Exhibit 10.5
Return to:
Xxxxx & Xxxxxxxxx, P.C.
000 Xxxx Xxxxxx, Xxxxx 000
X.X. Xxx 000
Xxxxxx, XX 00000-0000
Account #
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MORTGAGE DEED AND SECURITY AGREEMENT
This Mortgage Deed and Security Agreement is made this 13th
day of February, 2004, by and between Micronetics, Inc., formerly
Micronetics Wireless, Inc., a Delaware corporation, with a place
of business at 00 Xxxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx 00000
(the "Mortgagor") and Banknorth, N.A., a national banking
association, with its principal office at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxxxxx and a mailing address of X.X. Xxx 000,
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000-0000 (the "Mortgagee").
KNOW ALL MEN BY THESE PRESENTS
That Mortgagor, for consideration paid, hereby irrevocably
grants, mortgages, transfers and assigns to the Mortgagee, the
following tract(s) of land and other property:
I. LAND: Each of those certain parcels of land situated
in Hudson, New Hampshire, more particularly described in Exhibit
A annexed hereto and hereby made a part hereof (the "Premises").
II. IMPROVEMENTS: All buildings and improvements now
situated upon the Premises or which may hereafter be constructed
on the Premises or added thereto, together with all fixtures now
or hereafter owned by Mortgagor or in which Mortgagor has an
interest (but only to the extent of such interest) and placed in
or upon the Premises or the buildings or improvements thereon
(the "Improvements").
III. EASEMENTS: Any easement, bridge or right of way,
contiguous or adjoining the Premises and the Improvements
thereon, and all other easements, if any, inuring to the benefit
of the Premises.
IV. PERSONAL PROPERTY AND FIXTURES: All the equipment,
personal property and fixtures of every kind and description now
or hereafter owned by the Mortgagor or in which Mortgagor has an
interest (but only to the extent of such interest) and situated
or to be situated upon the Premises or in any of said buildings
and Improvements, together with any renewals, replacements or
additions thereto or substitutions therefor, and now or hereafter
located at, or used in connection with the operation of the
Premises or the Improvements.
All of which land, Improvements and other property hereby
granted, sold and conveyed, or intended so to be, hereinafter
generally referred to as the "Mortgaged Property".
TOGETHER WITH:
A. PROCEEDS FOR DAMAGE TO THE MORTGAGED PROPERTY: All
proceeds paid for any damage done to the Mortgaged Property, or
any part thereof, or for any portion thereof appropriated for any
character of public or quasipublic use in accordance with the
provisions, terms and conditions hereinafter set forth.
B. RENTS: All of the rents, issues, benefits and profits
of the Mortgaged Property as provided in the Collateral
Assignment of Leases and Rents of even date herewith delivered by
the Mortgagor to the Mortgagee (the "Collateral Assignment").
C. RECORDS: All of the records and books of account now
or hereafter maintained by Mortgagor in connection with the
operation of the Premises.
D. NAME AND GOODWILL: The right, in event of foreclosure
hereunder of the Mortgaged Property, to take and use any name by
which the Mortgaged Property is then known, and the goodwill of
Mortgagor with respect thereto.
SUBJECT, HOWEVER, to those certain liens, encumbrances and
other matters, if any, set forth in Exhibit A (hereinafter
sometimes referred to as the "Permitted Encumbrances").
TO HAVE AND TO HOLD the Mortgaged Property unto the
Mortgagee, and its successors, and assigns forever, together with
all and singular the tenements, hereditaments, and appurtenances
belonging or in anyway appertaining thereto, whether now owned or
acquired hereafter, with the reversions, remainders, rents,
issues, incomes and profits thereof, and all of the estate,
right, title, interest and claim whatsoever which Mortgagor now
has or may hereafter acquire in and to the Mortgaged Property.
And Mortgagor does hereby bind itself, its heirs, successors and
assigns, to warrant and forever defend the same unto the
Mortgagee, or its successors, against all persons whomsoever
claiming or to claim the same or any part thereof.
The conveyance is made for the purpose of securing:
(1) Payment of all principal, interest and other
amounts pursuant to the terms of a promissory note of Mortgagor
of even date herewith in the amount of Six Hundred Thirty
Thousand and No/100ths Dollars ($630,000.00) payable to the order
of the Mortgagee and any and all extensions, modifications and
renewals thereof and substitutions therefor, such promissory
note, as extended, modified, or renewed or its substitution, is
referred to as the "Note", and of the performance of every
obligation and agreement of Mortgagor contained in the Note, and;
(2) Performance by Mortgagor of all of its obligations
and payment of any amounts due under (a) the Collateral
Assignment and (b) any other document or instrument securing the
Note;
(3) Performance of each and every obligation of
Mortgagor contained in this Mortgage and payment of any sums due
hereunder;
(4) Payment of any and all sums or indebtedness now or
hereafter existing and owed to Mortgagee from Mortgagor.
ARTICLE I - Covenants and Warranties.
Mortgagor covenants, warrants and agrees as follows:
1.1 Mortgagor is lawfully seized of the Mortgaged
Property and has the right to encumber it with the lien created
by this instrument, which lien is subject only to the Permitted
Encumbrances. Mortgagor will defend the title thereto in any
action affecting the rights of the Mortgagee hereunder and pay
all costs of any such action (including, but not limited to,
attorneys' fees), whether or not such action (i) progresses to
judgment, or (ii) is brought by or against the Mortgagee.
1.2 Mortgagor will pay (before they become delinquent)
all taxes and exhibit the receipts therefor to the Mortgagee.
The term "taxes" as used in the paragraph shall be deemed to
include all assessments, impositions and other governmental
charges, ordinary or extraordinary, foreseen or unforeseen, which
may be levied, assessed or otherwise become a lien upon or charge
against the Mortgaged Property, or the interest created therein
by this instrument. If an Event of Default as defined in
Article V hereof shall occur, then, upon written demand by the
Mortgagee, the Mortgagor will deposit monthly with the Mortgagee
or its duly authorized agent an amount which will create a fund
sufficient to make each and every payment of taxes in the future
as the same shall become due and payable. Such deposits shall be
received and held by the Mortgagee or its agent, in a noninterest
bearing account, and applied to the payment of each installment
of such taxes as it becomes due and payable and Mortgagor shall
furnish to the Mortgagee or its agent, promptly upon receipt, the
tax bills with respect thereto. If Mortgagor shall have
deposited amounts in the aggregate more than sufficient to pay
such taxes, the excess shall be applied by the Mortgagee toward
the deposits next required to be made hereunder or at its
election shall be repaid to Mortgagor. All of Mortgagor's
interest in such deposits is hereby assigned by Mortgagor to the
Mortgagee, and the Mortgagor hereby pledges to the Mortgagee an
interest in such deposits, as additional security for the payment
of the indebtedness secured hereby in the event that an Event of
Default shall occur hereunder. Upon payment in full of all
indebtedness secured hereby, any monthly deposits then held by
the Mortgagee or its agent shall be repaid to Mortgagor, or as
otherwise may be required by law.
1.3 Mortgagor will also pay (before they become
delinquent) any and all assessments, water, sewer and other
utility charges and all other charges and encumbrances which are
or may be a lien upon the Mortgaged Property.
1.4 Mortgagor will commit or permit no waste on the
Mortgaged Property and will keep all Improvements now or
hereafter erected on the Premises in a sound condition and in a
first-class state of decoration and repair.
1.5 Mortgagor will:
1.5.1 Promptly repair, restore, rebuild,
replace or alter as necessary any portion of the Mortgaged
Property which may be damaged or destroyed by fire or other
casualty, or taken by condemnation, as nearly as possible to the
condition such Improvements were in prior to such damage,
destruction or taking, without regard to the availability or
adequacy of insurance proceeds or condemnation awards. Mortgagor
will give the Mortgagee prompt notice of damage to such
Improvements or personal property in excess of $10,000.00;
1.5.2 Pay when due all claims for labor and
materials thereon;
1.5.3 Provide management satisfactory to the
Mortgagee;
1.5.4 Not remove or demolish any such
Improvements, and make no change or alteration to such
Improvements as would change their general character or size,
without the prior consent of the Mortgagee. Mortgagor further
covenants that it will not make, authorize or permit to be made
any structural alterations, or any alteration the estimated cost
of which exceeds $10,000.00, except in such manner and under such
terms and conditions as the Mortgagee may reasonably require. No
fixtures or personal property shall be removed from the Premises
or such Improvements during the course of any work performed in
accordance with this subsection except as authorized in Section
8.10, without the prior consent of the Mortgagee. The provisions
of this subsection shall apply to any change, alteration or
addition made or required to be made by Mortgagor in the course
of complying with the provisions of any other Section contained
herein.
1.6 Mortgagor will continuously operate the Mortgaged
Property in material compliance with (a) all applicable laws,
ordinances, rules, regulations and directions of government
authorities having jurisdiction of the Premises, and (b) the
requirements of all policies of insurance on the Mortgaged
Property and of the national or local Boards of Fire
Underwriters. Mortgagor will also procure, pay for and maintain
all permits, licenses and other authorizations needed for the
operation of such.
1.7 Mortgagor will keep proper and separate books of
account, in accordance with generally accepted accounting
practice, and make, or cause to be made, full and true entries of
all dealings with transactions of every kind relating to the
Mortgaged Property, which books and records will be open to
inspection by the Mortgagee, its agents, accountants and
representatives, at all reasonable times. Within ninety (90)
days after the end of each fiscal year of Mortgagor, Mortgagor
will furnish the Mortgagee with Mortgagor's annual financial
statements, which statements shall include a profit and loss
statement, as at the last day of such fiscal year which shall be
prepared in reasonable detail in accordance with generally
accepted accounting practice, and shall be in form satisfactory
to Mortgagee. Mortgagor shall also deliver copies of its federal
tax returns to Mortgagee at the time it submits its financial
statements.
1.8 All leases of all or any portion of the Mortgaged
Property hereafter made by Mortgagor will be subordinated to the
lien created by this Mortgage, and shall provide that, at the
option of the Mortgagee, the tenant thereunder shall attorn to
the Mortgagee or any assignee of the Mortgagee. Except for
leases at market rents in the ordinary course of business, no
lease will be executed by Mortgagor without prior written
approval of the Mortgagee. Mortgagor will, from time to time,
promptly upon demand, deliver to the Mortgagee a true and correct
schedule of all such leases then in effect, showing the name of
the tenant, the space occupied, the rental rate and the
expiration date of the term.
1.9 The Mortgagor is and will continue to be a duly
organized and validly existing corporation under the laws of the
State of Delaware, is duly authorized to do business as a foreign
corporation in each state in which the character of the
properties owned by the Mortgagor, or the nature of the business
transacted by it therein make such qualifications necessary, and
is duly authorized to enter into and perform the Note, this
Mortgage and the acts required by them.
1.10 None of the terms and conditions of the Note
or this Mortgage are beyond its powers or in contravention or
violation of any provisions of New Hampshire law, or of
organizational and governing agreements, or of any contract to
which it is or may become a party.
1.11 No litigation or proceeding, governmental or
otherwise, is pending, or to the knowledge of its principals,
threatened against it, which could have a material adverse effect
on its financial condition or business.
ARTICLE II - Insurance.
2.1 Mortgagor will at all times (a) keep the Mortgaged
Property insured, for the mutual benefit of Mortgagor and the
Mortgagee, as their respective interests may appear, in amounts
sufficient to prevent the Mortgagor or the Mortgagee from
becoming a coinsurer of any loss under the applicable policies
but in any event in amounts not less than 100% of the full
replacement value of the Mortgaged Property, against loss or
damage by (i) fire, such other risks and hazards as now are or
hereafter may be insured under standard "Extended Coverage" forms
or endorsements, and (ii) such other risks of damage as the
Mortgagee shall from time to time reasonably require, provided
that insurance against such other risks shall then be commonly
carried by prudent owners or lessees of buildings or improvements
in the locality similar in character, construction, use and
occupancy to the Improvements then constituting a portion of the
Mortgaged Property; and (b) maintain general accident and public
liability insurance against all claims for bodily injury, death
or property damage occurring upon, in or about the Premises or
the Improvements thereon, or any vault space or sidewalk
adjoining the Premises, or any area or passageway adjacent to the
Premises which is under the control of Mortgagor, such insurance
to afford protection to such limits as the Mortgagee may
reasonably require.
2.2 All such insurance shall be evidenced by valid and
enforceable policies in form and substance, and issued by such
insurers of recognized responsibility authorized to do business
in the state where the Premises are located, which are approved
by the Mortgagee. The originals of all such policies provided
for in Section 2.1 hereof shall be delivered to the Mortgagee
concurrently with the execution and delivery of this Mortgage,
and thereafter all renewals or replacement policies shall be so
delivered to the Mortgagee not less than fifteen (15) days prior
to the expiration date of the policy or policies to be renewed or
replaced, in each case accompanied by evidence satisfactory to
the Mortgagee that all premiums currently payable with respect to
such policies have been paid in full by Mortgagor.
2.3 All policies of insurance of the character
described in subdivision (a) of Section 2.1 hereof shall:
2.3.1 Contain a standard noncontributory form
of mortgage clause satisfactory to the Mortgagee, which clause
shall name the Mortgagee;
2.3.2 Provide that such policies may not be
canceled or amended without at least thirty (30) days' prior
written notice (ten (10) days written notice in the event of
nonpayment of premiums) to the Mortgagee, that the Mortgagee
shall in no event be responsible for the payment of any premiums
thereon or assessments thereunder), and that no act of negligence
of Mortgagor, its agents, servants or employees, or any tenant or
other occupant of all or any portion of the Mortgaged Property
which might otherwise result in a forfeiture of such insurance or
any part thereof, shall in any way affect the validity or
enforceability of such insurance insofar as the Mortgagee is
concerned.
All policies of insurance of the character described in
subdivision (b) of Section 2.1 hereof shall provide that such
policies may not be canceled or amended without at least sixty
(60) days prior written notice to the Mortgagee.
2.4 Mortgagor will furnish to the Mortgagee, within
ten (10) days after demand, receipted bills or other evidence
satisfactory to the Mortgagee of payment of all premiums due on
all insurance policies required to be maintained hereunder.
Within ten (10) days after written demand by the Mortgagee, if an
Event of Default defined in Article V hereof shall occur, then,
upon written demand by the Mortgagee, the Mortgagor will deposit
monthly with the Mortgagee or its duly authorized agent an amount
sufficient to create a fund to make each and every payment of
insurance premiums as and when the same shall become due. Such
deposits shall be received and held by the Mortgagee or its
agent, in a noninterest bearing account, and applied to the
payment of the premium for each insurance policy required
hereunder as it becomes due and payable and Mortgagor shall
furnish to the Mortgagee or its agent, promptly upon receipt, the
insurance bills with respect thereto. If Mortgagor shall have
deposited amounts in the aggregate more than sufficient to pay
premiums under all insurance policies required hereunder, the
excess shall be applied by the Mortgagee toward the deposits next
required to be made hereunder or at its election shall be repaid
to Mortgagor. All of Mortgagor's interest in such deposits is
hereby assigned by Mortgagor to the Mortgagee, and the Mortgagor
hereby pledges to the Mortgagee an interest in such deposit, as
additional security for the payment of the indebtedness secured
hereby in the event that an Event of Default shall occur
hereunder. Upon payment in full of all indebtedness secured
hereby, any monthly deposits then held by the Mortgagee or its
agent shall be repaid to Mortgagor, or as otherwise may be
required by law.
ARTICLE III - Damage By Fire or Other Casualty.
3.1 If by reason of any damage or destruction to the
Mortgaged Property, any sums are paid under any insurance policy
mentioned in or contemplated by Article II hereof, such sums
shall be paid as follows:
3.1.1 If the aggregate insurance proceeds
received by reason of any single instance of such damage or
destruction shall be $50,000.00 or less, such insurance proceeds
shall be paid over to the Mortgagee and Mortgagor jointly or, at
the option of the Mortgagee, to Mortgagor alone, to be held as a
trust fund to be used first for the payment of the entire cost of
restoring, repairing, rebuilding or replacing the damaged or
destroyed Mortgaged Property before using the same for any other
purpose; provided, however, that if any Event of Default shall
exist hereunder at the time such proceeds are so to be paid over,
such proceeds shall be paid over to the Mortgagee alone, to be
applied in the Mortgagee's discretion to the payment of the
indebtedness secured hereby or the repair of the Mortgaged
Property.
3.1.2 If the aggregate insurance proceeds
received by reason of any single instance of such damage or
destruction shall exceed $50,000.00, such proceeds shall be paid
to the Mortgagee alone, to be applied toward reimbursement of all
costs and expenses of the Mortgagee in collecting such proceeds,
and then to the repair, restoration, rebuilding or replacement of
that part of the Mortgaged Property so damaged or destroyed, or
if an uncured Event of Default exists, at Mortgagee's sole
discretion to the payment of the indebtedness secured hereby.
The Mortgagee is authorized (i) to adjust and compromise such
loss without the consent of the Mortgagor, (ii) to collect,
receive and receipt for such proceeds in the name of the
Mortgagee and the Mortgagor, and (iii) to endorse the Mortgagor's
name upon any draft or check in payment thereof.
3.1.3 In the event that the insurance proceeds
received pursuant to Section 3.1.2 are to be applied to the
restoration of the Mortgaged Property, such restoration shall be
done, subject to the following conditions:
(a) Mortgagor shall submit to Mortgagee
plans and specifications and a budget of all costs for such
restoration, which items shall be reasonably satisfactory to
Mortgagee;
(b) at any time and from time to time, to
the extent the estimated cost of completion of such restoration
exceeds then available insurance proceeds during such
restoration, the Mortgagor shall deposit with Mortgagee the
amount of such deficiency or otherwise demonstrate the
availability of funds for such deficiency within twenty (20) days
after demand by Mortgagee;
(c) the deficiency referred to in clause (b)
of this section shall be spent on such restoration of the
Mortgaged Property prior to any advance of insurance proceeds by
Mortgagee;
(d) Mortgagee being satisfied that all
leases with respect to the Mortgaged Property which are in
existence at the time of such damage will be, at the time of
completion of the reconstruction or repair of the portions
damaged, in full force and effect; and
(e) such proceeds shall be disbursed subject
to such other terms and conditions as Mortgagee shall reasonably
require.
3.2 Nothing contained in this Article shall relieve
Mortgagor of its obligations in Section 1.5.1 hereof in the event
that no or inadequate proceeds of insurance are available to
defray the cost of such work, except that, on the occurrence of
any fire or other casualty which affects the Mortgaged Property,
Mortgagor shall have the right to pay the Mortgagee the entire
principal balance of the Note, together with all accrued and
unpaid interest thereunder to the date of such payment and all
other sums, if any, then due under this Mortgage. In addition,
nothing contained herein shall relieve Mortgagor of its duty to
pay all installments of principal and interest and to make all
other payments called for or required by the Note and this
Mortgage subsequent to the occurrence of any fire or other
casualty.
ARTICLE IV - Condemnation.
4.1 Forthwith upon receipt by Mortgagor of notice of
the institution of any proceeding or negotiations for the taking
of the Mortgaged Property, or any part thereof, in condemnation
or by the exercise of the power of eminent domain, Mortgagor
shall give notice thereof to the Mortgagee. The Mortgagee may
appear in any such proceedings and participate in any such
negotiations and may be represented by counsel. Mortgagor,
notwithstanding that the Mortgagee may not be a party to any such
proceeding, will promptly give to the Mortgagee copies of all
notices, pleadings, judgments, determinations and other papers
received by Mortgagor in connection therewith. Mortgagor will
not enter into any agreement for the taking of the Mortgaged
Property, or any part thereof, with anyone authorized to acquire
the same in condemnation or by eminent domain unless the
Mortgagee shall first have consented thereto.
4.2 In the event of a taking of all or substantially
all of the Mortgaged Property in condemnation or by eminent
domain, the whole of the principal sum and accrued and unpaid
interest evidenced and secured by the Note and this Mortgage,
together with all other amounts, if any, then due and secured
hereby, shall forthwith become due and payable, at the option of
the Mortgagee, and all awards paid or payable on account of such
taking shall be paid to the Mortgagee. As used in this Section,
a taking of all or substantially all of the Mortgaged Property
shall mean a taking of so much as leaves a balance which cannot
economically be operated for the purposes for which the same was
operated or intended to be operated prior to such taking.
4.3 In the event of a taking of less than
substantially all of the Mortgaged Property in condemnation or by
eminent domain, or by agreement in lieu thereof, all awards
payable as a result of such taking shall forthwith be paid to the
Mortgagee, and the proceeds of such awards shall, at the option
of the Mortgagee, be applied at the Mortgagee's sole discretion
either (i) towards the payment of the indebtedness secured hereby
or (ii) towards the repair or restoration of the Mortgaged
Property if such repair or restoration is commercially feasible
in the reasonable opinion of the Mortgagee; provided, however,
that if any Event of Default shall exist hereunder at the time
such proceeds are so to be paid over, such proceeds shall be paid
over to the Mortgagee alone, to be applied to the payment of the
indebtedness secured hereby. In the event Mortgagor shall
request, and Mortgagee shall agree, to repair, restore and alter
the Mortgaged Property to the extent required as a result of such
taking, the proceeds of such taking shall be disbursed in
accordance with and subject to the provisions of subsection
3.1.3.
ARTICLE V - Default Provisions.
The happening and continuance for the period, if any,
hereinafter indicated, of any of the following events shall
constitute an Event of Default hereunder:
5.1 Failure of Mortgagor to pay any:
5.1.1 Installment of principal or interest or
other amount when due under the Note prior to the expiration of
any grace period provided therein;
5.1.2 Other amount payable pursuant to this
Mortgage, or any supplement, modification or extension thereof
when due and the continuance of such failure for ten (10) days
after written notice from the Mortgagee of such failure.
5.2 Failure of Mortgagor to perform any of its
obligations, covenants, or agreements contained in this Mortgage
(other than an obligation to pay Mortgagee) and the continuance
of such failure for thirty (30) days after written notice thereof
from the Mortgagee to Mortgagor; provided, however, that if the
curing of such default cannot be accomplished with due diligence
within said period of thirty (30) days and Mortgagor commences to
cure such default promptly after receipt of notice thereof from
the Mortgagee, such period of thirty (30) days shall be extended
to a period of time necessary to cure such default with all due
diligence, but in no event shall such period exceed ninety (90)
days.
5.3 Mortgagor
5.3.1 Becomes insolvent (however such
insolvency may be evidenced); or
5.3.2 Makes an assignment for the benefit of
creditors; or
5.3.3 Is adjudicated a bankrupt; or
5.3.4 Admits in writing its inability
generally to pay its debts as they become due.
5.4 A trustee, custodian or receiver of Mortgagor's
business, or any substantial part of Mortgagor's assets, is
appointed by or at the behest of Mortgagor, or, if appointed in a
proceeding brought against Mortgagor, that Mortgagor approves of,
consents to, or acquiesces in such appointment, or such trustee
or receiver is not discharged within sixty (60) days.
5.5 Any proceedings involving Mortgagor are commenced
by or against Mortgagor under any bankruptcy or reorganization,
arrangement, probate, insolvency, readjustment of debt,
dissolution or liquidation law of the United States, or any
state, but if such proceedings are instituted against Mortgagor,
no Event of Default shall be deemed to have occurred hereunder
unless Mortgagor either approves of, consents to, or acquiesces
in such proceedings, or such proceedings are not dismissed within
sixty (60) days.
5.6 Any judgment, warrant, warrant of attachment,
garnishment, or any similar process is entered or filed against
Mortgagor or against any of Mortgagor's property or assets, and
is not vacated, satisfactorily bonded or stayed within sixty (60)
days.
5.7 Any direct or indirect mortgage, pledge,
hypothecation or encumbrance or any sale, lease (other than
tenant leases in the ordinary course of business), assignment or
other transfer of the Mortgaged Property is made by the
Mortgagor, without the prior written consent of the Mortgagee.
Any merger with Mortgagor or takeover of Mortgagor wherein the
surviving entity is not the Mortgagor.
5.8 Any representation or warranty made by Mortgagor
is not true in any material respect as of the date of the
issuance or making thereof as contained in:
5.8.1 This Mortgage, or any other instrument
now or hereafter securing the Note or executed or delivered in
conjunction therewith;
5.8.2 Any commitment letter, statement or
certificate furnished or signed by Mortgagor or on behalf of
Mortgagor pursuant or incident to the application for, or the
closing of, the transaction establishing the indebtedness secured
hereby.
5.9 The death, incompetency or incapacity to act of
the Mortgagor.
5.10 The occurrence of an Event of Default under
the terms of the Note, any other instrument now or hereafter
securing the Note or evidencing the indebtedness secured hereby
or the failure to comply with the terms and conditions of the
Collateral Assignment, or any commitment letter, statement or
certificate furnished or signed by Mortgagor or on behalf of
Mortgagor pursuant or incident to the application for, or the
closing of, the transaction establishing the indebtedness secured
hereby, all of which are hereby incorporated herein as if set
forth at length.
5.11 Any material adverse change in the financial
condition of, or act or omission of Mortgagor which leads
Mortgagee reasonably to believe that the performance of any of
the covenants, agreements, or conditions of the Note or this
Mortgage is or may be substantially impaired.
For the purposes of Section 5.3, 5.4, 5.5, 5.6 and 5.7
herein, the term "Mortgagor" shall be deemed to include Mortgagor
named herein, or any other person, firm, corporation or other
entity which is then the owner of all or substantially all of the
Mortgaged Property.
ARTICLE VI - Remedies Upon Default.
6.1 Upon the occurrence of any Event of Default
thereunder, the Mortgagee, at its option, without presentment,
demand, protest or notice of any kind, may declare the
indebtedness evidenced by the Note and secured by this Mortgage
immediately due and payable. However, the Mortgagee need not,
and is not obligated to, declare said indebtedness due as a
condition precedent to exercising its rights under the several
remedies upon default set forth herein.
6.2 Upon the occurrence of any Event of Default
hereunder:
6.2.1 The Mortgagee, at its option, without
obligation to do so, without notice to, or demand on, Mortgagor
and without releasing Mortgagor from any liability under the Note
or this Mortgage, may make any payment or perform any act which
Mortgagor is obligated to pay or do under the terms of this
Mortgage.
6.2.2 In exercising any of the rights set
forth under subsection 6.2.1 above, the Mortgagee may incur any
liability and expend whatever amounts it may deem necessary. All
such amounts, without notice or demand, shall be immediately due
and payable to the Mortgagee by Mortgagor with interest thereon,
to the extent permitted by law, at the same rate per annum as the
Note, and shall be secured hereby;
6.2.3 If the Mortgagee shall pay or discharge
any lien, rents or claim on the Mortgaged Property, or pay any
delinquent tax, assessment or similar charge, the Mortgagee shall
be subrogated to the rights of the holder of such lien, rents or
claim or to the rights of such taxing authority.
6.3 Upon the occurrence of any Event of Default
hereunder, the Mortgagee, at its option, without notice, without
any liability to Mortgagor, to the extent permitted by law and
without regard to the adequacy of the security for said debt,
may:
6.3.1 Enter upon and take possession of the
Mortgaged Property (with or without bringing any action or
proceeding in court); or
6.3.2 Demand and receive payment of all rents,
benefits and profits of the Mortgaged Property, including those
past due and unpaid (whether or not the Mortgagee has taken
possession of the Mortgaged Property); or
6.3.3 Have a receiver immediately appointed
for the Mortgaged Property and the earnings, revenues, rents,
issues, profits and other income thereof and therefrom, with all
such powers as the Court making such appointment shall confer.
6.4 If the Mortgagee enters upon and takes possession
of the Mortgaged Property as provided in Section 6.3, the
Mortgagee may operate and manage the Mortgaged Property and
perform any acts which the Mortgagee, in its sole discretion,
deems necessary or desirable to protect and preserve the
marketability, rentability, increase the income, or conserve the
value of the Mortgaged Property. The Mortgagee shall have no
liability for any action or inaction while in possession of the
Mortgaged Property so long as such action or inaction is taken or
refrained from being taken in good faith.
6.5 Upon the occurrence of an Event of Default
hereunder the Mortgagee is irrevocably appointed the agent and
attorney-in-fact of Mortgagor in its name and stead and on its
behalf, for the purposes of effectuating any sale for the
enforcement of this Mortgage, whether under the power of sale
hereby given or pursuant to judicial proceedings or otherwise, to
execute and deliver all such deeds, conveyances, bills of sale,
assignments, transfers and other instruments as the Mortgagee may
consider necessary or appropriate, and to substitute one or more
persons with like power, Mortgagor hereby ratifying and
confirming all that the Mortgagee, or such substitute or
substitutes, shall lawfully do by virtue hereof, provided
however, Mortgagee will give Mortgagor seven (7) days notice
prior to exercise of said power of attorney. In addition, if so
requested by the Mortgagee or by any purchaser, Mortgagor shall
ratify and confirm any such sale by executing and delivering to
the Mortgagee or to such purchaser or purchasers all such proper
deeds, conveyances, assignments, instruments of transfer and
releases as may be designated in any such request.
6.6 This Mortgage is upon the STATUTORY CONDITIONS and
upon the further condition that all covenants and agreements of
the Mortgagor contained herein, and in the Note, shall be kept
and fully performed, for any breach of which the Mortgagee shall
have the STATUTORY POWER OF SALE.
6.7 Acceptance by the Mortgagee of any payment in an
amount less than the amount then due on said debt shall be deemed
an acceptance on account only and the failure to pay the entire
amount then due shall be and continue to be an Event of Default;
at any time thereafter and until the entire amount then due on
said debt has been paid, the Mortgagee shall be entitled to
exercise all rights conferred upon it in this instrument upon the
occurrence of an Event of Default.
6.8 No remedy herein conferred upon the Mortgagee
shall be exclusive of any other remedy herein or by law provided
or permitted, but such shall be cumulative and in addition to
every other remedy given herein or now or hereafter existing at
law.
6.9 The exercise of any option in this instrument by
the Mortgagee shall not be deemed a waiver of its rights to
exercise any other option; and the filing of a suit for
collection of the Note and foreclosure of this instrument as a
mortgage or for any other default hereunder shall not preclude
sale pursuant to the power of sale contained in this instrument
after a dismissal of the suit. No provision hereof shall be
deemed to release Mortgagor's obligation to pay the interest,
principal and other sums and charges secured hereby until such
time as all thereof have been paid to the Mortgagee in full.
6.10 If foreclosure should be commenced by the
Mortgagee, at any time before the sale of the Mortgaged Property,
the Mortgagee may abandon such sale and may at any time or times
thereafter again commence such sale, or the Mortgagee may xxx for
collection of the Note and foreclosure of this instrument in the
courts; if the Mortgagee should xxx for such collection and/or
foreclosure, it may at any time before entry of final judgment
dismiss the suit and sell the Mortgaged Property pursuant to the
power of sale contained herein.
6.11 At any foreclosure sale, whether pursuant to
the power of sale contained in this instrument, or pursuant to
the judgment of a court, all of the Mortgaged Property at the
option of the Mortgagee and without notice to Mortgagor, may be
sold as a whole and it shall not be necessary to have said
personal property present at the place of sale. The recitals in
the xxxx of sale to any purchaser at such sale shall be full and
conclusive evidence of the truth of the matters stated therein,
and all prerequisites to such sale shall be presumed to have been
performed and such sale and xxxx of sale shall be conclusive
against Mortgagor.
6.12 Mortgagor agrees, to the extent that it may
lawfully so agree, that if an Event of Default shall occur
hereunder, neither Mortgagor nor anyone claiming through or under
Mortgagor shall or will set up, seek or claim to take advantage
of any appraisement, valuation, stay, extension, redemption,
moratorium or marshaling laws now or hereafter in force in the
locality where the property subject to the lien of this Mortgage
may be situated, in order to prevent or hinder the enforcement or
foreclosure of this Mortgage, or the absolute sale of the
Mortgaged Property, or the final or absolute putting into
possession thereof, immediately after such sale, of the purchaser
thereof, and Mortgagor for itself and its successors and assigns
hereby waives, to the full extent that it may lawfully do so, the
benefit of all such laws and any and all right to have the
estates comprising the security intended to be created hereby
marshaled upon any foreclosure of the lien hereof and agrees that
the Mortgaged Property may be sold as an entirety.
6.13 Mortgagor, to the extent that it may lawfully
do so, hereby submits to the jurisdiction of the courts of the
State of New Hampshire and the United States District Court for
the District of New Hampshire, as well as to the jurisdiction of
all courts from which an appeal may be taken from the aforesaid
courts, for the purpose of any suit, action or other proceeding
arising out of the breach by Mortgagor of any of its obligations
under or with respect to the Note or this Mortgage, and expressly
waives any and all objections it may have as to venue in any of
such courts.
ARTICLE VII - Indemnity Regarding Hazardous Materials.
7.1 As used in this Article, the term "Hazardous
Materials" shall mean any substance, water or material which has
been determined by any state, federal or local government
authority to be capable of posing a risk of injury to health,
safety and property, including, but not limited to, all of those
materials, wastes and substances designated as hazardous or toxic
by the U.S. Environmental Protection Agency, the U.S.
Department of Labor, the U.S. Department of Transportation,
and/or any other governmental agency, federal, state, or local,
now or hereafter authorized to regulate materials and substances
in the environment (collectively "Governmental Authority(ies)").
7.2 The parties acknowledge that certain Hazardous
Materials could be present in the soil at the Premises.
Mortgagor acknowledges that the Hazardous Material, if any,
existed in the soil at the Premises during Mortgagor's ownership
of the Premises and that Mortgagee is not in any manner
responsible for the presence of the Hazardous Material at the
Premises. Mortgagor hereby covenants that (i) it did not
release, nor did it cause the release of, the Hazardous Material,
if any, acknowledged in this Paragraph 7.2, and (ii) it will not
release or cause the release of Hazardous Material in the future,
on or about the Mortgaged Property.
7.3 Mortgagor agrees to take responsibility for any
remedial action required by Government Authorities having
jurisdiction regarding the Hazardous Material, if any,
acknowledged in Paragraph 7.2 above, or any other Hazardous
Material, whether now known or hereafter discovered at any time
prior to the time that the Mortgagor's obligations under this
Mortgage have been completely performed and satisfied. Mortgagor
shall pay all costs in connection with any such investigation or
remedial activity including, without limitation, all
installation, operation, maintenance, testing, and monitoring
costs, all power and utility costs and any and all pumping taxes
or fees that may be applicable to Mortgagor's activities.
Mortgagor shall perform all such work in a good, safe and
workmanlike manner, in compliance with all laws and regulations
thereto, and shall diligently pursue any required investigation
and remedial activity until Mortgagor is allowed to terminate
these activities by those Government Authorities having
jurisdiction.
7.4 To the extent allowed by law, Mortgagor shall
retain the exclusive right to negotiate with and to fulfill any
requirement or claim made by any Government Authority or third
party related to the presence of Hazardous Materials, if any,
acknowledged in Paragraph 7.2 arising from Mortgagor's
activities, or any other Hazardous Material, including the right
to settle or contest such requirement or third party claim.
Mortgagor shall conduct any testing, monitoring, reporting and
remedial activities in connection with the Premises in a good,
safe and workmanlike manner, compliance with all laws and
regulations applicable thereto. Mortgagor shall promptly provide
Mortgagee with copies of any testing results and reports that are
generated in connection with Mortgagor's activities and that are
submitted to any Government Authority.
7.5 Mortgagor shall indemnify, hold harmless, and
defend Mortgagee, its officers, directors, employees and agents
(collectively "Indemnitees") against all claims, demands, losses,
liabilities, costs and expenses, including attorneys' fees,
(collectively "Liabilities") imposed upon or accruing against
Indemnitees as actual and direct costs of investigatory or
remedial action required by any Government Authority having
jurisdiction or as damages to third persons for personal injury
or property damage arising from the existence of Hazardous
Material, if any, at the Premises acknowledged in Paragraph 7.2,
or any other Hazardous Material. Such Liabilities shall include,
without limitation: (i) injury or death to any person, (ii)
damage to or loss of use of any other property, (iii) the cost of
any demolition and rebuilding of the Improvements on the
Premises, repair, or remediation and the preparation of any
closure or other activity required by any Governmental Authority,
(iv) any lawsuit brought or threatened, good faith settlement
reached, or governmental order relating to the presence,
disposal, release or threatened release of any Hazardous
Material, if any, acknowledged in Paragraph 7.2 above, or any
other Hazardous Material, on, from or under the Premises and (v)
the imposition of any liens on the Premises arising from
Mortgagor's activities on the Premises or from the existence of
Hazardous Material, if any, acknowledged in Paragraph 7.2 above,
or any other Hazardous Material, upon the Premises.
7.6 Mortgagor shall use its best efforts (including
payment of money) not to cause or suffer any lien to be recorded
against the Premises as a consequence of, or in any way related
to, the presence, remediation or disposal of Hazardous Material
in or about the Premises, including any mechanics' liens and any
so-called state, federal or local "superfund" lien relating to
such matters.
ARTICLE VIII - Miscellaneous Provisions.
8.1 Without affecting the liability of Mortgagor, or
any other person (except any person expressly released in
writing), for payment of said debt or for the performance of any
obligations set forth in this Mortgage, and without affecting the
lien or other rights of the Mortgagee with respect to any
property or other security not expressly released in writing, the
Mortgagee at any time, and from time to time, either before or
after maturity of the Note, and without notice or consent, may:
8.1.1 Release any person liable for payment of
said debt, or for the performance of any obligation;
8.1.2 Make any agreement extending the time,
or otherwise altering the terms of payment of said debt, or
modifying or waiving any obligation, or subordinating, modifying
or otherwise dealing with the lien securing payment of the Note;
8.1.3 Exercise or refrain from exercising or
waive any right the Mortgagee may have;
8.1.4 Accept additional security of any kind;
and
8.1.5 Release or otherwise deal with any
property, real or personal, securing said debt, including all or
any part of the Mortgaged Property.
8.2 In the event that Mortgagor conveys its interest
in the Mortgaged Property to parties not appearing in this
instrument (without implying any right of Mortgagor to do so
without Mortgagee's consent) the Mortgagee may, without notice to
Mortgagor, deal with such successor or successors in interest
with reference to this Mortgage and the Note secured hereby,
either by way of forbearance on the part of the Mortgagee or
extension of the time of payment of the debt or any sum hereby
secured, without in any way modifying or affecting the conveyance
under this Mortgage or the original liability of the Mortgagor or
any other party on the Note secured hereby, either in whole or in
part.
8.3 All payments on the debt and advancements, if any,
hereby secured shall be applied, first to advancements, if any,
in the order of maturity, and second, to the payment of the
indebtedness evidenced by the Note hereinabove described and
secured hereby in such manner as Mortgagee shall deem
appropriate. Proceeds from foreclosure sales and insurance
proceeds or condemnation awards shall be applied in the same
manner after payment of all costs and expenses of sales,
including attorney's and auctioneer's fees.
8.4 At any time and from time to time until payment of
the indebtedness and upon request of the Mortgagee, Mortgagor
will promptly execute and deliver to the Mortgagee such
additional instruments as may be reasonably required to further
evidence the lien of the Mortgage and further to protect the
security position of the Mortgagee with respect to the property
subject to this Mortgage.
8.5 In the event of any sale of the Mortgaged Property
under the provisions hereof, Mortgagor shall forthwith surrender
possession thereof to the purchaser. Upon failure to do so
Mortgagor shall thereupon be a tenant at sufferance of such
purchaser, and upon its failure to surrender possession of the
Mortgaged Property upon demand, such purchaser, his heirs or
assigns, shall be entitled to institute and maintain an
appropriate action for possession of the Mortgaged Property.
8.6 Upon payment in full of the indebtedness secured
hereby, this instrument shall become null and void and shall be
released by the Mortgagee at Mortgagor's expense.
8.7 In case any one or more of the provisions
contained in the Note or in this Mortgage shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provision hereof or thereof, but each shall be construed as
if such invalid, illegal or unenforceable provision had never
been included.
8.8 All notices, requests, demands, consents or other
communications given hereunder or in connection herewith (for the
purposes of this Section collectively called "Notices") shall be
in writing and shall be sent by certified mail, return receipt
requested, postage prepaid, addressed to the party to receive
such Notice at its address first set forth above. Either party
may, by Notice given as aforesaid, change its address for all
subsequent Notices. Notices shall be deemed given when mailed as
aforesaid. All Notices by or on behalf of the Mortgagee herein
named shall be deemed sufficient if signed by any one of its
directors, officers or counsel and if otherwise given or made in
compliance with this Section.
8.9 The Mortgagee and its agents may enter and inspect
the Mortgaged Property during usual business hours upon not less
than 24 hours notice to Mortgagee.
8.10 It is the intent of the parties hereto that
this instrument shall constitute a Security Agreement within the
meaning of the Uniform Commercial Code as then in effect (the
"Uniform Commercial Code") with respect to all fixtures and
personal property above referred to and all replacements thereof,
substitutions therefor or additions thereto (said property being
sometimes hereinafter referred to as the "Collateral"), and that
a security interest shall attach thereto for the benefit of the
Mortgagee to secure the indebtedness evidenced by the Note and
secured by this Mortgage, and all other sums and charges which
may become due hereunder or thereunder. Mortgagor hereby
authorizes the Mortgagee to file financing and continuation
statements with respect to the Collateral without the signature
of Mortgagor whenever lawful. In the event of default under this
Mortgage and to the extent permitted by law, the Mortgagee, shall
have the option of proceeding as to both real and personal
property in accordance with its rights and remedies in respect of
the real property, in which event the default provisions of the
Uniform Commercial Code shall not apply. The parties agree that
in the event the Mortgagee elects to proceed with respect to the
Collateral separately from the real property, five (5) days'
notice of the sale of the Collateral shall be reasonable notice.
Mortgagor agrees that, without the written consent of the
Mortgagee, Mortgagor will not remove or permit to be removed from
the Premises or the Improvements thereon any of the fixtures
unless the same is immediately replaced with unencumbered
fixtures, of a quality and value equal or superior to those which
they replace. All such replacements, renewals and additions
shall become and be immediately subject to the security interest
of this Mortgage and this agreement and be covered thereby.
Mortgagor shall, from time to time, on request of the Mortgagee,
deliver to the Mortgagee an inventory of the Collateral in
reasonable detail, including an itemization of all items leased
to Mortgagor or subject to conditional xxxx of sale, security
agreement or other title retention agreement.
8.11 Mortgagor, to the extent reasonably within
its control, will maintain, preserve and renew all rights of way,
easements, grants, privileges, licenses and franchises reasonably
necessary for the use of the Mortgaged Property from time to time
and will not, without the prior consent of the Mortgagee
initiate, join in or consent to any private restrictive covenant
or other public or private restriction as to the use of the
Mortgaged Property. Mortgagor shall, however, comply with all
restrictive covenants which may at any time affect the Mortgaged
Property, zoning ordinances and other public or private
restrictions as to the use of the Mortgaged Property.
8.12 If at any time any governmental body shall
impose a stamp, documentary or other similar tax on the Note,
this Mortgage, the debt secured hereby or the income generated
therefrom, or any modification, amendment, extension or
consolidation of either thereof, Mortgagor will pay the same
within ten (10) days after demand by the Mortgagee.
8.13 This instrument shall inure to and bind the
successors and assigns of the parties hereto, and shall be so
construed that whenever applicable with reference to any of the
parties hereto, the use of the singular number shall include the
plural number, the use of the plural number shall include the
singular number, the use of the masculine gender shall include
the feminine gender, and shall likewise be so construed as
applicable to and including a corporation or corporations or any
other entity that may be a part or parties hereto. This Mortgage
may not be waived, changed or discharged orally, but only by an
agreement in writing signed by the party against whom any waiver,
change or discharge is sought.
8.14 It is understood and agreed that the
validity, construction and interpretation of this Mortgage will
be in accordance with the laws of the State of New Hampshire.
IN WITNESS WHEREOF, the Mortgagee and the Mortgagor have
each duly caused this Agreement to be executed, as of the day and
year indicated above.
Micronetics,Inc.
formerly Micronetics Wireless,Inc.
By:/s/Xxxxx Xxxxxxx
----------------------
Xxxxx Xxxxxxx
Its: President
Banknorth, N.A.
By: Xxxxxxx X. Xxx
-------------------------
Xxxxxxx X. Xxx
Its: Senior Vice President
STATE OF NEW HAMPSHIRE
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 13th day
of February, 2004, by Xxxxx Xxxxxxx, being President of
Micronetics, Inc., formerly Micronetics Wireless, Inc., a
Delaware corporation, on behalf of the corporation.
/s/Xxxxxxx Xxxxxxxxx
----------------------------------
Notary Public/Justice of the Peace
My Commission Expires: April 16, 0000
XXXXX XX XXX XXXXXXXXX
XXXXXX XX XXXXXXXXXXXX
The foregoing instrument was acknowledged before me this 13th day
of February, 2004, by Xxxxxxx X. Xxx, a Senior Vice President of
Banknorth, N.A., a national banking association, on behalf of the
bank.
/s/Xxxxxxx Xxxxxxxxx
---------------------------------
Notary Public/Justice of the Peace
My Commission Expires: April 16, 2008
