenty Five Dollars and 00/100 ($135,925.00) loan to
the BORROWER evidenced by the Note in that amount dated March 2, 2004.
The term "liabilities and obligations," shall be deemed to include any and all obligations on
the part of the BORROWER or any one or more of them to pay money and to perform or
to refrain from performing acts or things arising under or by virtue of any undertaking
entered into simultaneously with or subsequent to the execution of this guaranty and shall be
deemed further, to include all obligations of the BORROWER to the LENDER now
existing or hereafter arising, whether direct or indirect, absolute or contingent, due or to
become due,regardless of how they may rise or by what instrument or instruments they may
be evidenced or whether evidenced by any instrument and shall include the costs of
collection incurred by the Bank, including reasonable attorneys fees, in enforcing any
particular liability or obligation (including the costs of foreclosing on any collateral given to
secure any such liability or obligation) and in enforcing this guaranty.
This guaranty is a continuing guaranty and shall remain in full force and effect unless and
until terminated by the undersigned, or any one or more of them, in respect to his individual
liability, by giving notice of his intention to do so, such notice to be mailed,postage prepaid,
by registered mail, return receipt requested, to the LENDER at the City of Salern,
Department of Planning and Community Development, 120 Washington Street, Salem,
Massachusetts 01970, or to such other address designated by LENDER. Notwithstanding
the giving of any such notice of termination or termination, this guaranty shall remain
effective with respect to any liability or obligation incurred or contracted by the
BORROWER prior to its acceptance in writing by the LENDER.
The liability of each of the undersigned shall be absolute and unconditional without regard
to the liability or obligation,presentment,demand,notice,protest and all other demands and
notices in connection with the delivery, acceptance, performance, default or enforcement of
this guaranty or of any liability or obligation guaranteed hereby, and, in general, waive any
and all suretyship defenses or defenses in the nature thereof. The undersigned do hereby
consent without notice to any extension of time for payment or performance, forbearance to
collect or enforce and to any other indulgence granted by the LENDER to the
BORROWER or any one or more of thern, to the release of any person primarily or
secondarily liable hereunder or under any liability or obligation guaranteed hereby to the
substitution, exchange or release of collateral given to secure this guaranty or to secure any
liability or obligation guaranteed hereby.
Any sums credited by or due from the LENDER to any one or more of the undersigned or
any property of any one or more of the undersigned in the possession of the LENDER may
at any time be held as collateral for the payment or performance of the obligations of the
undersigned or any one or more of them hereunder. Regardless of the adequacy of
collateral, the LENDER may apply such sums against the obligations of the undersigned or
any one or more of them hereunder. This guaranty shall insure to the benefits of the
LENDER, its successors and assigns. This guaranty shall be binding upon the undersigned,
their respective administrators,executors,heirs and personal representatives.
k�WG
This guaranty shall be construed as an instrument under seal and in accordance with the law
of the Commonwealth of Massachusetts.
IN VTrNESS WHEREOF, We hereunto set our hands and seals this 2' day of March,
2004.
s WeiY&Goldimith,individuauy
7 Mall Street
Salern,MA 01970
�W
PERSONAL GUARANTY
To induce the City of Salern,hereinafter referred to as the "LENDER",to extend credit and
other financial consideration and accommodation to River Wharf Realty Trust hereinafter,
referred to as the "BORROWER", the undersigned, unconditionally guarantees the prompt
and complete payment and performance of all liabilities and obligations of the One Hundred
Thirty Five Thousand Nine Hundred Twenty Five Dollars and 00/100 ($135,925.00) loan to
the BORROWER evidenced by the Note in that amount dated March 2, 2004.
'Me term "habilities and obligations," shall be deemed to include any and all obligations on
the part of the BORROWER or any one or more of them to pay money and to perform or
to refrain from performing acts or things arising under or by virtue of any undertaking
entered into simultaneously with or subsequent to the execution of this guaranty and shall be
deemed further, to include all obligations of the BORROWER to the LENDER now
existing or hereafter arising, whether direct or indirect, absolute or contingent, due or to
become due,regardless of how they may rise or by what instrument or instruments they may
be evidenced or whether evidenced by any instrument and shall include the costs of
Collection incurred by the Bank, including reasonable attorney's fees, in enforcing any
particular liability or obligation (including the costs of foreclosing on any collateral given to
secure any such liability or obligation) and in enforcing this guaranty.
This guaranty is a continuing guaranty and shall remain in full force and effect unless and
until terminated by the undersigned, or any one or more of thern, in respect to his individual
liability, by giving notice of his intention to do so, such notice to be mailed, postage prepaid,
by registered mail, return receipt requested, to the LENDER at the City of Salem,
Department of Planning and Community Development, 120 Washington Street, Salern,
Massachusetts 01970, or to such other address designated by LENDER. Notwithstanding
the giving of any such notice of termination or termination, this guaranty shall remain
effective with respect to any liability or obligation incurred or contracted by the
BORROWER prior to its acceptance in writing by the LENDER.
The liability of each of the undersigned shall be absolute and unconditional without regard
to the liability or obligation,presentment, demand, notice,protest and all other demands and
notices in connection with the delivery, acceptance, performance, default or enforcement of
this guaranty or of any liability or obligation guaranteed hereby, and, in general, waive any
and all suretyship defenses or defenses in the nature thereof. The undersigned do hereby
consent without notice to any extension of time for payment or performance,forbearance to
collect or enforce and to any other indulgence granted by the LENDER to the
BORROWER or any one or more of them, to the release of any person primarily or
secondarily liable hereunder or under any liability or obligation guaranteed hereby to the
substitution, exchange or release of collateral given to secure this guaranty or to secure any
liability or obligation guaranteed hereby.
Any sums credited by or due from the LENDER to any one or more of the undersigned or
any property of any one or more of the undersigned in the possession of the LENDER may
at any time be held as collateral for the payment or performance of the obligations of the
undersigned or any one or more of them hereunder. Regardless of the adequacy of
collateral, the LENDER may apply such sums against the obligations of the undersigned or
any one or more of them hereunder. This guaranty shall insure to the benefits of the
LENDER,its successors and assigns. This guaranty shall be binding upon the undersigned,
their respective administrators, executors,heirs and personal representatives.
*WG
This guaranty shall be construed as an instrurnent under seal and in accordance with the law
of the Commonwealth of Massachusetts.
IN WrINESS WHEREOF, We hereunto set our hands and seals this 2' day of March,
2004.
Wenai Coldsmith,Individu�lly
7 Mall Street
Salern,MA 01970
AWG
NOTE
March 2, 2004 Salem, Massachusetts
FOR VALUE RECEIVED, the undersigned, River Wharf Realty Trust ("Borrower")
dated March 2, 2004 promise(s) to pay to the City of Salem C'Note Holder"), or order, the
principal sum of One Hundred Thirty-Five Thousand Nine Hundred Twenty-Five Dollars and
00/100 ($135,925.00) with interest on the unpaid principal balance from the date of this Note,
until paid, at the rate of Four percent (4.00%) per annum. Principal and interest shall be payable
at the Salem Department of Planning and Community Development, 120 Washington Street,
Salem, Massachusetts, or at such other place as the Note Holder may designate. The Borrower
shall pay monthly principal and interest payments of One Thousand Three Hundred Seventy-Six
Dollars and 17/100 ($1,376.17) for One Hundred Twenty(120) consecutive months commencing
April 15,2004. Such monthly installments shall continue until the entire indebtedness evidenced
by this Note is fully paid,except that any remaining indebtedness,if not sooner paid,shall be due
and payable on April 1, 2014.
If any installment under this Note is not paid when due and remains unpaid after a date
ified by a notice to Borrower, the entire principal amount outstanding and accrued interest
sped
thereon shall at once become due and payable at the option of the Note Holder. The date
specified shall not be less than thirty(30) days from the date such notice is mailed. Default under
the Mortgage and Security Agreement or Loan Agreement between the Note Holder, the
Borrower and the Borrower's Affiliate as defined in the Loan Agreement,shall constitute a default
hereunder. The Note Holder may exercise this option to accelerate during any default by
Borrower or the Borrower's Affiliate regardless of any prior forbearance. If suit is brought to
collect this Note, the Note Holder shall be entitled to collect all reasonable costs and expenses of
suit, including, but not limited to, reasonable attorney's fees.
Borrower shall pay a late charge of five percent (5.00%) of any installment not received by
the Note Holder within fifteen (15) days after the installment is due.
<IVRS
WG
Borrower may prepay the principal amount outstanding in whole or in part. The Note
Holder may require that any partial payment (i) be made on the date monthly installments are
due, and (ii) be in the amount of the part of one or more monthly installment which would be
applicable to principal. Any partial prepayment shall be applied against the principal amount
outstanding and shall not postpone the due date of any subsequent monthly installments or
change the amount of such installments,unless the Note Holder shall otherwise agree in writing.
Presentment, notice of dishonor, and protest are hereby waived by all makers, sureties,
guarantors and endorsers hereof. This Note shall be the joint and several obligations of all
makers, sureties, guarantors and endorsers, and shall be binding upon them and their successors
and assigns.
Any notice to Borrower provided for in this Note shall be given by mailing such notice
postage prepaid addressed to Borrower care of Wendi Goldsmith, River Wharf Realty Trust, 18
Commercial Street, Salem, MA 01970 or to such other address as Borrower may designate by
prior written notice to the Note Holder.Any notice to the Note Holder shall be given by mailing
such notice postage prepaid to the Note Holder at the address stated in the first paragraph of this
Note,or at such other address as may have been designated by prior written notice to Borrower.
This Note will be governed by and interpreted under the laws of the Commonwealth of
Massachusetts. In the event of any conflict between the provisions of this Note and any
applicable law,the provisions of this Note shall be deemed modified to the extent;but only to the
extent required to comply with the applicable law.
The indebtedness evidenced by this Note is secured by a Mortgage and UCC Financing
Statement specified in the Mortgage and Security Agreement.
RS
4WG
WITNESS the hands and seals of the undersigned this 2nd day of March 2004:
WITNESS BORROWER
1-71-1
AJ+r4;i,d by:—�— (-:;Y�
Robe Sup(omon. Trustee
rus
W n Ith,
le i Gol smith, Sole Beneficia'
RS
W4WG
THE LIFE INSURANCE COMMUNITY
INVESTMENT INITIATIVE,LLC
COMMERCIAL PROMISSORY NOTE
$520,000.00 Boston, Massachusetts
March 2004
FOR VALUE RECEIVED, the undersigned (in this Note, the "Borrower")
promises to pay to the order of The Life Insurance Community Investment Initiative, LLC
(hereinafter, with any subsequent holder, the"Bank") at the office of the Bank, the sum of
Five Hundred Twenty Thousand and 0/100 ($520,000.00) Dollars, with interest on the
unpaid principal balance of the within Note (based upon a three hundred sixty (360) day
year and actual day months) as set forth below.
INTEREST RATE.
(a) The term of the Note is ten (10) years.
(b) Commencing on May 1, 2004, and continuing on the first (1") day
of each consecutive calendar month thereafter through and including April 1, 2009,
interest on the unpaid principal balance of the Note shall accrue at the fixed rate of six
and one half(6.50%)percent per annum.
(c) Commencing on May 1, 2009, and continuing on the first (Is) day
of each consecutive calendar month thereafter through and including April 1, 2014,
interest on the unpaid principal balance of the Note shall be adjusted to accrue at the fixed
rate equal to the rate of interest published as the national Prime Rate in the May 1, 2009,
edition of the Wall Street Journal under the heading "Money Rates", plus two and one
half(2.50%) percent. In no event, however, shall the per annum interest rate be less than
five and one half(5.50%) percent or more than seven and one half(7.50%)percent.
(d) The amortization period shall.be the period of ten (10) years
commencing upon the date hereof.
PAYMENT TERMS. The principal of, and interest on, this Note shall be paid as
follows:
(a) Commencing on May 1, 2004, and on the first (1") day of each
consecutive calendar month thereafter through and including April 1, 2009, the Borrower
shall make an installment payment of principal and accrued interest on the unpaid
principal balance of the Note, in arrears, at the rate set forth herein, in the amount of
$5,904.49.
(b) Commencing on May 1, 2009, and on the first (P) day of each
consecutive calendar month thereafter until the Maturity Date (defined below), the
Borrower shall make an installment payment of principal and accrued interest on the
unpaid principal balance of the Note, in arrears, at the rate set forth herein. The last
payment, which shall be payable on the Maturity Date, shall be in the sum of the then
unpaid principal balance hereof plus all accrued and unpaid interest hereon.
(c) In all events and under all circumstances, unless sooner paid, the
aggregate of the then unpaid principal balance hereof plus all accrued and unpaid interest
hereon shall be paid in full on April 1, 2014 (the"Maturity Date").
LATE CHARGES: DEFAULT INTEREST RATE. The Borrower shall pay a
late charge of five (5.0%) percent of any amount not paid within ten (10) days of when
first due hereunder (whether or not the failure to have timely made such payment
constitutes an Event of Default).
Upon the first to occur of (i) the Maturity Date, or (ii) an Event of Default
(defined below), interest on the then unpaid principal balance of this Note shall accrue at
the aggregate of the interest rate set forth above plus five percent(5.0%) per annum.but in
no event higher than the maximum interest rate permitted by law. Payment or acceptance
of the late charge or the Default Interest Rate is not a permitted alternative to timely
payment and shall not constitute a waiver of any Event of Default.
PREPAYMENTS. The undersigned may prepay all or any portion of the
unpaid principal balance of this Note and there shall not be a prepayment penalty for any
said payment
APPLICATION OF PAYMENTS. Any payments received by the Bank on
account of this Note prior to the Maturity Date or the acceleration of this Note shall be
applied, to the extent available, in the following order: First, to any costs, expenses, or
charges then owed the Bank by the Borrower; Second, to accrued and unpaid interest
hereon; Third to the unpaid principal balance hereof Any payments so received after the
sooner of the Maturity Date or acceleration shall be applied in such manner as the Bank
may determine.
USE OF PROCEEDS. The Borrower represents to the Bank that the proceeds of
this Note will not be used for personal, family or household purposes and will only be
used in connection with the refinance of the existing mortgages on the property located at
18 Commercial Street, Salem, Massachusetts.
2
EVENTS OF DEFAULT. The Bank, at its option, may declare the entire unpaid
principal balance of this Note and all accrued and unpaid interest hereon to be
immediately due and payable without demand, notice, or protest (each of which is hereby
waived) upon the occurrence of any one or more of the following events (herein, "Events
of Defaulf'), in addition to which, upon the occurrence of any event described in
Subsection(g), below, the entire unpaid principal balance of this Note and all accrued and
unpaid interest herein shall be immediately due and payable without any action or
declaration by or on behalf of the Bank:
(a) the failure by the Borrower to pay within ten (10) days of when due any
amount then owed by the Borrower to the Bank.
(b) The failure by the Borrower to promptly, punctually, and faithfully
perform, discharge, or comply with any of the Borrower's liabilities, obligations,
indebtedness, or covenants to the Bank (hereinafter, the liabilities, obligations,
indebtedness, and covenants described in Subsection (a) above, and this Subsection (b),
are referred to as the "Liabilities"), and such failure is not fully cured within thirty (30)
days-
(c) Default by Borrower in the performance or observance of any covenant,
condition or provision of the Loan Agreement or Mortgage, Security Agreement, and
Assignment.
(d) The determination by the Bank . that any financial information,
representation, or warranty heretofore, now, or hereafter made by the Borrower to the
Bank, in any document, instrument, agreement, or paper was not true or accurate in any
material respect when given.
(e) The occurrence of any event such that any indebtedness of the Borrower to
any lender, other than the Bank, could be accelerated (whether or not such acceleration
takes place).
The occurrence of any event of default, and the ,expiration of any
applicable grace or cure period under any agreement between the Bank and the Borrower,
or instrument or paper given the Bank by the Borrower, whether such agreement,
instrument, or paper now exists or hereafter arises (whether or not the Bank exercises its
rights upon default under any such other agreement, instrument, or paper).
(g) Any act by, against, or relating to the Borrower, or its property or assets,
which act constitutes the application for, consent to, or sufferance of the appointment of a
receiver, trustee, or other person, pursuant to court action or otherwise, over all, or any
part of the Borrower's property; the granting of any trust mortgage or execution of an
3
assignment for the benefit of the creditors of the Borrower, or the occurrence of any other
voluntary or involuntary liquidation or extension of debt agreement for the Borrower; the
failure by the Borrower to generally. pay the debts of the Borrower as they mature;
adjudication of bankruptcy or insolvency relative to the Borrower; the entry of an order
for relief or similar order with respect to the Borrower in any proceeding pursuant to Title
11, USC, as amended (commonly referred to as the "Bankruptcy Code") or any other
federal bankruptcy law; the filing of any complaint, application, or petition by or against
the Borrower initiating any matter in which the Borrower is or may be granted any relief
from the debts of the Borrower pursuant to the Bankruptcy Code or from the debts of the
Borrower pursuant to the Bankruptcy Code or to any other insolvency statute or
procedure; the calling or sufferance of a meeting of creditors of the Borrower; the
meeting by the Borrower with a formal or informal creditor's' committee; the offering by,
or entering into by, the Borrower of any composition, extension or any other arrangement
seeking relief or extension for the debts of the Borrower, or the initiation of any other
judicial or non-judicial proceeding or agreement by, against, or including the Borrower
which seeks or intends to accomplish a reorganization or arrangement with creditors.
(h) The entry of any judgment against the Borrower, which judgment is not
satisfied or appealed (with execution or similar process stayed) within fifteen(15) days of
its entry.
(i) The service of process upon the Bank seeking to attach, by mesne or
trustee process any funds of the Borrower on deposit with the Bank.
The death, legal incapacity, termination of existence, dissolution, winding
up, or liquidation of the Borrower or Guarantor.
(k) The sale, transfer, assignment, pledge, encumbrance, or attachment of any
beneficial interest in the Borrower, or any of the Guarantor's capital stock.
(1) The sale, transfer, assignment, pledge, mortgage, ,or other disposition or
grant of any interest to any person, other than the Bank, of all, or any portion, of any
collateral now or hereafter granted by the Borrower to the Bank to secure any Liability.
(in) The occurrence of any of the foregoing events of default with respect to
any partner or beneficiary of the Borrower or any guarantor, endorser, or surety to the
Bank of the liabilities, or the occurrence of any of the foregoing Events of Default with
respect to any parent (if the Borrower is a corporation), subsidiary, or affiliate of the
Borrower, as if such partner, beneficiary, guarantor, endorser, surety, parent, subsidiary,
or affiliate were the "Borrower" described therein.
(n) The termination or attempted termination of any guaranty by any guarantor
of the Liabilities.
4
In addition to any other right to which the Bank is or becomes entitled upon the
occurrence of any Event of Default, the occurrence of any such Event of Default shall
also constitute, at the Bank's option and without demand, notice, or protest, a default
under all other agreements between the Bank and the Borrower and under all other
instruments and papers given the Bank by the Borrower.
At any time after any Event of Default, at the option of Bank, in addition to and
not in lieu of any other rights or remedies available to Bank at law or in equity: (a) all
obligations shall become due and payable; and (b) all cash, security, instruments, or other
property of the Borrower may be set-off or otherwise applied by the Bank against all
obligations.
LOAN TO VALUE RATIO. The Borrower shall maintain a maximum Loan to
Value Ratio of eighty(80%) percent to be tested from time to time as the Bank in its sole
discretion shall determine. "Loan to Value Ratio" shall mean the outstanding principal
balance of this Note divided by the value of 18 Commercial Street, Salem, Massachusetts,
(the "Property") as determined by the Bank.
INDEMNIFICATION. For said value received, with the exception of any claim
in which final judgment no longer subject to appeal has been rendered against the Bank
by a court of competent jurisdiction in which the Bank has been found to have acted in a
grossly negligent manner and/or in bad faith, the Borrower also shall indemnify, defend,
and hold the Bank, or any agent, employee, officer, or representative of the Bank,
harmless of and from any claim brought or threatened against the Bank or any such
person so indemnified by: the Borrower; any other guarantor or endorser of the
Liabilities; or by any other person (as well as from attorneys' reasonable fees and
expenses in connection therewith) on account of the Bank's relationship with the
Borrower, or any guarantor or endorser of the Liabilities (each of which may be defended,
compromised, settled, or pursued by the Bank with counsel of the Bank's selection, but at
the expense of the Borrower).
RIGHT OF SET-OFF. ANY AND ALL DEPOSITS OR OTHER SUMS AT
ANY TIME CREDITED BY OR DUE TO THE BORROWER FROM THE BANK
AND ANY CASH, SECURITIES, INSTRUMENTS OR OTHER PROPERTY OF THE
BORROWER IN THE POSSESSION OF THE BANK, WHETHER FOR
SAFEKEEPING OR OTHERWISE (REGARDLESS OF THE REASON THE BANK
HAD RECEIVED THE SAME OR WHETHER THE BANK HAS CONDITIONALLY
RELEASED THE SAME) SHALL AT ALL TIMES CONSTITUTE SECURITY FOR
ALL LIABILITIES AND FOR ANY AND ALL OBLIGATIONS OF THE BORROWER
TO THE BANK, AND MAY BE APPLIED OR SET OFF AGAINST SUCH
LIABILITIES AND AGAINST THE OBLIGATIONS OF THE BORROWER TO THE
BANK INCLUDING, WITHOUT LIMITATION, THOSE ARISING HEREUNDER, AT
5
ANY TIME AFTER DEFAULT AND WHETHER OR NOT OTHER COLLATERAL IS
THEN AVAILABLE TO THE BANK.
INCORPORATION OF ALL DISCUSSIONS. The within Note and the Loan
Agreement incorporate all discussions and negotiations between the Borrower and the
Bank concerning the repayment, with interest, of the indebtedness evidenced hereby. No
such discussions or negotiations shall limit, modify, or otherwise affect the provisions
hereof No provision of the within Note may be altered, amended, waived, canceled, or
modified except by a written instrument executed, scaled, and acknowledged, by a duly
authorized officer of the Bank.
GENERAL WAIVERS. The Borrower, and each endorser and guarantor of this
Note, respectively waives presentment, demand, notice, and protest, and also waives any
delay on the part of the holder hereof. Each assents to any extension or other indulgence
(including, without limitation, the release or substitution of collateral) permitted the
Borrower or any endorser or guarantor by the Bank with respect to this Note and/or any
collateral given to secure this Note or any extension or other indulgence with respect to
any Liability or any collateral give to secure any Liability or any obligation of any
endorser or guarantor to the Bank.
BANK'S BOOKS AND RECORDS. DEPOSITORY RELATIONSHIP. The
books and records of the Bank showing the account between the Bank and the Borrower
shall be admissible in any action or proceeding and constitute prima facie evidence and
proof of the items contained therein.
FINANCIAL INFORMATION. ADDITIONAL COLLATERAL. The Borrower,
and all guarantors (the "Guarantors"), from time to time within sixty(60) days following
the request of the Bank, shall provide the Bank with such information concerning the
financial condition of the Borrower and Guarantor as the Bank reasonably may request
(including but not limited to financial statements in such form as may be requested by the
Bank and copies of the federal and state income tax returns of the Borrower and
Guarantor). Without limiting the foregoing, (a) the Borrower and Guarantor shall, within
thirty (30) days of the end of each quarter, firn-iish to the Bank an internally prepared
financial statement for the Borrower and Guarantor which shall include at a minimum, a
balance sheet as of the close of such quarter and a statement of profit and loss for that
three (3) month period ending on the last day of such quarter, and (b) on an annual basis
and within thirty (30) days of the end of its fiscal year, furnish to the Bank an internally
prepared financial statement for the Borrower and Guarantor w1rich shall include at a
minimum, a balance sheet as of the close of its fiscal year and a statement of profit and
loss for the twelve (12) month period ending on the last day of its fiscal year, and (c)
commencing with the end of the Borrower's and Guarantor's fiscal year, annually, within
ninety (90) days of the end of the Borrower's and Guarantor's fiscal year, the Borrower
and Guarantor shall furnish the Bank with (i) a complete original signed counterpart of
6
the Borrower's and Guarantor's financial statement which statement shall have been
reviewed by Borrower's and Guarantor's independent certified public accountant (who
shall be subject to the Bank's approval), and (ii) copies of the Borrower's and
Guarantor's signed federal and state income tax returns for the Borrower's and
Guarantor's prior tax year as filed with the United States Internal Revenue Service and
applicable state taxing authorities. The Borrower and Guarantor shall do all such things
and execute all such documents as the Bank may consider necessary or desirable to give
full effect to this Agreement and the Loan Documents and to perfect and preserve the
rights and powers of the Bank hereunder.
NOTICE Any notice, demand or other communication under this Agreement or
otherwise in connection with this transaction shall be duly delivered when mailed,
certified mail, return receipt requested, or delivered in hand, or delivered by a national
overnight carrier, or sent by facsimile with transmission receipt(provided that such notice
is simultaneously given in a manner set forth above), addressed as follows:
If to Borrower:
Robert G. Solomon, Trustee
River Wharf Realty Trust
c/o The Bioengineering Group, Inc.
18 Commercial Street
Salem, MA 01970
If to The Life Initiative:
The Life Insurance Community Investment Initiative, LLC
420 Boylston Street
Boston, MA 02116
Attention: Charles T. Grigsby
With a copy to:
Paul Alan Rufo,Esquire
Kutchin&Rufo, P.C.
155 Federal Street
Boston, MA 02110
For purposes of the calculation of time periods after notice, notice shall be
deemed to have been given effective upon the delivery or upon the placing of the notice
into the mails (as reflected by the date endorsed on the certified or registered mail
receipt).
COSTS OF ENFORCEMENT. The Borrower and each endorser and Guarantor,
jointly and severally, will pay on demand, without limitation, all attorneys' reasonable
fees, out-of-pocket expenses incurred by the Bank's attorneys and all costs incurred by
7
the Bank, including, without limitation, costs and expenses associated with travel on
behalf of the Bank, which costs and expenses are directly or indirectly related to or in
respect of this Note and in the Bank's efforts to collect and/or to enforce any of the
Bank's rights, remedies, or powers against or in respect of the Borrower (whether or not
suit is instituted by or against the Bank).
BANK'S RIGHTS AND REMEDIES. The rights, remedies, powers, privileges
and directions of the Bank hereunder (herein, the "Bank's Rights and Remedies") shall be
cumulative and not exclusive of any rights or remedies which it would otherwise have.
No delay or omission by the Bank in exercising or enforcing any of the Bank's Rights and
Remedies shall operate as, or constitute a waiver thereof. No waiver by the Bank of any
of the Bank's Rights and Remedies or of any default or remedies under any other
agreement with the Borrower, or of any default under any agreement with the Borrower,
or any other person liable under any agreement with the Borrower, or any other person
liable or obligated for or on the Liabilities, shall operate as a waiver of any other of the
Bank's Rights and Remedies and no other agreement or transaction of whatever nature
entered into between the Bank and the Borrower and/or between the Bank and any such
other person at any time shall preclude any other exercise of the Bank's Rights and
Remedies. No waiver by the Bank of any of the Bank's Rights and Remedies on any one
occasion shall be deemed a waiver on any subsequent occasion, nor shall it be deemed a
continuing waiver. All of the Bank's Rights and Remedies, and all of the Bank's rights,
remedies, powers, privileges, and discretions under any other agreement or transaction
with the Borrower, or any such other person, 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.
COPIES. This Note and all documents which have been or may be
hereinafter furnished by the Borrower to the Bank may be reproduced by the Bank by any
photographic,xerographic, facsimile, microfilm, or other process. 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).
. WAIVER OF JURY TRIAL. The Borrower makes the following waiver
knowingly, voluntarily, and intentionally, and understands that the Bank, in the
establishment and maintenance of the Bank's relationship with the Borrower
contemplated by the within Note, is relying thereon. THE UNDERSIGNED HEREBY
IRREVOCABLY WAIVES ANY PRESENT OR FUTURE RIGHT OF THE
UNDERSIGNED, THE BORROWER OR ANY GUARANTOR OR ENDORSER OF
THE BORROWER, OR ANY OTHER SDAILAR PERSON, TO A TRIAL BY JURY OF
ANY CASE OR CONTROVERSY IN WHICH THE BANK IS OR BECOMES A
PARTY (WHETHER SUCH CASE OR CONTROVERSY ARISES OUT OF OR IS IN
RESPECT -OF, ANY RELATIONSHIP AMONGST OR BETWEEN THE
UNDERSIGNED, THE BORROWER, ANY SUCH PERSON, AND THE BANK.
BINDING EFFECT. This Note shall be binding upon the Borrower and each
endorser and guarantor hereof and upon their respective heirs, successors, assigns, and
representatives, and shall inure to the benefit of the Bank and its successors, endorsees,
and assigns.
The liabilities of the Borrower and any endorser or guarantor of this Note are joint
and several; provided, however, the release by the Bank of the Borrower or any one or
more endorser or guarantor shall not release any other person obligated on account of this
Note. Each reference in this Note to the Borrower, any endorser, and any guarantor, is to
such person individually and also to all such persons jointly. No person obligated on
account of this Note may seek contribution from any other person also obligated Unless
and until all liabilities, obligations and indebtedness to the Bank of the person from
whom contribution is sought have been satisfied in full.
COMPLETION OF NOTE. The Borrower and each endorser and guarantor
hereof each authorizes the Bank to complete this Note if delivered incomplete in any
respect. The Bank is authorized to make, from time to time and based upon Bank's
records, notations on its records as to the date and amount of each payment of principal
and interest received by Bank, the principal balance of this Note, and the date to which
interest has been paid. If this Note was not dated when delivered, the Bank is also
authorized to date this Note the date of the Loan Agreement and the other Loan
Documents in connection with their execution.
CHOICE OF LAWS. This Note is delivered to the Bank at one of its offices in
Massachusetts, shall be governed by the laws of the Commonwealth of Massachusetts,
and shall take effect as a sealed instrument. The Borrower and each endorser and
guarantor of this Note each submits to the jurisdiction of the courts of the Commonwealth
of Massachusetts for all purposes with respect to this Note, any collateral given to secure
their respective liabilities, obligations and indebtedness to the Bank, and their respective
relationships with the Bank.
SEC . As security for the payment, performance and observance of the
obligations hereunder, this Note is secured by a mortgage on the property owned by the
Borrower described as 18 Commercial Street, Salem, Massachusetts. This Note is
executed pursuant to the Loan Agreement, and all covenants, representations, agreements,
terms and conditions contained in the Loan Agreement, including, but not limited to,
additional conditions of default, are incorporated in this Note as if fully set forth herein.
9
WITNESS MAYER("The Borrower")
River Wharf Realty Trust
Signed in my Presence
B
Robert G. Solohion, Trustee
(duly authorized)
GA43300ocumentsTromissory Note.DOC
10
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O
M
�I
06/30/99 02:11 Inst 795
BK 15780 PG 119
MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT
THIS MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT is granted
this 30th day of June, 1999 by Robert G. Solomon,Trustee of River Wharf Realty Trust
under Declaration of Trust dated of even date and recorded with Essex County (Southern
District) Registry of Deeds herewith (hereinafter,the "Mortgagor"), with a principal place
of business at 18 Commercial Street, Salem, Massachusetts 01923 to Danvers Savings
Bank, a Massachusetts savings bank with a principal place of business at One Conant
Street,Danvers,Massachusetts 01923 (hereinafter,the "Mortgagee") in consideration of
the mutual covenants contained herein and benefits derived herefrom, and for good and
valuable consideration,the receipt and sufficiency of which are hereby acknowledged, the
Mortgagor agrees to the following terms and conditions:
ARTLCJ,E I -GRANT OF MORTGAGE PiTEREST
To secure the Mortgagoes prompt,punctual, and faithful payment and performance
of all and each of the Morigagoes present and future Liabilities(as that term is defined in
Section 3-1 herein)to the Mortgagee,including,without limitation,those arising under an
SBA Note dated of even date herewith in the original principal amount of Three Hundred
Forty-Two Thousand and 00/100($342,000.00) Dollars, and any extensions, renewals,
substitutions, modifications, or replacements thereof(hereinafter,the "Note"), the
Mortgagor hereby grants, mortgages, assigns, and transfers to the Mortgagee with
MORTGAGE COVENANTS,the Collateral (as that term is defined in Section 3-3 herein).
The Mortgagor intends to convey and hereby does convey to the Mortgagee with
MORTGAGE COVENANTS (to be included within the Collateral),the premises conveyed
to the Mortgagor by deed from Thomas A. Sullivan dated of even date herewith and
recorded with the Essex County(Southern District) Registry of Deeds herewith.
ARTICLE 2-GRANT OF SECURITY INTEREST AND ASSIGNMENT
2-1. Security Interest. To secure the Mortgagor's prompt, punctual, and faithful
payment and p�r–f—ormance of all and each of the present and future Liabilities to the
Mortgagee, including, without limitation, those arising under the Note, the Mortgagor
hereby grants to the Mortgagee a continuing security interest in and to, and assigns to the
Mortgagee,the Collateral (as that term is defined in Section 3-3 herein).
2-2. Financing Statement. This Agreement is intended to take effect as a security
agreement and is to be filed with the above Registry of Deeds in lieu of a financing
statement pursuant to Massachusetts General Laws, Chapter 106, Section 9-402
(hereinafter, the "UCC").
2-3. Power of Attoma. The Mortgagor hereby irrevocably constitutes and
appoints the Mortgagee as the Mortgagor's true and lawful attorney for the purpose of
signing and filing or recording on behalf of the Mortgagor any financing or other statement
in order to establish,perfect or protect the Mortgagee's interest in the Collateral.
ARTICLE 3 -CERTAIN DEFINITIONS
As used herein,the following terms shall have the following meanings:
3-1. Liabilities. "Liabilities" includes, without limitation, any and all liabilities,
debts, and obligations of the Mortgagor to the Mortgagee, now or hereafter,each of every
kind,nature and description. "Liabilities" also includes, without limitation, each obligation
to repay all loans, advances, indebtedness, notes, obligations, and amounts now or
BK 15780 PG 120
hereafter at any time owing by the Mortgagor to the Mortgagee(including all future
advances or the like whether or not given pursuant to a commitment by the Mortgagee),
whether or not any of such are liquidated, unliquidated,secured,unsecured, direct,
indirect, absolute,contingent, or of any other type,nature, or description, or by reason of
any cause of action which the Mortgagee now or hereafter may hold against the Mortgagor.
"Liabilities" also includes, without limitation,all notes and other obligations of the
Mortgagor now or hereafter assigned to or held by the Mortgagee, each of every kind,
nature, and description. "Liabilities" also includes,without limitation, all interest and other
amounts which may be charged to the Mortgagor and/or which may be due from the
Mortgagor to the Mortgagee from time to time and all costs and expenses now or hereafter
incurred or paid by the Mortgagee in respect of this and any other agreement between the
Mortgagee and the Mortgagor from time to time and all costs and expenses now or hereafter
incurred or paid by the Mortgagee in respect of this and any other agreement between the
Mortgagor and the Mortgagee or instrument furnished by the Mortgagor to the Mortgagee
(including,without limitation, Costs of Collection,attorneys' reasonable fees, and all court
and litigation costs and expenses). "Liabilities" also includes, without limitation, any and
all obligations of the Mortgagor to act or to refrain from acting in accordance with the
terms,provisions, and covenants of the within Agreement and of any other agreement
between the Mortgagor and the Mortgagee or instrument now or hereafter furnished by the
Mortgagor to the Mortgagee. As used herein, the term "indirect" includes, without
limitation, all obligations and liabilities which the Mortgagee may now or hereafter incur or
become liable for on account of or as a result of any transactions between the Mortgagee
and the Mortgagor including,without limitation,any which might arise out of any Letter of
Credit or similar instrument issued by the Mortgagee for the account of the Mortgagor and
any which might arise out of any action brought or threatened against the Mortgagee, any
guarantor or endorser of the Liabilities of the Mortgagor or any other person in connection
with the Liabilities. The term"indirect" also refers to any direct or contingent liability of
the Mortgagor to make payment towards any obligation now or hereafter held by the
Mortgagee(including,without limitation,on account of any industrial revenue bond)to the
extent so held by the Mortgagee. The Bank's books and records shall be prima facie
evidence of the Mortgagor's indebtedness to the Mortgagee. In the event the Mortgagor is
a partnership or includes more than one individual or entity, the term "Liabilities" as used
herein shall also mean and refer to the Liabilities of any one of the general partners thereof
or any one of the individuals or entities comprising the Mortgagor or the joint Liabilities of
any combination of or all of such general partners or such individuals or entities.
3-2. Costs of Collection. "Costs of Collection" includes, without limitation, all
attorneys'reasonable fees, and all out-of-pocket expenses incurred by the Mortgagee's
attorneys, and all costs incurred by the Mortgagee in the administration of the Liabilities,
this Agreement, and all other documents, instruments, and agreements executed in
connection with or relating to the Liabilities, including,without limitation,costs and
expenses associated with travel on behalf of the Mortgagee. "Costs of Collection" a]so
includes, without limitation, all attorneys'reasonable fees, out of pocket expenses incurred
by the Mortgagee's attorneys, and all costs incurred by the Mortgagee, including, without
limitation,costs and expenses associated with travel on behalf of the Mortgagee, which
costs and expenses are directly or indirectly related to or in respect of the Mortgagee's
efforts to collect or enforce any of the Liabilities and/or to exercise or enforce any of the
Mortgagee's rights, remedies, or powers against or in respect of the Mortgagor and/or any
other guarantor or person liable in respect of the Liabilities (whether or not suit is instituted
in connection with such efforts). The Costs of Collection shall be added to the Liabilities
of the Mortgagor to the Mortgagee, as if such had been lent, advanced, and credited by the
Mortgagee to, or for the benefit of,the Mortgagor, and shall accrue interest at the highest
rate of interest charged relative to any of the Liabilities.
2
BK 15780 PG 121
3-3. Collateral. "Collateral" shall include all and each of the following, whether
singly or collectively, whether real property,personal property, or a combination thereof,
whether now owned or due or now existing, or in which the Mortgagor has an interest, or
hereafter, at any time in the future, acquired, arising, or to become due, or in which the
Mortgagor obtains an interest, and all proceeds,products, substitutions and accessions of
or to any of the following:
(a) the land with the buildings and improvements whether now existing
or hereafter constructed thereon located at 18 Commercial Street, Salem,
Massachusetts all as more particularly described on Exhibit A annexed hereto;
(b) all furnaces,ranges,heaters, plumbing goods, gas and electric fixtures,
screens, screen doors, mantels, shades, storm doors and windows, awnings, oil
bumers and tanks or other equipment, gas or electric refrigerators and refrigerating
systems, ventilating and air conditioning apparatus and equipment, door bell and
alarm systems, sprinkler and fire extinguishing systems, portable or sectional
buildings, and all other fixtures of whatever kind or nature owned by the
Mortgagor, now or in the future contained in or on the Mortgaged Premises, and
any and all similar fixtures hereinafter installed in the Mortgaged Premises, and any
and all similar fixtures hereinafter installed in the Mortgaged Premises in any
manner which renders such articles usable in connection therewith;
(c) all easements,covenants, agreements and rights which are
appurtenant to or benefit the Mortgaged Premises;
(d) all machinery,equipment, furniture, inventory,building supplies,
and appliances, owned by the Mortgagor, used or useful in the construction,
operation,maintenance,or occupation of the Mortgaged Premises or any portion or
unit thereof,
(e) all leases,contracts or agreements entered into, for the lease, rental,
hire or use by the Mortgagor of any property of the same nature as the foregoing
Subparagraphs (b)and(d) in connection with the construction, operation,
maintenance or occupation of the Mortgaged Premises;
M all leases, tenancies,and occupancies, whether written or not,
regarding all or any portion of the foregoing(a) through (e)(hereinafter, the
"Leases"), all guarantees and security relating thereto, together with all income and
profit arising therefrom or from any of the foregoing Subparagraphs (a) through
(e), and all payments due or to become due thereunder(hereinafter, the "Rental
Payments"), including, without limitation, all rent, additional rent, damages,
insurance payments, taxes, insurance proceeds, condemnation awards, or any
payments with respect to options contained therein (including any purchase option);
(g) all contracts and agreements(together with the easements,
covenants, agreements and rights referred to in Section 3-3 (c), above, and the
leases,contracts, and agreements referred to in Section 3-3(e), above, hereinafter,
the "Contracts")licenses,permits and approvals(hereinafter,the "Licenses") and
warranties and representations,relative to the use, operation, management,
construction,repair or service of any of the foregoing Subparagraphs (a)through
(f);
3
BK 15780 PG 122
(h) all of the Mortgagor's right, title and interest arising out of any
agreement to sell a portion or portions of the Mortgaged Premises;
0) any other property of the Mortgagor in which the Mortgagee may in
the future be granted an interest;
0) all funds held by the Mortgagee as tax or insurance escrow
payments:
(k) all proceeds received from the sale,exchange,collection or other
disposition of any of the foregoing Subparagraphs (a) through 0), including
without limitation,equipment, inventory, goods, documents, securities, accounts,
chattel paper, and general intangibles(as each of those terms is defined in die
UCC); all insurance proceeds relating to all or any portion of the foregoing
Subparagraphs (a) through 0); and all awards, damages, proceeds, or refunds from
any state,local,federal or other taking of, and all municipal tax abatements relating
to, all or any portion of the foregoing Subparagraphs (a) through 0); and
W all rights,remedies,representations, warranties, and privileges
pertaining to any of the foregoing Subparagraphs (a)through (k).
3-4. Mortgag-ed Premises. "Mortgaged Premises" shall mean and refer to that
portion of the(f—ollateral described in Sections 3-3(a)through 3-3(c) herein.
3-5. Personal P=ea. "Personal Property" shall mean and refer to all of the
Collateral other than that portion of the Collateral which is included within the definition of
Mortgaged Premises.
3-6. Receivables Collateral. "Receivables Collateral" shall mean and rrfer to all
Rental Payments and all rights to payments now held, or in which the Mortgagor has an
interest or hereafter acquired by the Mortgagor, or in which the Mortgagor obtains an
interest, arising out of,constituting a part of, or relating to all or a portion of the Collateral.
ARTICLE 4-REPRESENrATLONS,WARRANTIES AND COVENANTS
4-1. Existence and AuthoriiX. The Declaration of Trust referred to above has not
been and will not be amended, modified or terminated. The execution and delivery of this
Agreement, and of any other instrument executed and delivered in connection herewith,
constitutes representations by the Mortgagor and the individual(s) signing this Agreement
and said instruments that such execution and delivery is made in accordance with the terms
and provisions of said Declaration of Trust and with the authorization of, to the extent
required, the trustees and beneficiaries of the Mortgagor, and that it does bind the
Mortgagor.
4-2. Insurance. The Mortgagor hereby covenants and agrees to maintain public
liability insurance, flood hazard insurance, risk insurance,builder's risk insurance, and
such other insurance against such casualties or contingencies as may be required by the
Mortgagee in sums and in companies satisfactory to the Mortgagee; provided, the property
insurance on the Collateral shall be for no less than 100% of full replacement value thereof
(meeting all co-insurance requirements). All policies shall contain a provision requiring at
least twenty(20) days advance notice to the Mortgagee before any cancellation or
modification. All insurance on the Collateral shall be for the benefit of and deposited with
the Mortgagee, shall be first payable to the Mortgagee,and shall include such endorsement
in favor of the Mortgagee,as the Mortgagee may specify. The endorsement shall provide
4
'3
BK 15780 PG 12
that the insurance,to the extent of the Mortgagee's interest therein, shall not be impaired or
invalidated, in whole or in part,by reason of any act or neglect of the Mortgagor, or failure
by the Mortgagor to comply with any warranty or condition of the policies. The Mortgagor
shall advise the Mortgagee of each claim made by the Mortgagor under any policy of
insurance which covers all or any portion of the Collateral and, at the Mortgagee's option in
each instance, will permit the Mortgagee, to the exclusion of the Mortgagor,to conduct the
adjustment of each such claim. The Mortgagor hereby appoints the Mortgagee as the
Mortgagor's attorney in fact to obtain, adjust, settle, and cancel any insurance described in
this section and to endorse in favor of the Mortgagee any and all drafts and other
instruments with respect to such insurance. The within appointment, being coupled with
an interest,is irrevocable until this Agreement is terminated by a written instrument
executed by a duly authorized officer of the Mortgagee. The Mortgagee shall not be liable
for any loss sustained on account of any exercise pursuant to said power unless such loss
is caused by the willful misconduct and actual bad faith of the Mortgagee. The Mortgagee
may, at its option,make any proceeds available to the Mortgagor to repair or reconstruct the
Collateral (subject to such disbursement procedures as the Mortgagee may establish) or
apply any proceeds of such insurance against the Liabilities, whether or not such have
matured, in accordance with Section 9-6 herein.
4-3. Statuto1y Compliance. The Mortgagor shall comply with, shall not use any
of the Collateral in violation of, and shall cause the Collateral to be in compliance with,
each and every statute, regulation,ordinance, decision, directive, order, by-law,or rule of
any federal, state, municipal,and other govemmental authority which has or claims
jurisdiction over the Mortgagor or any of the CollateraL The Mortgagor has obtained, and
will maintain in full force and effect, all licenses,permits and approvals necessary for the
use, maintenance,construction and operation of the Collateral, and at the option of the
Mortgagee, will do all things and execute all such documents as the Mortgagee may request
to assign the Mortgagor's rights therein to the Mortgagee.
4-4. Title to Collateral. The Mortgagor is, and shall hereafter remain, the owner
of the Collatera�_I—fi-ee and clear of all voluntary or involuntary liens,encumbrances,
attachments, security interests,purchase money security interests, assignments, mortgages,
charges or other liens or encumbrances of any nature whatsoever, with the exception of(a)
the mortgage and security interest created herein,and(b) liens for real estate taxes not yet
due and payable.
4-5. Condition of Collateral. The Collateral is, and shall hereafter remain, in
good repair, well mai tained and in goo working order. The Mortgagor shall make all
necessary repairs, acements, additions and improvements to maintain the Collateral in
good order and condition. The Mortgagor shall not cause or permit to be suffered any
waste, destruction or loss (whether or not such loss is insured against) to the Collateral or
any part thereof,or use any of the Collateral in violation of any applicable statute,
regulation, ordinance,decision,directive, order, by-law, or rule,or any policy of
insurance thereon.
4-6. InsW&tion of Collateral. From time to time as the Mortgagee and the
Mortgagee's representatives may request, the Mortgagor shall accord the Mortgagee and
such representatives access to the Collateral and all books and records relating to the use,
operation,construction, or management thereof, and in connection with such access, will
permit the Mortgagee and such representatives to inspect the Collateral, verify any
information contained therein or relating thereto,and verify the Mortgagor's compliance
with the provisions of this Agreement or of any other agreement between the Mortgagor
and the Mortgagee and any instrument to be fumished by the Mortgagor to the Mortgagee.
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4-7. Taxes and other Costs. To the extent payment is not provided for in Section
4-9 herein, the Mortgagor shall pay when due all real and personal property taxes,
assessments, charges,franchises, income, unemployment, old age benefits, withholding,
sales, and other taxes assessed against it, and all insurance premiums relative to the
Collateral. The Mortgagor shall deliver to the Mortgagee,upon request of Mortgagee,
evidence of the payment by the Mortgagor of all such items. The Mortgagor agrees that the
Mortgagee may, at its option, and from time to time,pay any taxes or insurance premiums,
the payment of which is then due, discharge any liens or encumbrances on any of the
Collateral,or take any other action that the Mortgagee may deem proper to repair, insure,
maintain,or preserve any of the Collateral or the Mortgagee's rights therein. The
Mortgagor will pay to the Mortgagee on demand all amounts so paid or incurred by the
Mortgagee. The obligation of the Mortgagor to pay such amounts shall be included in the
Liabilities of the Mortgagor to the Mortgagee and shall accrue interest at the highest rate of
interest charged relative to any of the Liabilities.
4-8. ProI&M of Third Parties. The Mortgagor shall not suffer or permit any
item of property owned by a third party to be affixed, attached,or installed on,upon or
within, or be located at, the Mortgaged Premises, or any portion or unit thereof, which may
be subject to any security interest, lien,encumbrance or charge which is prior or superior to
the interest granted herein.
4-9. Tax and Insurance Escrow. In addition to other payments herein required,
the Mortgagor shall, at the Mortgagee's option, exercisable at any time or from time to
time, now or in the future,pay to the Mortgagee monthly on the first of each month,or
such other day of the month as may be designated by the Mortgagee during the term hereof,
and for so long as the Liabilities secured by this Agreement shall remain unpaid, an amount
equal to one-twelfth(1/12th)of the municipal taxes and assessments which the Mortgagee
estimates will become payable on account of the Mortgaged Premises for the year next
succeeding any period for which such taxes and assessments have been paid or escrowed
hereunder, and/or one-twelfth (1/12th)of the insurance premiums which the Mortgagee
estimates will become payable on account of the Collateral for the year next succeeding any
period for which such premiums have been paid or escrowed hereunder,sufficient to
enable the Mortgagee to accumulate at least thirty (30) days prior to the dates upon which
such municipal taxes and assessments or insurance premiums are payable the amounts then
due and payable. Further,the Mortgagor shall pay to the Mortgagee on demand the amount
of any deficiency of the funds so collected when the actual amount of such taxes and
assessments or insurance premiums become known. The Mortgagee shall maintain such
funds in a non-interest bearing account which may be commingled with other funds of the
Mortgagee. The Mortgagee shall apply said funds to the payment of municipal taxes and
assessments or insurance premiums, as applicable, to the extent such amounts are
determined by the Mortgagee to be due and payable. In the event the Mortgagee collects
such tax or insurance payments hereunder,the Mortgagor shall deliver to the Mortgagee the
bills representing any such amounts within five(5) days of the receipt thereof by the
Mortgagor. Notwithstanding the provisions of this Section 4-9,upon an occurrence of an
event which is,or, solely with the passage of time, would be, and Event of Default
hereunder, the Mortgagee shall not be required to apply such funds as provided above, and
may set off such funds against the Liabilities and apply any such funds towards the
Liabilities in accordance with Section 9-6, hereunder.
4-10. —Liti2ation. There is no suit, action,proceeding, or investigation presently
pending or threatened against the Mortgagor, or any of the Collateral, which, if determined
adversely, would have a material adverse effect upon the Mortgagor or the Collateral.
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4-11. Future Actions. The Mortgagor shall do all such things and execute all such
documents from time to time hereafter as the Mortgagee may request in order to carry into
effect the provisions and intent of this Agreement and to protect,perfect, and maintain the
Mortgagee's interest in and to the Collateral.
4-12. Additional Information. The Mortgagor shall furnish the Mortgagee with
such financial information or other information pertaining to the operation of the Mortgagor
and the Collateral as the Mortgagee may from time to time request. 'Me Mortgagor further
agrees that the Mortgagee may contact any third party,including, without limitation, any
lienholders on the Collateral, any insurance company insuring the Collateral, and any
financial institution with which the Mortgagor maintains a loan or depository relationship,
to obtain information relating to the Receivables Collateral and the ownership, use,
operation, maintenance or construction of the Collateral. The Mortgagor hereby authorizes
each such third party to release such information to the Mortgagee and agrees to execute
any documents requested by the Mortgagee to enable the Mortgagee to obtain such
information. The Mortgagor agrees to provide the Mortgagee with rent rolls for the
Mortgaged Premises and Mortgagor's financial and operating statements prepared by a
Mortgagor's certified public accountants acceptable to the Mortgagee within one hundred
twenty (120)days of the close of each calendar year. The Mortgagor shall provide the
Bank with such other financial information as the Bank may request from time to time,
including without limitation, the personal financial statements of Wendi Goldsmith,
individually and any other guarantors of the Note. To enable the Mortgagee to monitor the
financial condition of the Mortgagor,Mortgagor shall maintain its primary depository
relationship with Mortgagee.
4-13. Hazardous Waste. (a) The Mortgagor represents that neither the Mortgagor
nor any person for whose conduct the Mortgagor is responsible ever:
(i) owned,occupied, or operated a site at which or vessel on which any
hazardous material or oil was or is stored (except if such storage was or is
in compliance with all laws,ordinances, and regulations pertaining thereto)
transported,or disposed(the terms site, vessel, and hazardous material
respectively being used in this Section with the meaning given those terms
in Massachusetts General Laws, Chapter 2 1 E, as amended);
(ii) directly or indirectly transported,or arranged for the transport,of any
hazardous material or oil (except if such transportation was or is in
compliance with all laws,ordinances and regulations pertaining thereto);
(iii) caused or was legally responsible for any release, or threat of release,
of any hazardous material or oil;
(iv) received notification from any federal, state,or other governmental
authority of: any potential,known,or threat of release of any hazardous
material or oil on or from the Collateral,or any site or vessel owned,
occupied, or operated either by the Mortgagor or any person for whose
conduct the Mortgagor is responsible or whose liability may result in a lien
on the Collateral;or the occurrence of any expense or loss by such
governmental authority, or by any other person, in connection with the
assessment,containment,or removal of any release,or threat of release, of
any hazardous material or oil from the Collateral or any such site or vessel.
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(b) The mortgagor represents and warrants that no hazardous material or oil was
ever, or is now, stored on (except in compliance with all laws, ordinances, and regulations
pertaining thereto),transported, or disposed of on the Collateral.
(c) The Mortgagor shall:
(i) not store(except in compliance with all laws, ordinances, and
regulations pertaining thereto),or dispose of any hazardous material or oil on the
Collateral, or on any other site or vessel owned, occupied, or operated either by the
Mortgagor, or by any person for whose conduct the Mortgagor is responsible;
(ii) neither directly nor indirectly transport or arrange for the transport of any
hazardous material or oil(except if such transportation was or is in compliance with
all laws,ordinances and regulations pertaining thereto);
(iii) take all such action,including,without limitation,the conducting of
engineering tests(at the sole expense of the Mortgagor) (x) to confirm that no
hazardous material or oil is or ever was released on the Collateral (y)to assess,
contain,and remove any such hazardous material or oil on the Collateral; and
(iv) provide the Mortgagee with written notice: (x) upon the Mortgagor's
obtaining knowledge of any potential or known release, or threat of release, of any
hazardous material or oil at or from the Collateral, or any other site or vessel
owned, occupied,or operated by the Mortgagor or by any person for whose
conduct the Mortgagor is responsible or whose liability may result in a lien on the
Collateral; (y) upon the Mortgagoes receipt of any notice to such effect from any
federal, state,or other governmental authority; and (z)upon the Mortgagor's
obtaining knowledge of any occurrence of any expense or loss by such
governmental authority in connection with the assessment,containment, or removal
of any hazardous material or oil for which expense or loss the Mortgagor may be
liable or for which expense a lien may be imposed on the Collateral.
(d) The Mortgagor shall indemnify,defend,and hold the Mortgagee harmless of
and from any claim brought or threatened against the Mortgagee by the Mortgagor, any
guarantor or endorser of the Liabilities,or any governmental agency or authority or any
other person (as well as from attorneys' reasonable fees and expenses in connection
therewith) on account of the presence of hazardous material or oil on the Mortgaged
Premises, or the failure by the Mortgagee to comply with the terms and provisions hereof
(each of which may be defended, compron-dsed, settled, or pursued by the Mortgagee with
counsel of the Mortgagee's selection,but at the expense of Mortgagor). The within
indemnification shall survive payment of the Liabilities and/or tem-iination, release, or
discharge executed by the Mortgagee in favor of the Mortgagor.
4-14. Mort2a2e Conditions. This Mortgage, Security Agreement and Assignment
is upon the STATUTORY CONDITION,upon breach of which, the Mortgagee shall have
the STATUTORY POWER OF SALE.
4-15. Compliance with Leases and Contracia. The Mortgagor is not in default
under any terms and conditions of any Lease or Contract and shall, during the term of this
Agreement,perform all of the obligations of the Mortgagor under any such Lease or
Contract within the period that such performance is required. The Mortgagor has entered
into, and will maintain in full force and effect, all Contracts necessary for the use,
maintenance,construction and operation of the Collateral, and at the option of the
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Mortgagee, will do all things and execute all such documents as the Mortgagee may request
to assign the Mortgagor's rights therein to the Mortgagee.
4-16. Collection of Rents. The Mortgagor agrees not to collect or accept the
payment of any Rental Payments,or other income or profit from, or on account of, any
Lease or the use or occupation of the Collateral, in advance of the time when such payment
becomes due unless such amount is delivered to the Mortgagee to be applied toward the
Liabilities in accordance with Section 9-6 hereof.
4-17. Modification of Lease and Con The Mortgagor will not modify or
consent to the modification of any provision of,or cancel,terminate or accept the early
cancellation or termination,of any Lease or Contract without first obtaining the written
consent of the Mortgagee.
4-18. Leases. The Mortgagor shall not enter into any Lease without the prior
written consent of the Mortgagee. The Mortgagor shall furnish the Mortgagee, upon the
request of the Mortgagee,copies of each and every Lease and any other information relative
to each such Lease and the tenant thereunder. Each such Lease shall be in form and
substance satisfactory to the Mortgagee and,without limiting the generality of the
foregoing, shall include a provision confirming that the Lease is subordinate to the lien of
this Agreement and consenting to the assignment provided for herein of the Lease to the
Mortgagee. The Mortgagor will take all action as may be requested by the Mortgagee in
furtherance of the rights of the Mortgagee hereunder, including,without limitation,
obtaining estoppel certificates and agreements (in form satisfactory to the Mortgagee)from
each tenant subordinating the Lease to the lien of this Agreement, and consenting to the
assignment of the Lease provided for herein, and taking all appropriate action to lease any
portions of the Mortgaged Premises not occupied by the Mortgagor.
4-19. Eminent Domain The Mortgagor shall advise the Mortgagee of any
proposed taking by any State,Federal or Local authority of all or a portion of the
Collateral. The Mortgagor shall cooperate with the Mortgagee in connection with the
negotiation of any such taking and any awards or damages payable to the Mortgagor in
connection therewith and shall take any action relating thereto requested by the Mortgagee.
The Mortgagor will permit the Mortgagee, at the Mortgagee's option in each instance, to the
exclusion of the Mortgagor,to conduct the adjustment of each such damage or award
claim. The Mortgagor hereby appoints the Mortgagee as the Mortgagor's attorney in fact to
obtain, adjust and settle,each such damage or award claim and to endorse in favor of the
Mortgagee any and all drafts and other instruments with respect thereto. The within
appointment, being coupled with an interest, is irrevocable until this Agreement is
terminated by a written instrument executed by a duly authorized officer of the Mortgagee.
The Mortgagee shall not be liable for any loss sustained on account of any exercise
pursuant to said power unless such loss is caused by the willful niisconduct and actual bad
faith of the Mortgagee. The Mortgagee may apply any proceeds of such taking against the
Liabilities,whether or not such have matured,in accordance with Section 9-6 herein.
4-20. Abatern . The Mortgagor will notify the Mortgagee of any action which
the Mortgagor intends to take with respect to the abatement of any municipal taxes or
assessments and shall initiate any such abatement action at the request of the Mortgagee.
The Mortgagor will advise the Mortgagee as to the status of any such action and will not
compromise or settle any such action without the prior written consent of the Mortgagee.
The Mortgagor hereby appoints the Mortgagee as the Mortgagor's attorney in fact,effective
after the occurrence of any event which is,or solely with the passage of time, would be, an
Event of Default hereunder,to initiate,prosecute,obtain, adjust, and settle, any such
abatement action and to endorse in favor of the Mortgagee any and all drafts and other
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instruments with respect thereto. .The within appointment,being coupled with an interest,
is irrevocable until this Agreement is terminated by a written instrument executed by a duly
authorized officer of the Mortgagee.The Mortgagee shall not be liable for any loss
sustained on account of any exercise pursuant to said power unless such loss is caused by
the willful misconduct and actual bad faith of the Mortgagee. After the occurrence of any
event which is,or solely with the passage of time would be, an Event of Default hereunder,
the Mortgagee may apply any proceeds of such abatement action against the Liabilities,
whether or not such have matured,in accordance with Section 9-6 herein.
4-2 1. SuRLnor Mortgage. The Mortgagor does hereby covenant and agree to
faithfully and fully comply with and abide by each and every term,covenant, and condition
of any superior mortgage or mortgages on the Mortgaged Premises. The Mortgagee is
hereby expressly authorized,permitted,and directed, in its sole discretion, and at its
option, to advance all sums necessary to cure any default under any such mortgage. The
Mortgagor further covenants and agrees not to modify,change, alter, or extend any of the
terms or conditions of any such prior mortgage, and not to request, accept, or allow the
disbursement hereafter of any advances which are to be secured by any such mortgage.
4-22. Material Occurrence. The Mortgagor shall promptly notify the Mortgagee of
the occurrenc any event which may have a material effect on the Collateral or the
Mortgagor.
4-23. ComRIiance with Covenants. The Mortgagor shall not indirectly do or cause
to be done, any act which,if done directly by the Mortgagor,would breach any covenant
contained herein,or in any other agreement between the Mortgagor and the Mortgagee.
4-24. Other RepMentations. The representations,covenants, and warranties
herein are in addition to any others,previously,presently,or hereafter made by the
Mortgagor to or with the Mortgagee in any other instrument.
ARTICLE 5 -MORTGAGOR'S USE OF COLLATERAL
Unless and until the occurrence of any event which is, or solely with the passage of
time would be, an Event of Default hereunder,the Mortgagor shall be authorized to
occupy,operate,manage, hold, or otherwise use the Collateral in the ordinary and
reasonable course of the Mortgagor's business and collect, when due, the Receivables
Collateral, subject, however,to the terms and provisions hereof.
ARITCLE 6-EIIENTS OF DEFAULT
Upon the occurrence of any one or more of the following (hereinafter, the "Events
of Default"), any and all Liabilities of the Mortgagor to the Mortgagee shall become
immediately due and payable, without notice or demand, at the option of the Mortgagee.
The occurrence of any such Event of Default shall also constitute, without notice or
demand,a default under all other agreements between the Mortgagee and the Mortgagor or
instruments and papers given the Mortgagee by the Mortgagor, whether now existing or
hereafter arising.
6-1. The failure by the Mortgagor to pay when due any amount then owing by
the Mortgagor to the Mortgagee.
6-2. Ile failure by the Mortgagor to promptly,punctually, and faithfully
perform, discharge, or comply with any Liability.
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6-3. The determination by the Mortgagee that any representation or warranty
now or hereafter made by the Mortgagor to the Mortgagee, whether herein,or in any other
document, instrument, agreement,or paper,was not true or accurate when given.
6-4. The occurrence of any event such that any indebtedness of the Mortgagor
for borrowed money from any lender other than the Mortgagee could be accelerated,
notwithstanding that such acceleration has not taken place.
6-5. The occurrence of any event of default under any agreement between the
Mortgagee and the Mortgagor, or under any instrument or paper given the Mortgagee by
the Mortgagor, whether such agreement, instrument,or paper now exists or hereafter arises
(notwithstanding that the Mortgagee may not have exercised its rights upon default under
any such other agreement, instrument or paper).
6-6. Any act by, against,or relating to the Mortgagor, or its property or assets,
which act constitutes the application for,consent to,or sufferance of the appointment of a
receiver, trustee,or other person (pursuant to court action or otherwise) over all, or any
part of, the Mortgagor's property;the granting of any trust mortgage or execution of an
assignment for the benefit of the creditors of the Mortgagor, or the occurrence of any other
voluntary or involuntary liquidation or extension of debt agreement for the Mortgagor; the
admission by the Mortgagor of its inability to pay its debts as they mature; adjudication of
insolvency relative to the Mortgagor;the entry of an order for relief or similar order with
respect to the Mortgagor in any proceeding pursuant to the Bankruptcy Reform Act of 1978
or any other federal statute dealing with bankruptcy (hereinafter,generally the "Bankruptcy
Code"); the filing of any complaint, application,or petition by or against the Mortgagor
initiating any matter in which the Mortgagor is or may be granted any relief from its debts
pursuant to the Bankruptcy Code or pursuant to any other insolvency statute or procedure
(provided, it shall not be an Event of Default hereunder if such complaint, application or
petition is being diligently contested until the earlier of(x)the entry of an Order For Relief
against the Mortgagor, or (y)the expiration of Forty Five (45)days,without dismissal of
such complaint, application or petition); the calling or sufferance of a meeting of creditors
of the Mortgagor;the meeting by the Mortgagor with a formal or informal creditors'
committee;the offering by or entering into by the Mortgagor of any composition, extension
or other arrangement seeking relief or extension of its debts;or the initiation of any other
judicial or non-judicial proceeding or agreement by, against,or including the Mortgagor
which seeks or intends to accomplish a reorganization or arrangement with creditors.
6-7. The entry of any judgment against the Mortgagor, which judgment is not
satisfied or appealed from and bonded over to the satisfaction of the Mortgagee(with
execution or similar process stayed) within fifteen (15) days of its entry.
6-8. The imposition of any lien upon any assets of the Mortgagor which lien is
not discharged, satisfied,or dissolved by bonding or in some other manner satisfactory to
the Mortgagee,within fifteen (15) days of its imposition.
6-9. The service of any process upon the Mortgagee seeking to attach by mesne
or trustee process any funds of the Mortgagor on deposit with the Mortgagee.
6-10. The death, legal incapacity,termination of the existence, dissolution,
winding up, or liquidation of the Mortgagor.
6-11. The sale, transfer, assignment, or other disposition of any of the capital
stock or any partnership or beneficial interest of the Mortgagor, or the sale, transfer,
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assignment,pledge,mortgage or other disposition or grant of any interest in all or any
portion of the Collateral.
6-12. The occurrence of any of the events described in this Article with respect to
any guarantor,endorser,or surety to the Mortgagee of the Liabilities as if such person were
the "Mortgagor" described therein.
6-13. The breach of the Statutory Condition contained herein, upon which breach,
the Mortgagee shall have the Statutory Power of Sale.
ARTICLE 7 -RIGHTS AND REMEDIES UPON DEFAULT
7-1. Rights and Remedies Won Defaul . Upon the occurrence of any Event of
Default,or at any time thereafter,the Mortgagee shall have all the rights of a mortgagee and
a secured party under the Massachusetts General Laws,in addition to which the Mortgagee
shall have all of the following rights and remedies:
(a) with or without taking possession, to collect the Receivables
Collateral;
(b) to take possession of all or a portion of the Collateral;
(c) with or without taking possession of the Collateral, to sell, lease, or
otherwise dispose of any or all of the Collateral in its then condition or following
such preparation or processing as the Mortgagee deems advisable;
(d) with or without taking possession of the Collateral and without
assurning the obligations of the Mortgagor thereunder, to exercise the rights of the
Mortgagor under, to use,or to benefit from any of the Contracts, Leases, and
Licenses;
(e) with or without taking possession of the Collateral and with or
without bringing any action or proceeding,either directly,by agent,or by the
appointment of a receiver,manage, lease, sublease,or operate the Collateral on
such terms as the Mortgagee,in its sole discretion,deems proper or appropriate;
(f) to apply all or any portion of the Collateral, or the proceeds thereof,
towards (but not necessarily in complete satisfaction of)the Liabilities;
(g) to exercise the Statutory Power of Sale;
(h) to foreclose any and all rights of the Mortgagor in and to the
Collateral, whether by sale, entry,or in any other manner provided for hereunder or
under Massachusetts General Laws; and
(i) to elect,upon the discretion of the Mortgagee,to treat any or all of
the Leases as superior to the lien of the within Mortgage, Security Agreement and
Assignment.
7-2. Sale or Other Disposition of Collateral. 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 Massachusetts General Laws,upon such terms and in such manner as the Mortgagee
deems advisable. The Mortgagee may conduct any such sale or other disposition of the
Collateral upon the Mortgaged Premises,in which event the Mortgagee shall not be liable
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for any rent or charge for such use of the Mortgaged Premises. The Mortgagee may
purchase the Collateral, or any portion of it, at any sale held under this Article. With
respect to any Collateral to be sold pursuant to the UCC,the Mortgagee shall give the
Mortgagor at least seven(7)days written notice of the date, time, and place of any
proposed public sale,or such additional notice as may be required under Massachusetts
General Laws, and of the date after which any private sale or other disposition may be
made. The Mortgagee may sell any of the Personal Property as part of the Mortgaged
Premises, or any portion or unit thereof, at the foreclosure sale or sales conducted pursuant
hereto. The Mortgagor 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
Collateral is included at any foreclosure sale conducted pursuant hereto,a single total price
for the Collateral, or such part thereof as is sold, may be accepted by the Mortgagee with
no obligation to distinguish between the application of such proceeds amongst the property
comprising the Collateral. If all or any portion of the Collateral is sold by the Mortgagee,
the Mortgagor shall pay to the Mortgagee on demand an amount equal to one (I%) percent
of the purchase price thereof in addition to the Liabilities and all Costs of Collection
provided for herein. The obligation of the Mortgagor to pay such amounts shall be
included in the Liabilities of the Mortgagor to the Mortgagee and shall accrue interest at the
highest rate of interest charged relative to any of the Liabilities.
7-3. Collection of Receivables Collateral In connection with the exercise by the
Mortgagee of the rights and remedies provided herein:
(a) The Mortgagee may notify any of the Mortgagoes debtors relating
to the Receivables Collateral,either in the name of the Mortgagee or the Mortgagor,
to make payment directly to the Mortgagee or such other address as may be
specified by the Mortgagee, may advise any person of the Mortgagee's interest in
and to the Receivables Collateral, and may collect directly from the obligors thereon
all amounts due on account of the Receivables Collateral;
(b) At the Mortgagee's request, the Mortgagor will provide written
notification to any or all of said debtors concerning the Mortgagee's interest in the
Receivables Collateral and will request that such debtors forward payment thereof
directly to the Mortgagee;
(c) The Mortgagor shall hold any proceeds and collections of any of the
Receivables Collateral in trust for the Mortgagee and shall not commingle such
proceeds or collections with any other funds of the Mortgagor; and
(d) The Mortgagor shall deliver all such proceeds to the Mortgagee
immediately upon the receipt thereof by the Mortgagor in the identical form
received, but duly endorsed or assigned on behalf of the Mortgagor to the
Mortgagee.
7-4. Use and Occupation of Mortgaged Premises In connection with the
Mortgagee's exercise of the Mortgagee's rights under this Article,the Mortgagee may enter
upon,occupy, and use all or any part of the Collateral and may exclude the Mortgagor from
the Mortgaged Premises or any portion thereof as may have been so entered upon,
occupied,or used. The Mortgagee shall not be required to remove any of the Collateral
from the Mortgaged Premises upon the Mortgagee's taking possession thereof, and may
render any Collateral unusable to the Mortgagor.,In the event the Mortgagee manages the
Mortgaged Premises in accordance with Section 7-1(e)herein, the Mortgagor shall pay to
the Mortgagee on demand a reasonable fee for the management thereof in addition to the
Liabilities provided for herein. Further,the Mortgagee may make such alterations,
13
renovations,repairs, and replacements to the Collateral, as the Mortgagee, in its sole
discretion, deems proper or appropriate. The obligation of the Mortgagor to pay such
amounts and all expenses incurred by the Mortgagee in the exercise of its rights hereunder
shall be included in the Liabilities of the Mortgagor to the Mortgagee and shall accrue
interest at the highest rate of interest charged relative to any of the Liabilities.
7-5. Partial Sales. The Mortgagor agrees that, in case the Mortgagee in the
exercise of the Power of Sale contained herein or in the exercise of any other rights
hereunder given,elects to sell in parcels, said sales may be held from time to time and that
the power shall not be exhausted until all of the Collateral not previously released shall have
been sold,notwithstanding that the proceeds of such sales exceed, or may exceed, the
Liabilities then secured thereby.
7-6. Assembly of Collateral The Mortgagee may require the Mortgagor to
assemble the Personal Property and make it available to the Mortgagee, at the Mortgagor's
sole risk and expense, at a place or places which are reasonably convenient to both the
Mortgagee and Mortgagor.
7-7. Power of Attomey. The Mortgagor hereby irrevocably constitutes and
appoints the Mortgagee as the Mortgagor's true and lawful attorney,to take any action with
respect to the Collateral to preserve, protect,or realize upon the Mortgagee's interest
therein, each at the sole risk,cost and expense of the Mortgagor, but for the sole benefit of
the Mortgagee. The rights and powers granted the Mortgagee 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 Collateral; (ii)endorse the name of the Mortgagor
in favor of the Mortgagee upon any and all checks or other items constituting remittances or
proceeds of Receivables Collateral; (iii) sign and endorse the name of the Mortgagor on,
and to receive as secured party, any of the Collateral; (iv) sign and file or record on behalf
of the Mortgagor any financing or other statement in order to perfect or protect the
Mortgagee's security interest; (v)enter into leases and/or subleases relative to all or a
portion of the Mortgaged Premises; (vi)exercise the rights of the Mortgagor under any
Contract, Lease, or License; and/or(vii)manage, operate, maintain, or repair the
Mortgaged Premises. The Mortgagee shall not be obligated to perform any of such acts or
to exercise any of such power, and shall not be responsible to Mortgagor except for the
Mortgagee's willful misconduct and actual bad faith. All powers conferred upon the
Mortgagee by this Agreement,being coupled with an interest, shall be irrevocable until
tenninated by a written instrument executed by a duly authorized officer of the Mortgagee.
7-8. Rights and Remedies. The rights,remedies, powers, privileges, and
discretions of the Mortgagee (hereinafter the "Mortgagee's Rights and Remedies"), shall be
cumulative and not exclusive of any rights or remedies which it would otherwise have. No
delays or omissions by the Mortgagee in exercising or enforcing any of the Mortgagee's
Rights and Remedies shall operate as or constitute a waiver thereof. No waiver by the
Mortgagee of any default hereunder or under any other agreement shall operate as a waiver
of any other default hereunder or under any other agreement. No single or partial exercise
of the Mortgagee's Rights and Remedies, and no other agreement or transaction, of
whatever nature entered into between the Mortgagee and the Mortgagor at any time,
whether before, during, or after the date hereof, shall preclude any other or further exercise
of the Mortgagee's Rights and Remedies. No waiver or modification on the Mortgagee's
part on any one occasion shall be deemed a waiver on any subsequent occasion, nor shall it
be deemed a continuing waiver. All of the Mortgagee's Rights and Remedies under this
Agreement or any other agreement or transaction shall be cumulative, and not alternative or
exclusive, and may be exercised by the Mortgagee at such time or times and in such order
of preference as the Mortgagee in its sole discretion may determine.
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BK 15780 PG 133
ARTICLIS 8 -NQ=
All notices, demands and other communications made in respect to this Agreement
shall be made to the following addresses (each of which may be changed upon seven (7)
days written notice to all others) given by hand,by telegram, or by certified or registered
mail, return receipt requested, as follows:
If to the Mortgagor: River Wharf Realty Trust
18 Commercial Street
Salem MA 01970
Attention: Robert G. Solomon,Trustee
With a copy to: Alexander,Femino&Lauranzano
One School Street
Beverly, MA 01915
Attention: Leonard F.Femino,Esquire
If to the Mortgagee: Danvers Savings Bank
One Conant Street
Danvers,MA 01923
Attention: Joseph LaMarca,Vice President
With a copy to: Ardiff& Morse, P.C.
One Corporate Place
55 Ferncroft Road
Danvers,MA 01923
Attention: Cerise Jalelian,Esquire
Any such notice shall be deemed received the earlier of(i)two(2)days after the
mailing of such notice in accordance with the terms and conditions and to the addresses
provided above, or(ii)the date of which the notice is delivered by hand or by telegram to
the address and to the individual provided above.
ARMLE 9 -MISCELLANEOUS
9-1. Morteae . In the event that the Mortgagor is morr-than one person or
entity, all representations,covenants, warranties, defaults, rights, remedies, powers,
privileges, and discretions shall be applicable to the Mortgagors; individually,jointly, and
severally,with the exception of those which are made by their terms applicable to a specific
Mortgagor.
9-2. Exhibits. Any and all Exhibits referred to herein shall be deemed annexed
hereto prior to the execution hereof and specifically incorporated by reference herein.
9-3. Readings. All section headings included within this Mortgage,Security
Agreement, and Assignment shall be for reference only,and shall not limit or restrict, in
any manner whatsoever, the breadth or nature of the provisions included within each
subject section,
9-4. Successors and Assians In the event the ownership of the Collateral, or
any part thereof, becomes vested in a person other than the Mortgagor, the Mortgagee may,
without notice to the Mortgagor,deal with such successor or successors in interest with
15
BK 15780 PG 134
reference to this Agreement and the Liabilities in the same manner as with the Mortgagor,
without in any way waiving the default occasioned by such transfer of ownership or in any
way vitiating or discharging the Mortgagor's liability hereunder or upon the Liabilities, and
no compromise, settlement,release or sale of the Collateral, no forbearance on the part of
the Mortgagee, and no alteration, amendment,cancellation, waiver or modification of any
term or condition or extension of the time for payment of the Liabilities given by the
Mortgagee shall operate to release, discharge,modify,change or affect the original liability
of the Mortgagor herein,either in whole or in part, notice of any such action being waived.
9-5. Set 0 . Except for tax and insurance escrow funds which are provided for
in Section 4-9 herein, all deposits or other sums at any time credited by or due from the
Mortgagee to the Mortgagor, and all cash, securities, instruments, or other property of the
Mortgagor in the possession of the Mortgagee (whether for safekeeping, or otherwise)
shall at all times constitute security for the Liabilities, and may be applied or set off by the
Mortgagee against the Liabilities at any time whether or not the Liabilities are then due or
other collateral is then available to the Mortgagee.,
9-6. AMlication of Proceeds. The proceeds of any collection, sale, or
disposition of the Collateral, or of any other payments received hereunder, shall be applied
toward the Liabilities in such order and manner as the Mortgagee determines in its sole
discretion, any statute,custom, or usage to the contrary notwithstanding. The Mortgagor
shall remain liable to the Mortgagee for any deficiency remaining following such
application.
9-7. Waiver. (a) The Mortgagor WAIVES notice of non-payment, demand,
presentment�protest and all forms of demand and notice,both with respect to the Liabilities
and the Collateral.
(b) The Mortgagor,if entitled to it,WAIVES the right to notice and/or hearing
prior to the exercise of any of the Mortgagee's Rights and Remedies.
9-8. R—eWonsibilfty of Mortgam. The Mortgagee shall not be liable for any loss
sustained by the Mortgagor resulting from any action, ornission, or failure to act by the
Mortgagee with respect to the exercise or enforcement of its rights under this Agreement or
its relationship with the Mortgagor unless such loss is caused by the wilful misconduct and
actual bad faith of the Mortgagee. This Agreement and the Mortgagee's exercise of its
rights hereunder shall not operate to place any responsibility upon the Mortgagee for the
control,care, management,or repair of the Collateral, nor shall it operate to place any
responsibility upon the Mortgagee to perform the obligations of the Mortgagor under any
Lease,License,or Contract,or to make the Mortgagee responsible or liable for any waste
committed on the Mortgaged Premises, any damages or defective condition of the
Mortgaged Premises, or any negligence in the management, upkeep,repair, or control of
the Mortgaged Premises.
9-9. Indemnification. The Mortgagor shall indemnify, defend, and hold the
Mortgagee harmless of and from any claim brought or threatened against the Mortgagee by
the Mortgagor, any guarantor or endorser of the Liabilities, or any other person (as well as
from attorneys' reasonable fees and expenses in connection therewith)on account of the
Collateral or on account of the Mortgagee's relationship with the Mortgagor or any other
guarantor or endorser of the Liabilities (each of which may be defended, compromised,
settled,or pursued by the Mortgagee with counsel of the Mortgagee's selection, but at the
expense of the Mortgagor). The within indemnification shall survive payment of the
Liabilities and/or any termination,release,or discharge executed by the Mortgagee in favor
of the Mortgagor.
16
BK 15780 PG 135
9-10. Binding on Successors This Agreement shall be binding upon the
Mortgagor and the Mortgagor's heirs,executors, administrators,representatives,
successors, and assigns and shall inure to the benefit of the Mortgagee and the Mortgagee's
successors and assigns.
9-11. Severability. Any determination that any provision of this Agreement or any
application thereof is invalid,illegal, or unenforceable in any respect in any instance shall
not affect the validity, legality, and enforceability of such provision in any other instance,
nor the validity,legality, or enforceability of any other provision of this Agreement.
9-12. Modification. (a)This Agreement and all other instruments executed in
connection herewith incorporate A discussions and negotiations between the Mortgagor
and the Mortgagee concerning the matters included herein and in such other instruments.
No such discussions or negotiations shall limit, modify, or otherwise affect the provisions
hereof. No modification, amendment,or waiver of any provision of this Agreement, or of
any provisions of any other agreement between the Mortgagor and the Mortgagee, shall be
effective unless executed in writing by the party to be charged with such modification,
amendment,or waiver, and if such party be the Mortgagee,then by a duly authorized
officer thereof.
(b) The Mortgagor may take any action herein prohibited, or omit to
perform any act required to be performed by it, if the Mortgagor shall obtain the prior
written consent by a duly authorized officer of the Mortgagee for each such action, or
ornission to act.
9-13. Payment of Costs. The Mortgagor shall pay-on demand all Costs of
Collection and a expenses of the Mortgagee in connection with the preparation, execution,
and delivery of this Agreement and of any other documents and agreements between the
Mortgagor and the Mortgagee, including, without limitation, attorneys' reasonable fees and
disbursements, and all expenses which the Mortgagee may hereafter incur in connection
with the collection of the Liabilities or the protection or enforcement of any of the
Mortgagee's rights against the Mortgagor, any Collateral, and any guarantor or endorser of
the Liabilities. The Mortgagor authorizes the Mortgagee to pay all such expenses and to
charge the same to any account of the Mortgagor with the Mortgagee.
9-14. Additional Advances. All amounts which the Mortgagee may advance under
any Sections of this Agreement shall be repayable to the Mortgagee with interest at the
highest rate charged relative to any of the Liabilities, on demand, shall be a Liability, and
may be charged by the Mortgagee to any deposit account which the Mortgagor maintains
with the Mortgagee.
9-15. Governing Law. This Agreement and all rights and obligations hereunder,
including matters of construction, validity and performance,shall be governed by the laws
of the Commonwealth of Massachusetts. The Mortgagor submits itself to the jurisdiction
of the courts of the Commonwealth of Massachusetts for all purposes relative to the
Mortgagor's relationship with the Mortgagee.
9-16. Tem-fination. This Agreement shall remain in full force and effect until
specifically terminated in writing by a duly authorized officer of the Mortgagee. Such
termination by the Mortgagee may be conditioned upon such further indemnifications
provided to the Mortgagee by or on behalf of the Mortgagor as the Mortgagee may request.
No termination pursuant to this Section shall affect the indemnification provided for in this
Article.
17
BK 15780 PG 136
Exhibit A
The land in said Salem with the buildings thereon,if any,bounded and described as
follows:
Parcel No. I
Beginning at a point on the northerly side of Commercial Street at the
SOUTHWESTERLY comer of land formerly of George F.Lord thence running in a
Northerly direction along the Westerly property line of the property now or formerly of
George F. Lord, a distance of eighty-nine and 85/100(89.85) feet to a point; thence turning
and running in a
NORTHWESTERLY direction a distance of fifty and 051100 (50.05)feet along
land now or formerly of H. P. Hood& Sons, Inc; thence turning and running in a
SOUTHERLY direction along land now or formerly of the City of Salem, a distance of
ninety-two and 57/100(92.57)feet; thence turning and running in an EASTERLY direction
along the Northerly street line of Commercial Street a distance of fifty (50)feet to the point
of beginning.
Containing 4560 square feet of land as shown on a plan filed with Essex South
District Deeds entitled"Land of City of Salem,Rear of North Street, Salem,Mass. May
1955 Revised October 1955 -Edgar W. Nickerson, City Engineer in Book 4809, Page
500.
Parcel No. 2
The land in said Salem with the buildings thereon, if any, situated on the North side
of the North River Canal and bounded and described as follows:
Beginning at the SOUTHEASTERLY comer of said lot on the Northwesterly side
of a proposed road the same point being three hundred eighty-eight and 44/100(388.44)
feet Southwesterly from North Street;thence running
SOUTHWESTERLY by the Northwesterly street line of said proposed road
seventy (70)feet to other land now or formerly of the City of Salem; thence turning and
running NORTHWESTERLY by said other land now or formerly of the City of Salem,
eighty nine and 85/100(89.85) feet to land now or formerly of H. P. Hood & Sons, Inc.;
thence turning and running EASTERLY by said land now or formerly of H. P. Hood&
Sons, Inc. seventy and 12/100 feet to land now or formerly of Cook; thence turning and
running SOUTHEASTERLY by said land now or formerly of Cook eighty-six and 6/100
(86.06) feet to the point begun at.
Containing 6156 square feet of land and being shown on a plan entitled"Land of
the City of Salem, rear of North Street May 1955,Revised October 1955,Edgar W.
Nickerson, City Engineer and hereiribefore referred to.
Meaning and intending to convey with Mortgage covenants the premises conveyed
to the Mortgagor herein by deed of Tliomas A. Sullivan dated of even date and recorded
herewith.
19
BK 15780 PG 137
9-17. S=ific Performance, The failure by the Mortgagor to perform all and
singular the Mortgagor's obligations hereunder will result in irreparable harm to the
Mortgagee for which the Mortgagee shall have no adequate remedy at law. Consequently,
the Mortgagor agrees that such obligations are and shall be specifically enforceable by the
Mortgagee.
9-18. Intent. It is intended that:
(a) this Agreement take effect as a sealed instrument;
(b) with the exception of the Mortgagee's internal costs and expenses, all
costs and expenses incurred by the Mortgagee in connection with the Mortgagee's
relationship(s)with the Mortgagor shall be home by the Mortgagor; and
(c) the interests created by this Agreement secure all of the Liabilities of the
Mortgagor to the Mortgagee,whether now existing or hereafter arising.
9-19. Receipt of Cppy. The Mortgagor acknowledges having received a copy of
this Agreement.
9-20. Reference. This instrument may be referred to herein as the "Mortgage,"
"Mortgage, Security Agreement, and Assignment," or "Agreement," but no such reference
shall limit the effectiveness of this instrument for any Mortgagee hereunder.
(the "Mortgagor")
iRobert G.�Iomon Trust�
River Wharf Realty Trust
dated of even date herewith as aforesaid
COMMONWEALTH OF MASSACHUSETTS
Essex, ss. June 30, 1999
Then personally appeared the above-named Robert G. Solomon, Trustee as
aforesaid, and acknowledged the foregoing to be his free act and deed, before me.
Rotary Publi"
My Comrnissi�aoExpires:
Cerise Jalellan, NotarY Public
Nly Commission Expires, December 2,2005
18
BK 15780 PG 138
Exhibit A
The land in said Salem with the buildings thereon, if any, bounded and described as
follows:
Parcel No. I
Beginning at a point on the northerly side of Commercial Street at the
SOUTHWESTERLY comer of land formerly of George F.Lord thence running in a
Northerly direction along the Westerly property line of the property now or formerly of
George F.Lord,a distance of eighty-nine and 85/100 (89.85)feet to a point; thence turning
and running in a
NORTHWESTERLY direction a distance of fifty and 05/100(50.05)feet along
land now or formerly of H. P. Hood& Sons,Inc; thence turning and running in a
SOUTHERLY direction along land now or formerly of the City of Salem, a distance of
ninety-two and 57/100(92.57)feet;thence turning and running in an EASTERLY direction
along the Northerly street line of Commercial Street a distance of fifty (50)feet to the point
of beginning.
Containing 4560 square feet of land as shown on a plan filed with Essex South
District Deeds entitled "Land of City of Salem,Rear of North Street, Salem, Mass. May
1955 Revised October 1955 -Edgar W. Nickerson, City Engineer"in Book 4809, Page
500.
Parcel No. 2
The land in said Salem with the buildings therron,if any, situated on the North side
of the North River Canal and bounded and described as follows:
Beginning at the SOUTHEASTERLY comer of said lot on the Northwesterly side
of a proposed road the same point being three hundred eighty-eight and 44/100(388.44)
feet Southwesterly from North Street; thence running
SOUTHWESTERLY by the Northwesterly street line of said proposed road
seventy (70) feet to other land now or formerly of the City of Salem;thence turning and
running NORTHWESTERLY by said other land now or formerly of the City of Salem,
eighty nine and 85/100 (89.85) feet to land now or fon-nerly of H. P. Hood & Sons, Inc.;
thence turning and running EASTERLY by said land now or formerly of H. P. Hood &
Sons,Inc. seventy and 12/100 feet to land now or formerly of Cook; thence turning and
running SOUTHEASTERLY by said land now or formerly of Cook eighty-six and 6/100
(86.06)feet to the point begun at.
Containing 6156 square feet of land and being shown on a plan entitled "Land of
the City of Salem, rear of North Street May 1955,Revised October 1955, Edgar W.
Nickerson, City Engineer and hereinbefore referred to.
Meaning and intending to convey with Mortgage covenants the premises conveyed
to the Mortgagor herein by deed of Thomas A. Sullivan dated of even date and recorded
herewith.
19
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08/12/99 02:34 Inst n6
RK15873 PG 351
MORTGAG
Robert G. Solomon, Trustee of River Wharf Realty Trust u/d/t dated June 30, 1999
(Recorded with Essex South District Registry of Deeds in Book 15780, Page 107), hereinafter
referred to as the "Mortgagor," for consideration paid,hereby grants to the City of Salem, a public
body, politic and corporate, duly organized and existing under the laws of the Commonwealth of
Massachusetts pursuant to Massachusetts General Laws Chapter 12 1 B, and having a usual place of
business at 93 Washington Street, Salem,Essex County, Massachusetts, hereinafter referred to as
the "Mortgagee," with MORTGAGE COVENANTS, to secure the payment of all obligations
contained in a certain note of even date, in the sum of Fifty Thousand and 00/100 ($50,000.00)
dollars with interest thereon,as provided in said note, to secure the payment of or performance of
all other debts, covenants and agreements of or by the Mortgagor or the Borrower to or for the
benefit of the Mortgagee now existing or hereafter accruing while this mortgage is still undischarged
of record: the parcel of real estate located at 18 Commercial Street, Salem, Essex County,
Massachusetts, as described in Exhibit "A" annexed hereto, which is incorporated herein by this
reference,together with any and all improvements now or hereafter situated thereon.
Also, insofar as the same are,or can by agreement of the parties be made, a part of the realty,
al I of the following articles now or hereafter on the attached described premises or used therewith:
Portable or sectional buil*dings, bathroom, plumbing, heating, lighting, refrigeration, ice making,
ventilation and air conditioning apparatus and equipment; garbage incinerators and receptacles;
elevators and elevator machinery; boilers; stoves;tanks;motors; sprinkler,smoke and heat detector
and fire extinguishing systems; gas and electric systems; door bell and alarm systems, window
shades; screens, awnings, screen doors; storm and other detachable windows and doors; mantels;
built-in cases, counters, closets, chest of drawers and mirrors; trees, hardy shrubs and perennial
flowers; and other fixtures whether or not included in the foregoing enumeration.
Ile Mortgagor covenants to pay when due all taxes,charges, assessments and ground rents,
if any, and water rates to whomsoever laid or assessed,whether on the mortgaged premises or on any
interest therein or on the debt or obligation secured hereby; to pay to the holder, on demand, the
same percentage on the debt secured hereby as the holder may, from time to time, be required to pay
41 W
>1 " �4 0as a state tax on so much of the holdees deposits as is invested in loans secured by mo g es of
Q) 0 rt ag
0 taxable real estate; to keep the buildings now or hereafter on the mortgaged premises insured against
ri
rh CIO)
V � fire and such other casualties and contingencies as the holder may from time to time require, and,
-M is
r En subject to the rights of the holder of the first mortgage, all such insurance to be deposited with the
C
fId4 �16 101 first payable in case of loss to the holder and to be written by such companies, through such
2: A. 0 (n agencies,on such terms,in such form and for such periods and amounts as the holder shall from time
6 to time approve,hereby granting to the holder in the event of foreclosure, full authority as attorney
V irrevocable of the Mortgagor to cancel such insurance and retain the return premi
r ums thereof or to
$4 transfer such insurance to any person or persons cl
aiming title to the mortgaged premises or any part
thereof by virtue of foreclosure proceedings; to keep the mortgaged premises in such repair, order
and condition as the same now are or may hereafter be put,reasonable wear and tear and damage by
fire only excepted; not to permit or suffer any strip or waste of the mortgaged premises, nor any
violation of any law or ordinance affecting the same or the use thereof, not to cancel,change, renew
or otherwise deal with any existing or future lease without first obtaining, in such case, the written
1*—R.G.S. Page I of 5
71 -7 3
ERK I FE; J 1 .3
consent of the Mortgagee, nor provide for in any lease, nor accept from any lessee or tenant rent
which shall be payable or paid for a period of more than one month in advance; at any time upon
notice from the holder to submit for examination all leases of the mortgaged premises or any part
thereof then in force and on demand to assign to the holder any or all of such leases(hereby granting
to the holder full authority as attorney irrevocable of the Mortgagor to make, execute, acknowledge
and deliver such assignments), to empower the holder to assign any or all such leases to any
subsequent holder hereof or to any person or persons claiming title to the mortgaged premises or any
part hereof by virtue of foreclosure proceedings and to provide that the owner of the equity of
redemption of the mortgaged premises may have and retain the rents and profits thereof until a
default occurs in any condition of this mortgage, but that after any default occurs, such rents and
profits received by the holder prior to foreclosure shall be applied to the extinguishment of the
mortgage debt, and that after foreclosure, no assignee of any lease so assigned shall be liable to
account to the Mortgagor or its successors in title, either for rents or profits thereafter accruing or
otherwise; and to pay interest at the rate and time herein provided upon all sums from time to time
secured hereby.
The Mortgagor further covenants as follows: if there shall be a default of any installment of
principal or interest on the note secured by this mortgage or of tax escrow money when due, and
such default shall continue for thirty(30) days or in case of any default in any other condition of this
mortgage, the entire mortgage debt shall become immediately due at the option of the holder; in case
any default in any condition of this mortgage shall occur, the holder, to cure such default, may apply
any deposits or any sums credited by or due from the holder to the Mortgagor without first enforcing
any other rights of the holder against the Mortgagor, any endorser or guarantor of the mortgage note,
or the mortgaged premises; no sale of the premises hereby mortgaged, no forbearance on the part of
the holder, and no extension whether oral or in writing of the time for the payment of the whole or
any part of the debt secured or any other indulgence given by the holder to any persons other than
the Mortgagor, shall operate to release or in any manner affect the original liability of the Mortgagor,
notice of any such extensions or indulgences being waived; and in case redemption is had by the
Mortgagor after foreclosure proceedings have begun the holder shah be entitled to collect all costs,
charges and expenses incurred up to the time of redemption.
The Mortgagor hereby authorizes the holder to pay all taxes, assessments and ground rents,
if any,and water rates, with interest, costs and charges accrued thereon, which may at any time be
a lien upon the mortgaged premises or any part thereof, to pay the premiums for any insurance
required hereunder; to incur reasonable expenses at all times in protecting its security; to pay any
balance due under any conditional agreement or sale on any articles and fixtures included as a part
of the mortgaged premises; and to add all surns so paid to the principal sum secured hereby; and the
holder may apply to any of these purposes any sums paid hereunder by the Mortgagor as interest or
otherwise.
For purposes of this agreement, the term "Liabilities" as used herein shall include without
limitation(unless as specifically excepted below)any and all liabilities, debts and obligations of the
Mortgagor to the Mortgagee, including those contained in the promissory note(s) hereinabove
referred to. including without limitations(unless as specifically excepted below)all loans,advances,
indebtedness, notes, obligations and amounts, liquidated or unliquidated, owing by the Mortgagor
TO R.G.S. Page 2 of 5
BK 158-113 PG 357
to the Mortgagee at any time, including any notes or other obligations of the Mortgagor assigned to
or held by the Mortgagee, of any kind,nature or description now existing or arising in the future, and
whether secured or unsecured, direct or indirect, absolute or contingent, or by reason of any cause
of action which the Mortgagor to the Mortgagee from time to time,and all costs or expenses incurred
or paid by the Mortgagee to enforce this or any other agreement between the Mortgagor and the
Mortgagee, including without limitation (unless as specifically excepted below) all of the
Mortgagee's executive, administrative and staff costs and expenses above and beyond those which
would normally be incurred in the administration of a financial transaction similar to that between
the Mortgagor and Mortgagee. As used herein, the term "indirect" includes without limitation
(unless as specifically excepted below)all obligations and liabilities which the Mortgagee may incur
or become liable for on account of or as a result of any financial transactions between the Mortgagor
and the Mortgagee. As used herein, the term "indebtedness" includes without limitation(unless as
specifically excepted below) any and all loans, advances and other credits made at any time by the
Mortgagee to or on account of the Mortgagor and includes all liabilities and obligations of a financial
nature and all costs,costs of collection, attorney's fees and any other amounts paid by the Mortgagee
on behalf of the Mortgagor or on account of the Mortgagor's transactions with the Mortgagee.
In the event that the ownership of the mortgaged premises, or any part thereof, becomes
vested in anyone other than the Mortgagor named herein, the whole sum. of principal and interest
then remaining unpaid shall become immediately due without notice to the Mortgagor named herein,
deal with such successor or successors in interest with reference to the mortgage and the debt hereby
secured, and in the same manner as with the Mortgagor named herein, without in any way vitiating
or discharging any Mortgagoes liability hereunder or upon the debt secured hereby.
The Mortgagee (or its authorized agents(s) ) may make or cause to be made reasonable
entries upon and inspections of the mortgaged premises,provided that the Mortgagee shall give the
Mortgagor notice(written or oral) prior to any such inspection specifying reasonable cause therefor
related to the Mortgagee's interest in the mortgaged premises.
All of the within covenants and agreements of the Mortgagor are made by the Mortgagor
named herein for themselves, their successors and assigns.
This Mortgage is upon the STATUTORY CONDITION and upon further condition that all
covenants on the part of the Mortgagor herein contained shall be kept fully performed, for any
breach of which conditions the holder shall have the STATUTORY POWER OF SALE.
Notwithstanding anything to the contrary contained herein, no person comprising the
Mortgagor who is not a maker, co-maker, guarantor or endorser of the promissory note referred to
above shall be personally liable for any amount owed solely under this mortgage.
The premises may,however, be subjected to a condominium regime,to which the Mortgagee
shall subordinate. The Mortgagee shall permit unit sales and will issue partial releases of this
mortgage without payment, except as provided under the terms of the Note.
This Mortgage is subject to prior Mortgages of record.
70—R.G.S. Page 3 of 5
BK Pr
I �J -3
Mortgagor covenants and agrees that any default under the terms of said prior mortgages or
notes secured thereby shall be a default under this mortgage, and by acceptance thereof agrees that
said prior mortgage shall not be deemed an encumbrance with respect to Mortgage covenants.
------------------------------------------------------------------
Principal Sum of Loan: $50,000.00
Rate of Interest: 5%
Period of Loan: 7 years
Periodic Due Dates: l2th day of every month, commencing September 12, 1999
------------------------------------------------------------------
IN WITNESS WHEREOF,the said Robert G. Solomon,Trustee, hereunto sets his hand and
seal this l2th day of August, 1999.
Witness Robert G. Solomon
Trustee, River Wharf Realty Trust u/d/t
June 30, 1999 as aforesaid
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. August 12, 1999
Then personally appeared the above-named Robert G. Solomon, in his capacity as Trustee
of River Wharf Realty Trust and acknowledged the foregoing to be his free act and deed, before me,
61444t�4 9,k)4�—
Notary Public
My commission expires:
UNDA D.WHrrE
No"Pubic
*/CM==wExpmjknjX=e
C:\MC\I.OAN\Bioengincer\Bioengincermort.dDc
Page 4 of 5
BK 15873 PG %355
EXHIBIT A
The land, together with the buildings thereon, if any, situated at 18 Commercial Street in Salem,
Essex County, Commonwealth of Massachusetts, bounded and described as follows:
Parcel No. I
Beginning at a point on the northerly side of Commercial Street at the SOUTHWESTERLY comer
of land formerly of George F. Lord, thence running in a Northerly direction along the Westerly
property line of the property now or formerly of George F. Lord, a distance of eighty-nine and
85/100(89.85) feet to a point;thence turning and numing in a
NORTHWESTERLY direction a distance of fifty and 051100 (50.05) feet along land now or
formerly of H.P. Hood& Sons, Inc.; thence turning and running in a SOUTHERLY direction along
land now or formerly of the City of Salem,a distance of ninety-two and 57/100(92.57)feet; thence
turning and running in an EASTERLY direction along the Northerly street line of Commercial
Street, a distance of fifty (50) feet to the point of beginning.
Containing 4,560 square feet of land,as shown on a plan filed with the Essex South District Registry
of Deeds entitled"Land of City of Salem, Rear of North Street, Salem, Mass., May 1955, Revised
October 1955 —Edgar W. Nickerson, City Engineer" in Book 4809, Page 500.
Parcel No. 2
The land in said Salem with the buildings thereon, if any, situated on the North side of the North
River Canal and bounded and described as follows:
Beginning at the SOUTHEASTERLY comer of said lot on the Northwesterly side of a proposed
road the same point being three hundred and eighty-eight and 44/100 (388.44) feet Southwesterly
from North Street; thence running
SOUTHWESTERLY by the Northwesterly street line of said proposed road seventy (70) feet to
other land now or formerly of the City of Salem; thence turning and running NORTHWESTERLY
by said other land now or formerly of the City of Salem,eighty-nine and 85/100(89.85) feet to land
now or formerly of H.P. Hood& Sons, Inc.; thence turning and running EASTERLY by said land
now or formerly of H.P. Hood& Sons, Inc., seventy and 12/100(70.12) feet to land now or formerly
of Cook; thence turning and running SOUTHEASTERLY by said land now or formerly of Cook,
eighty-six and 6/100(86.06) feet to the point begun at.
Containing 6,156 square feet of land and being shown on a plan entitled"Land of the City of Salem,
rear of North Street May 1955, Revised October 1955, Edgar W. Nickerson, City Engineer and
hereinbefore referred to.
'S-
s e )eeJ a ,ftt a4-
Page 5 of 5
ALLONGE To NOTE
For purposes of further endorsement of the following described NOTE, this allonge is
affixed and becomes a permanent part of said NOTE:
NOTE DATE: December 15, 2006
ORIGINAL LOAN AMOUNT: $200,925.00
PRESENT PRINCIPAL BALANCE: $121,624.84 before additional advance
hereunder
BORROWERNAME: River Wharf Realty Trust u/d/t dated June 30, 1999
MODIFICATIONS TO NOTE:
I The principal amount outstanding as of this date is, including
additional amounts advanced by the Lender on this date, is
$ 197,549.84;
2. The Interest Rate is unchanged and remains $ 4.00% per
annum-,
3. The regular monthly installment payments of$ 2,746.40 in
principal and interest due under the original terms of the Note
shall continue to be due and payable until Dec. 16, 2016;
further, for the first eleven(11) months hereafter, an additional
$ 253.08 in interest only shall be due and payable on the newly
advanced funds, for a total monthly payment of$ 2,999.48 for
the next eleven months, running from February 15, 2013
through December 15, 2013;
4. Beginning on January 15, 2014 principal amortized on a 4-year
basis, plus interest shall be due and payable on the newly
advanced funds, such payment being $ 1,747,96, which,
together with the regular$ 2,746.40 payment, shall require
total payments of$ 4,494.36 on the total principal balance. A
balloon payment of$ 18,848.25 in unpaid principal shall be
due and payable on Dec. 16, 2016.
5. The term of the loan is unchanged, and the full amount of all
unpaid principal, interest and late fees, if any, shall be due and
payable, including the balloon payment on December 16, 2016.
All other ten-ns and conditions of the Note remain unchanged.
Executed this 15'h day of January, 2013.
BORROWER:
RfVER VHARF REALTY TRUST
By:
Wendi Goldsmith. Trustee
Acknowledgement and Agreement by Lender
Lender:
City of Salem, Massachusetts
4G"Dun4canire&cto.rj"
SECOND LOAN MODIFICATION AGREEMENT
DATED: JANUARY 15, 2013
This Second Loan Modification Agreement ("Agreement") is made this 15 T" day of January,
2013 between River Wharf Realty Trust ("Borrower")The Bioengineering Group, Inc.
("Borrower's Affiliate/Loan Guarantor"), the City of Salem having a usual place of business at
120 Washington Stre�t, Salem, Essex County, Massachusetts (hereinafter the "Lender") and
Wendi Goldsmith of Manchester, Massachusetts individually ("Individual Guarantor"),
collectively hereinafter referred to as the "Parties". This Agreement amends and supplements a
Loan Agreement, a the Borrower's Note for$ 200,925.00, a Mortgage and Security Agreement,
the Affiliate's Guaranty and Wendi Goldsmith's Personal Guaranty, all entered into and
executed by the Parties and dated December 15, 2009, as subsequently amended by a Loan
Modification Agreement dated April 12, 2010. These documents, collectively are referred to
hereinafter as the "Loan and Security Documents."
It is agreed by the Parties that the principal balance outstanding as of the date of this Agreement,
and including the additional funds advanced hereunder is $ 197,549.84, and that all of the Loan
and Security Documents remain in full force and effect as of this date, and will so remain after
the execution of this Agreement.
At the collective request of the Borrower, the Borrower's Affiliate, the Loan Guarantor and the
Personal Guarantor that the Lender(City of Salem) advance and loan to the Borrower an
additional Seventy-Five Thousand Nine Hundred and Twenty-Five Dollars ($ 75,925.00) for
purposes allowed under the Loan Agreement and Loan Modification Agreement, and in
consideration of the agreement of the Lender to lend and advance such additional funds, the
Parties further agree as follows:
1. The Lender shall advance an additional Seventy-Five Thousand Nine Hundred and
Twenty-Five Dollars ($ 75,925.00) to the Borrower under the Note, as amended by the
Allonge to Promissory Note dated January 15, 2013, executed by the Borrower and
Lender, and physically attached to said Note;
2. The Parties hereby agree this advance of additional loan funds to the Borrower is, and
shall continue to be, secured by the existing Loan and Security Documents as referenced
above, all of which remain in full force and effect;
3. The Parties all represent that they are authorized to execute this Agreement, any and all
such documents as the Lender may require to effectuate this additional loan; and
4. Nothing in this Second Loan Modification Agreement shall be understood or construed to
be a satisfaction or release, in whole or in part, of the original obligations under the Loan
and Security Documents.
Signed and sealed this day of January, 2013.
R ve Trust, by
i�a Ity
Wendi Goldsmith, Trustee
The Bioengineering Group, Inc., by
Wendi Goldsmith, President
& J�
Wendi Goldsmith, Individually
City of Salem
Planning and Community Development
G. Duncan,/Director
CITY OF SALEM
DEPAR.TMENT OF PLANNING AND
COMMUNITYDEVELOPMENT
STANLEY J.USOVICZ,JR.
MAYOR 120 WASHINGTON STRLET*SALEM,MASSACHUSETTS 01970
JOSEPH P.WALSH,JR. TEL:978-745-9595* FAX:978-740-0404
DIRECTOR
April 9, 2004
Ms. Kathy McCarthy
Salem Five Bank
210 Essex Street
Salem,MA 01970
RE: River Wharf Realty Trust—City of Salem Loan
Dear Ms.McCarthy:
Enclosed you will find the executed note and amortization table for the City of Salem Economic
Development Loan to the River Wharf Realty Trust.
Please set up the loan using the following terms:
Original Loan Amount: $135,925.00
Interest rate: 4.00%
Term: 10 years (120 months)
Payments: Monthly payments of$1,376.17
Start Date: May 15, 2004 (payments monthly)
Maturity Date: May 1, 2014
The borrower information is as follows:
Wendi Goldsmith
River Wharf Realty Trust
18 Commercial Street
Salem,MA 01970
(978)740-0096 x507
Tax ID#04-6895020
Thank you for your assistance. Please contact me at 978/745-9595 x311 if you have further
questions or require more information.
Sincerelyyours,
Hartford4
E ornic Development Planner
Enclosures
CITY OF SALEM
Z
DEPAR-TMFNT OF PLANNING AND
COMMUNITY DEVELOPMENT
STANLEY J.USOVICZ,JR.
MAYOR 120 WASHINGTON STREET 0 SALEM,MASSACHUSETTS 01970
JOSEPH P.WALSH,JR. TEL:978-745-9595# FAX:978-740-0404
DiRECTOR
February 3, 2004
Ms. Wendi Goldsmith, Trustee
River Wharf Realty Trust
18 Commercial Street
Salem, MA 01970
Dear Ms. Goldsmith:
Thank you for your application to the Salem Business Loan Program. I am pleased to inform you
that the City of Salem has approved your request for a loan in the amount of$50,000,conditioned
upon receipt of your anticipated first mortgage financing of $520,000, to provide capital for
refinancing of debt currently held by River Wharf Realty Trust and The Bioengineering Group,
Inc.
The terms and conditions of the loan are as follows:
Borrower: River Wharf Realty Trust
Loan amount: $50,770 (includes estimated closing costs)
Interest rate: 4.0%
Term: 10 years (120 months)
Payments: Monthly principal and interest payments of$514.02 commencing on
March 1, 2004 through March 1, 2014.
Collateral: A second mortgage on property at 18 Commercial Street subject to first
mortgage financing of$520,000.
Use of proceeds: Loan funds may be used for refinancing and debt repayment for the River
Wharf Realty Trust and The Bioengineering Group.
Guarantees: Wendi Goldsmith will also personally guarantee the loan.
Conditions: 1. The Borrower must obtain and close on first mortgage financing prior
to closing on the loan from the City of Salem.
2. The Borrower will only use the loan for refinancing current debt held
by River Wharf Realty Trust and The Bioengineering Group, Inc.
Page 1 of 4
3. Funds will be allocated in a payment of$50,000 at the loan closing. The
Borrower must submit invoices for use of these funds within 3 months
of closing on the loan, unless extended by the City.
4. The Bioengineering Group,Inc. must pay in full the current loan with
the City of Salem.
5. The Bioengineering Group must create 5 full-time equivalent jobs
within two years of closing on the loan,with 2 being made available to
low-to moderate-income individuals.
Financial The Borrower and Guarantor will provide, annually, updated personal,
Statements/Annual business financial statements and Federal Income tax returns. The
Reports: Borrower also agrees to submit reports on the number of people they
employ, the number of jobs created/retained, the household income of
those employees,and the rate of pay. Failure to submit any of the financial
statements and reports required on a timely basis will constitute default.
Prepayment: The loan can be partially or wholly prepaid at anytime without a penalty.
Late Charge: The city will be entitled to collect late charges not to exceed five percent
(5%) of the total of any payment not received by the city within fifteen
days from the due date on the loan.
Acceptance: This commitment must be accepted in writing by the Borrower and must
be delivered to the city on or before February 27,2004. The acceptance of
this commitment will constitute an agreement by the Borrower to perform
and satisfy all the terms and conditions of this commitment and enter into
the loan described above with the City of Salem.
Compliance with In the event that the Borrower fails to comply with any of the terms and
Commitment: conditions contained in this letter or fail to provide the city with any
information requested herein in form or substance satisfactory to the city
and the city's counsel, the city shall have the right to withdraw the loan
commitment.
City Attorney(s): Tinti, Quinn, Grover & Frey, P.C.
222 Essex Street
Salem, MA 01970
978/745-8065
Costs: Whether or not the transaction herein contemplated is completed; the
Borrower will pay all costs of recording fees and fees of counsel and all
other or any costs by the City, as deemed appropriate.
Expiration of This commitment and all the city obligations will expire unless all the
Commitment: conditions, terms and requirements are satisfied on or before March 30,
2004 or the city chooses to extend such expiration date in writing.
The commitment letter shall survive and shall not merge into the loan
documents upon their execution and delivery and shall constitute an
Page 2 of 4
independent obligation of the Borrower enforceable by the city after the
closing date of this transaction. In the event of any material inconsistency
or conflict between this commitment letter and the loan documents, the
loan documents shall prevail.
Subject to: 1. Receipt of a commitment letter from the bank holding the first
mortgage.
2. Receipt of property appraisal for a value acceptable to the city,prior to
closing.
Loan Documents: The Borrower agrees to execute any and all loan documents deemed
necessary by the city's attorney to properly document this loan.
Other Provisions: The borrower will allow the City of Salem to publicize their financial
assistance of the project. Forms of publicity will include all press coverage,
ribbon cutting, display of sign, and all other forms of marketing deemed
appropriate by the City of Salem.
Please contact Tania Hartford,Economic Development Planner for the Department of Planning
and Community Development,978/745-9595 x3l 1,if you have any questions regarding this letter
and/or the terms of this loan. We are preparing the loan documents and will be in contact with
you on a closing date.
Sincerely,
4jose h P. Walsh,Jr."
i ctor
The Borrowers acknowledge that they are represented by competent legal counsel and understand
the terms and conditions of this commitment letter.
I agree and accept the above terms and conditions on this:
/0 day of 2004.
River Wharf Realty Trust
18 C I St !et
S
BY:-
BY:
Robert Solomon, Trustee
Page 3 of 4
Interested Party:
The Bioengineering Group, Inc.
18 Commercial Street
Salem, MA 01970
BY:
Wendi Goldsmith, President
Guarantor:
Wendi Goldsmith
7 Mall Street
Salem, A 01970
BY: A
�Wenai 6oldsmith,Offiividually��
Page 4 of 4
LOAN MANAGEMENT POLICY
Economic Development & Housing Rehabilitation Loan Programs
Economic Developmen
ED loans are usually secured loans, with collateral being the business real estate and/or
lien on equipment. If there is no business real estate, it may be secured with the owner's
personal real estate. If real estate is involved, there is a mortgage filed with the Registry
of Deeds. In addition, the Borrower provides a personal guaranty and there is also a UCC
filing. Loans are typically at 75-90% of prime and for a term of five years. Loans are
serviced through either Salem Five (CDBG loans) or Eastern Bank (UDAG loans). Note:
Fees for loan servicing are based on payments made. There are no service fees charged
on loans that do not make payments.
A. Review
1. The lending institutions provide monthly reports which are forwarded to the
DPCD bookkeeper, where payment status is entered into loan tracking
spreadsheets. If there is a delinquent payment, she notifies the Economic
Development Manager.
2. Each quarter, the DPCD bookkeeper forwards a Fund 2432 Revolving Loan
Program Quarterly Report, which provides a list of new loans, loan balances
(with an attached spreadsheets and bank statements) and a list of write-
offs/pay-offs to the Assistant Finance Director, so that the Finance Department
can reconcile the General Ledger. This process has been in effect since Fall,
2005.
B. Delinquent Loans
I. When the loan is delinquent, the bank sends the Borrower a notice. Salem
Five sends their reminder notice when a loan is 15 days late at approximately
the 12"' day of each month. Eastern sends a notice at 15 days and at 30 days
late.
2. Upon notification that the loan is delinquent, the ED Manager will send a
letter to the business owner and follow tip with a telephone call. The
telephone call will result in a plan of action:
a. Payment is imminent: Follow tip telephone conversation with letter
confirming when payment will be made. Copy bank.
b. Payment is not imminent: Set up meeting with business to review
situation.
i. Consider restructuring (e.g. temporary suspension, adjustment
of terms)
ii. Consider additional technical assistance (e.g. Small Business
Development Center, SCORE)
3. If the ED Manager succeeds in contacting the Borrower and working out a
feasible resolution, the ED Manager may recommend a loan modification to
the Director of Planning & Community Development. If approved, a Loan
Modification Agreement will be executed with the Borrower. The Treasurer's
Office is notified of the restructuring.
C. Defaults
1. The City Solicitor will be notified and asked to send a letter from their office
explaining in applicable legal terms what the options are that the City is
prepared to utilize in order to compel the borrower to get current.
2. If the above steps are unsuccessful, the loan information will be forwarded to
Tinti, Quinn, Grover& Frey Attorneys to determine if the loan is collectible
and determine whether to pursue collection via guarantees, etc. Note: Service
agreement was executed in June, 2003 with Tinti, Quinn, Grover& Frey
Attorneys.
D. Uncollectable Loans
I. If the loan is uncollectable, the Director of Planning & Community
Development will send a letter to the Finance Director that the loan is to be
written off.
2. The Finance Department is also notified through the quarterly report referenced
in I.A.2.
3. The Finance Department will write off loan in MUNIS and sign and date write-
off notification and send back to DPCD. Upon receipt of the signed write-off
from Finance, DPCD will send a copy to the lending institution, informing
them that the loan is to be written off.
4. ED Manager files a Discharge at the Registry of Deeds, if applicable.
2
GUARANTY
To induce the City of Salem, hereinafter referred to as the"LENDER", to extend credit
and other financial consideration and accommodation to River Wharf Realty Trust
hereinafter, referred to as the"BORROWEW', the undersigned, unconditionally
guarantees the prompt and complete payment and performance of all liabilities and
obligations of the Two Hundred Thousand Nine Hundred Twenty Five Dollars and
00/100 ($200,925.00) loan to the BORROWER evidenced by the Note in that amount
dated December /,5-, 2009.
The term"liabilities and obligations," shall be deemed to include any and all obligations
on the part of the BORROWER or any one or more of them to pay money and to perform
or to refrain from performing acts or things arising under or by virtue of any undertaking
entered into simultaneously with or subsequent to the execution of this guaranty and shall
be deemed further, to include all obligations of the BORROWER to the LENDER now
existing or hereafter arising, whether direct or indirect, absolute or contingent, due or to
become due, regardless of how they may rise or by what instrument or instruments they
may be evidenced or whether evidenced by any instrument and shall include the costs of
collection incurred by the Bank, including reasonable attorney's fees, in enforcing any
particular liability or obligation(including the costs of foreclosing on any collateral given
to secure any such liability or obligation) and in enforcing this guaranty.
This guaranty is a continuing guaranty and shall remain in full force and effect unless and
until terminated by the undersigned, or any one or more of then-4 in respect to his
individual liability, by giving notice of his intention to do so, such notice to be mailed,
postage prepaid, by registered mail, return receipt requested, to the LENDER at the City
of Salem, Department of Planning and Community Development, 120 Washington Street,
Salern, Massachusetts 0 1970, or to such other address designated by LENDER.
Notwithstanding the giving of any such notice of termination or termination, this
guaranty shall remain effective with respect to any liability or obligation incurred or
contracted by the BORROWER prior to its acceptance in writing by the LENDER.
The liability of each of the undersigned shall be absolute and unconditional without
regard to the liability or obligation, presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance, default or
enforcement of this guaranty or of any liability or obligation guaranteed hereby, and, in
general, waive any and all suretyship defenses or defenses in the nature thereof The
undersigned do hereby consent without notice to any extension of time for payment or
performance, forbearance to collect or enforce and to any other indulgence granted by the
LENDER to the BORROWER or any one or more of them, to the release of any person
primarily or secondarily liable hereunder or under any liability or obligation guaranteed
hereby to the substitution, exchange or release of collateral given to secure this guaranty
or to secure any liability or obligation guaranteed hereby.
Any sums credited by or due from the LENDER to any one or more of the undersigned or
any property of any one or more of the undersigned in the possession of the LENDER
may at any time be held as collateral for the payment or performance of the obligations of
the undersigned or any one or more of them hereunder. Regardless of the adequacy of
collateral, the LENDER may apply such sums against the obligations of the undersigned
�—WG
or any one or more of them hereunder. This guaranty shall insure to the benefits of the
LENDER, its successors and assigns. This guaranty shall be binding upon the
undersigned, their respective administrators, executors, heirs and personal
representatives.
This guaranty shall be construed as an instrument under seal and in accordance with the
law of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, We hereunto set our hands and seals this—L�--2 day of
December 2009.
The Bioengineering Group, Inc.
IAA�
W��es; Wendi Goldsmith, President
18 Commercial Street
Salem, MA 01970
RAJ9390VA
Wxy Pubft
cowwwjfAm OF WAVDIMM
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my Coffftssim E�Dxpires
june 29,2013
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Return to:
City of Salem
Department of Planning and Community Development
120 Washington Street
Salem, MA 01970
MORTGAGE AND SECuRiTy AGREEMENT
Robert if. Solomon, Trustee of River Wharf Realty Trust u/d/t dated June 30, 1999 (Recorded
with Essex South District Registry of Deeds in Book 15780, Page 107), of 18 Commercial Street,
Salern, Essex County, Massachusetts, hereinafter referred to as the "Mortgagor", FOR
CONSIDERATION PAID HEREBY GRANTS to The City of Salem, Planning and Community
Development, 120 Washington Street, Salein, Massachusetts, hereinafter referred to as the
"Mortgagee", with MORTGAGE COVENANTS,to secure the payment of Two Hundred Thousand
Nine Hundred Twenty-Five and 00/100 Dollars ($200,925.00)on or before December 31, 2016,
with interest thereon, as provided in the Mortgagor's note of even date including all extensions,
renewals and modifications thereot or as provided in Mortgagor's guaranty of even date, to secure
the performance of, or payment to the Mortgagee pursuant to all covenants and agreements herein
and in said note or guaranty contained, and to secure payment of or performance of all other debts,
covenants and agreements of or by the Mortgagor to or for the benefit of the Mortgagee now
existing or hereafter accruing while this mortgage is still undischarged or record, the land in
Salem, MA as described in Exhibit "A" annexed hereto, which is incorporated herein by this
reference, together with any and all improvements now or hereafter situated thereon.
Also, the Mortgagor hereby grants to the Mortgagee a security interest in all equipment (as
defined in the Uniform Commercial Code), appliances, furnishings and fixtures now or hereinafter
placed on the above described premises, or used in connection therewith, and the proceeds
therefrom, and agrees to execute on demand of the Mortgagee all instruments necessary to perfect
or continue such security interest, and in the event of default hereunder the Mortgagor hereby
grants the Mortgagee full power and authority as attorney irrevocable of the Mortgagor to execute,
deliver and record and/or file such instruments. This Agreement is intended to take effect as a
security agreement and is to be filed with Essex South District Registry of Deeds in lieu of a
financing statement pursuant to Massachusetts General Laws Chapter 106, Section 9-402.
Said land, improvements, appliances, furnishings and fixtures are hereinafter referred to as
the"premises."
The Mortgagor hereby covenants and agrees to the following as conditions of this
mortgage:
(1) To perform all of the covenants and agreements contained in said note or guaranty;
(2) To pay at least ten(10) days before due all taxes, charges for water, sewer and
other municipal services, and assessments, whether or not assessed against the Mortgagor, if
applicable or related in any way to the premises, or any interest of the Mortgagor,the Mortgagee,
or any other person or organization therein, or the debt, obligations or performance secured
hereby, or the disbursement or application of the proceeds therefrom, excluding, however, any
income or corporation excise tax of the Mortgagor;on the demand of the Mortgagee to Pay to the
Mortgagee on each day that payments are required by the terms of the note secured hereby, in
addition to the payments of principal and/or interest provided in said note, a sum equal to such
fraction of the real estate taxes, charges and betterment assessments for each year as shall be
estimated by the Mortgagee to be sufficient for the Mortgagee to provide in the aggregate, a sum
equal to said taxes, charges and assessments as and when they become due and payable, and in
addition to pay to the Mortgagee any balance necessary to account in full for the amount of said
taxes, charges and assessments prior to the date when they become due and payable; it being
understood and agreed that such sums shall not bear interest and may be commingled with the
general assets of the Mortgagee, that the Mortgagee shall not be required to account for any profits
resulting ftom its use thereof and that said sums are held by the Mortgagee for payment on
account of such taxes, charges and assessments and/or any other obligations of the Mortgagor
hereunder;to forward to the Mortgagee receipted real estate tax bills as soon as the same have
been paid by the Mortgagor or, in case tax payments are required to be made to the Mortgagee, to
forward to the Mortgagee real estate tax bills as soon as the same have been received by the
Mortgagor;
(3) To keep the premises insured against fire and all such other casualties and
contingencies as the Mortgagee may from time to time require; to deposit at the demand of the
Mortgagee all insurance policies or memorandum thereof with the Mortgagee forthwith after the
bind of such insurance, and to deliver to the Mortgagee new policies or memoranda thereof for
any insurance about to expire at least seven (7) days before such expiration, all such insurance to
be first payable in case of loss to the Mortgagee and to be written by such companies, on such
terms, in such form and for such periods and amounts as the Mortgagee shall from time to time
designate or approve, and the Mortgagor hereby grants the Mortgagee in the event of a default
hereunder full power and authority as attorney irrevocable of the Mortgagor to cancel or transfer
such insurance and to retain any premium or proceeds and to apply the same to the debt secured
hereby;
(4) To put, maintain and keep the premises at all times in as good repair and condition
as the same now are or hereafter may be put, damage from casualty, expressly not excepted,
permitting and suffering no waste or strip of the same to occur, nor any violation of any law,by-
law, ordinance, restriction, regulation, order or code affecting the premises or the use thereof, and
not to remove or alter any of the improvements equipment, appliances, furnishings, and fixtures,
constituting part of the premises without the consent of the Mortgagee;
(5) To occupy the entire premises, or cause the same to be occupied by lessees (which
term shall include licensees and concessionaires) and to assign and deliver to the Mortgagee on
demand any or all leases of the premises or any part thereof, or at the Mortgagee's election, to
assign and deliver any or all rents and other income reserved in such leases, said assignments to be
in form and substance satisfactory to the Mortgagee, and the Mortgagor hereby grants the
Mortgagee full power and authority as attorney irrevocable of the Mortgagor to make, execute,
acknowledge, deliver and record such assignments, and not in limitation of the foregoing, to
provide that after any default by the Mortgagor hereunder or under the terms of such assignments,
the Mortgagee shall be entitled to modify and otherwise deal with all such leases with the same
power and discretion which the Mortgagee would have if it were the lessor thereof and the
Mortgagee shall be entitled to collect all of the rents and other income reserved in such leases and
to apply the same to the debt secured hereby, and after foreclosure the Mortgagee shall not be
liable to account to the Mortgagor for rents or other income thereafter accruing, provided
however; that any such assignments shall also provide that the Mortgagor may have and retain
such rents and other income until such default occurs; and the Mortgagee shall further have the
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right to subordinate this Mortgage and its rights hereunder to any lease or leases of the premises
now or hereafter in force, and upon execution and recording of any instruments by the Mortgagee
which purport to effect such subordination, this Mortgage shall be subordinate to the lease or
leases referred to in such instruments with the same force and effect as if such lease or leases had
been executed and delivered prior to the execution, delivery and recording of this Mortgage;
(6) To observe and perform all the obligations imposed upon the Mortgagor under any
leases of the premises, and not to do or permit to be done anything which would impair the
security of such leases to the Mortgagee, nor to cancel or change any terms, conditions or
covenants of any leases of the premises or any part thereof without the prior written consent of the
Mortgagee, nor to execute any leases providing for payment of rent for more than one month in
advance, nor to receive rent from all or any part of the premises for more than one month in
advance without the prior written consent of the Mortgagee, and any such advance rent in excess
of one month received shall be held by the Mortgagor in trust for the benefit of the Mortgagee;
(7) To furnish the Mortgagee, from time to time, within a reasonable time after its
demand, a true and complete statement of the annual operating expenses and income of the
premises, and financial statements to be in form satisfactory to the Mortgagee;
(8) That if the premises or any part thereof shall be damaged or destroyed by fire or
other hazard against which insurance is held, or if the premises or any portion thereof shall be
taken by eminent domain, no settlement on account of any loss or damage shall be made without
the consent of the Mortgagece, and any proceeds from insurance or damages for such taking, as
the case may be, shall be paid to the Mortgagee, and the Mortgagor hereby irrevocably assigns the
same to the Mortgagee; the Mortgagee as its discretion may either apply such proceeds against the
debt secured hereby(in which case the Mortgagor's obligations hereunder to restore such damage
to the premises as may have been caused by such fire, other hazard or taking shall terminate), or
release such portion of the proceeds to the Mortgagor as is necessary to restore the premises to
their prior condition insofar as is practicable, upon such terms and conditions as the Mortgagee
deems appropriate, and apply the balance thereof� if any, t the debt secured hereby; provided,
however, that if any insurer of the premises denies liability, the Mortgagor shall not be relieved of
its obligation to restore the premises;
(9) If the Mortgagee shall become involved in any action or course of conduct with
respect to the premises, or other security for the debt secured hereby, in order to protect its interest
therein, including without limitation: The Mortgagee's commencement and prosecution of
foreclosure proceeding; its involvement in bankruptcy proceeding concerning the Mortgagor; the
Mortgagee's entering the premises, care and management thereof, or its defending or participation
as a party in any action at law or in equity brought by the Mortgagor or any other person or
organization with respect to the premises (or other security for the debt secured hereby), the
Mortgagor shall reimburse the Mortgagee for all charges, costs and expenses incurred by the
Mortgagee in connection therewith, including without limitation attorney's fees and an additional
reasonable fee to compensate the Mortgagee for overhead and personnel salaries and wages
attributable to undertaking such actions or conduct;
(10) That at any foreclosure sale of the premises, the premises and any combination or
all of the other security for the debt secured hereby may be offered for sale for one total price, and
the proceeds of such sale may be accounted for in one account without distinction between the
items of security or without assigning to them any proportion of such proceeds,the Mortgagor
hereby waiving the application of any doctrine of marshaling; and the Mortgagee may, in the
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exercise of the power of sale herein given, sell the premises and said other security in parts or
parcels, said sales may be held from time to time, and the power shall not be fully executed until
all of the premises and said other security not previously sold shall have been sold; if surplus
proceeds are realized from a foreclosure sale, the Mortgagee shall not be liable for any interest
therein pending distribution of such proceeds by the Mortgagee;
(11) To notify the Mortgagee promptly of the existence of and the exact details of any
other security interest in the premises, now existing or hereafter arising, to make all payments that
become due to any secured party having such security interests, and at the request of the
Mortgagee to assign to the Mortgagee all its right, title and interest in and to any and all
agreements evidencing such security interest covering any of said security, and the Mortgagor
hereby grants the Mortgagee full power and authority as attorney irrevocable of the Mortgagor to
make, execute, acknowledge and deliver such assignments. The Mortgagor represents that no
security interest presently exists in any of said security except as has heretofore been disclosed in
writing to the Mortgagee;
(12) That the Mortgagee shall be entitled, but not obligated,to cure any default of the
Mortgagor hereunder, and shall be reimbursed by the Mortgagor for all costs, charges and
expenses, including without limitation attorneys' fees, incurred in connection therewith, and that
all sums for which the Mortgagee may be entitled to reimbursement shall be added to the principal
sum of the debt secured hereby, shall earn interest at the rate set forth in said note, or the note
guaranteed by said guaranty, shall be secured by this Mortgage, and shall be payable on demand of
the Mortgagee, whether or not the remaining principal balance of said note or guaranty has been
declared due and payable;
(13) In the event the legal or beneficial ownership of said premises, or any portion
thereof or interest therein, becomes vested in anyone other than the Mortgagor, or upon the death
of, or appointment of a guardian or conservator for,the Mortgagor or any guarantors or endorsers
(other than an endorser without recourse of the note secured hereby), the entire mortgage debt
shall, at the option of the Mortgage, become due and payable on demand, provided, however, that
the Mortgagee may, without notice to the Mortgagor, deal with the Mortgagor's successor or
successors in interest with reference to the mortgage and the debt secured hereby in the same
manner as with the Mortgagor without in any way vitiating or discharging the Mortgagor's
liability or obligations with respect to this mortgage or the debt secured hereby. No sale of the
premises hereby mortgaged and no forbearance of the part of the Mortgagee or extension of the
time for the payment of the debt secured hereby or any other indulgence given by the Mortgagee
shall operate to release, discharge, modify, change or affect the original liability of the Mortgagor,
nor the priority of this mortgage either in whole or in part,notice of such forbearance, extension or
other indulgence being hereby expressly waived;
(14) That the Mortgagor shall not:
(a) create or permit to be created any encumbrance to attach to the premises
(except for the payment of real estate taxes and betterment assessments prior to the
commencement of interest and penalties thereon), and if such encumbrance is attached upon the
premises without the consent of the Mortgagee,to discharge the same within thirty(30) days of
the sate of such attachment;
(b) if the Mortgagor is a corporation, liquidate or dissolve or permit its
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liquidation or dissolution; if the Mortgagor is a trustee or trustees, terminate or dissolve or permit
its termination or dissolution;
(c) file a petition or application under any state or federal bankruptcy,
insolvency or debtor's relief law, nor consent to an assignment or composition for the benefit of
the Mortgagor's creditors, nor consent to appointment of a receiver for any of the Mortgagor's
property; if such petition, application or receivership proceedings are instituted against the
Mortgagor by any third party or parties, the Mortgagor shall not permit the same to remain
undischarged for more than twenty-five (25) days after the commencement thereof;
(15) If this mortgage is at any time subject or subordinate to another mortgage,the
Mortgagor shall not modify, amend, or extend such prior mortgage, or the debt or other obligation
secured thereby, without the consent of the Mortgagee; any default under said prior mortgage or
the obligations secured thereby shall be a default hereunder, and the Mortgagee shall be entitled
but not obligated to cure said default, as provided in Paragraph 12 hereof-,
(16) Amy notice, demand or other communication from the Mortgagee to the Mortgagor
shall be deemed satisfactorily given upon depositing the same in writing in the United States mail
by postage prepaid, registered or certified mail, addressed to the Mortgagor(or any one of them if
there be more than one) at the Mortgagor's latest address in the mortgage records maintained by
the Mortgagee;
(17) The Mortgagor will not further encumber the mortgaged premises by a second
mortgage, a wraparound mortgage or any other superior or subordinated type of mortgage without
the prior consent of the Mortgagee; and
(18) That with respect to hazardous materials and matters related thereto:
(a) Mortgagor shall comply strictly with the requirements of every federal, state
and local law, ordinance and regulation, including Massachusetts General Laws Chapter 21E,
pertaining to "oil" and "hazardous material" as the same may be amended from time to time
(collectively by the "Statutes");
(b) Mortgagor is now aware of any operations or materials, and is not and will
not become involved in any operations, at the premises or at any other locations which could lead
to the imposition on Mortgagor or Mortgagee of liability under any of the Statutes;
(c) In the event there are activities on the premises (by any person or entity)
which involve or may involve oil or hazardous material, or the premises themselves contain or
may contain, oil or hazardous material, Mortgagor shall immediately take all steps necessary to
insure that liability shall not be asserted against Mortgagor or Mortgagee under any of the
Statutes;
(d) Mortgagor shall notify Mortgagee promptly in the event there is the
presence or release, or suspected presence or release, of oil or hazardous material on the premises;
(e) In any and all circumstances, Mortgagee shall have the right to review and
approve, prior to implementation, any plan for cleanup and/or removal or oil or hazardous material
Mortgagee may hire or retain consultants, at Mortgagor's expense, to assist Mortgagee in its
5
review of any proposed response plan, which approval shall not unreasonably be withheld or
delayed;
(f) In the event Mortgagor fails to comply with any of the Statutes or fails to
comply with any of its obligations under this paragraph 18, the note, guaranty or obligation
secured hereby shall at the election of Mortgagee be deemed to be in default, upon which event, or
upon any other event of default, Mortgagee, may, at its election, but without the obligation to do
so, obtain any expert site assessment report, at Mortgagor's expense, give such notices or cause
such work to be performed at the premises, or take any and all other actions as Mortgagee deems
necessary, as shall cure (or work toward curing) said failure of compliance, and any amounts paid
as a result of said notices or such work, together with interest thereon at the rate of interest set
forth in the note or the obligation secured hereby, from the date of payment, shall be immediately
due and payable by Mortgagor to Mortgagee, and until paid shall be added to and become part of
the balance due on the note or other obligation secured hereby, and the same may be collected as
part of said balance due in any suit hereon or upon the note or guaranty; or Mortgagee,by the
payment of any assessment, claim or charge, may in its sole discretion, be thereby subrogated to
the rights of the Commonwealth of Massachusetts,the United States of America or any other
governmental body arising pursuant to any of the Statutes.
(g) As used in this Paragraph(18), the words "oil", "hazardous material" and
"release" have the meanings given them in Massachusetts General Laws, Chapter 21 E.
Any breach in the covenants, conditions or agreements contained in this mortgage or in
any instrument given in connection with the note and debt secured hereby, or in any other
mortgage, debt or obligation of or from the Mortgagor to the Mortgagee shall constitute a default
hereunder, and if such default shall exist for more than thirty(30) days, the entire debt secured
hereby, together with all prepayment penalties to which the Mortgagee would be entitled under
said note or by law if said note were prepaid in full at the end of said thirty-day period, shall
become due and payable at the option of the Mortgagee, and the Mortgagee shall have the
statutory Power of Sale as hereinafter provided.
In case any provision of said note, this mortgage,or any instrument executed by any
person or organization in connection therewith shall be found unenforceable or invalid for any
reason, the enforcement of any other provision hereof shall not be impaired thereby, and such
provision shall be deemed modified to the extent necessary to be enforceable, or if such
modification is not practicable, shall be deleted from this mortgage.
This mortgage is upon the Statutory Condition and upon the further condition that all
covenants and agreements of the Mortgagor in said note, this mortgage, all other instruments
executed in connection therewith and in all other mortgages, debts and obligations of or from the
Mortgagor to the Mortgagee shall be kept and fully performed, and upon any breach of the same
Mortgagee shall have the STATUTORY POWER OF SALE and any other powers given by statute.
The word "Mortgagor" as used herein means the Mortgagor named herein, whether one or
several, and also means any subsequent owner or owners of the equity of redemption of the
premises, and all of the covenants and agreements of the Mortgagor herein contained shall be
binding upon the Mortgagor, its heirs, executors, administrators, successors and assigns and shall
be joint and several if more than one person constitute the Mortgagor. The word "Mortgagee" as
used herein means the Mortgagee named herein and any subsequent holder or holders of this
mortgage.
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WiTNEss the execution hereof under this seal this 15 day of December 2009.
Robertf. Solonion, Trustee
COMMONWEALTH OF MASSACHUSETTs
Essex, ss. December 2009
Then personally appeared the above-named Robert S. Solomon and acknowledged the
foregoing instrument to be her free act and deed, before me,
/!!! 6A!!�
JANA RAJNOSKOVA Notary Public
pLd= My commission expires:
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Exhibit A - Property Description
The land, together with the buildings thereon, if any, situated at 18 Commercial Street in Salem,
Essex County, Commonwealth of Massachusetts,bounded and described as follows:
Parcel No. 1
Beginning at a point on the northerly side of Commercial Street at the SOUTHWESTERLY
comer of land formerly of George F. Lord, thence running in a Northerly direction along the
Westerly property line of the property now or formerly of George F. Lord, a distance of eighty-
nine and 85/100 (89.85) feet to a point; thence turning and running in a
NORTHWESTERLY direction a distance of fifty and 051100 (50.05) feet along land now or
formerly of H.P. Hood & Sons, Inc.; thence fuming and running in a SOUTHERLY direction
along land now or formerly of the City of Salem, a distance of ninety-two and 57/100 (92.57)
feet; thence turning and running in an EASTERLY direction along the Northerly street line of
Commercial Street, a distance of fifty(50) feet to the point of beginning.
Containing 4,560 square feet of land, as shown on a plan filed with the Essex South District
Registry of Deeds entitled "Land of City of Salem, Rear of North Street, Salem, Mass., May
1955, Revised October 1955 —Edgar W. Nickerson, City Engineer" in Book 4809, Page 500.
Parcel No. 2
The land in said Salem with the buildings thereon, if any, situated on the North side of the North
River Canal and bounded and described as follows:
Beginning at the SOUTHEASTERLY comer of said lot on the Northwesterly side of a proposed
road the same point being three hundred and eighty-eight and 44/100 (388.44) feet Southwesterly
from North Street; thence running
SOUTHWESTERLY by the Northwesterly street line of said proposed road seventy (70) feet to
other land now or formerly of the City of Salem; thence turning and running
NORTHWESTERLY by said other land now or formerly of the City of Salem, eighty-nine and
85/100 (89.85) feet to land now or formerly of H.P. Hood & Sons, Inc.; thence turning and
running EASTERLY by said land now or formerly of H.P. Hood & Sons, Inc., seventy and
12/100 (70.12) feet to land now or formerly of Cook; thence turning and running
SOUTHEASTERLY by said land now or formerly of Cook, eighty-six and 6/100 (86.06) feet to
the point begun at.
Containing 6,156 square feet of land and being shown on a plan entitled "Land of the City of
Salem, rear of North Street May 1955, Revised October 1955, Edgar W. Nickerson, City
Engineer and hereinbefore referred to.