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OMB APPROVAL
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OMB Number: 3235-0145
UNITED STATES Expires October 31, 1994
SECURITIES AND EXCHANGE COMMISSION Estimated average burden
Washington, D.C. 20549 hours per form .... 14.90
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SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. THREE)*
BIRD CORPORATION
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(Name of Issuer)
Common Stock, $1.00 par value
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(Title of Class of Securities)
090763-103
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(CUSIP Number)
Antonio J. Lorusso, Jr., President, S.M. Lorusso & Sons, Inc.
P.O. Box 230, Walpole, MA 02081, (508) 668-2600
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(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
November 9, 1995
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(Date of Event which Requires Filing of this Statement)
If the filing person his previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement / /, (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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CUSIP No. 090763-103 PAGE 2 OF 6 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
S. M. Lorusso & Sons, Inc.
Antonio J. Lorusso, Jr.
James B. Lorusso
Samuel A. Lorusso
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /X/
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
BK and PF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS 1S REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
N/A
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6 CITIZENSHIP 0R PLACE OF ORGANIZATION
USA; Massachusetts (S. M. Lorusso & Sons, Inc.)
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7 SOLE VOTING POWER
NUMBER OF 248,621
SHARES ----------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 73,500
REPORTING ----------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
248,621
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10 SHARED DISPOSITIVE POWER
73,500
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
322,121
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/ /
N/A
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.71%
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14 TYPE OF REPORTING PERSON*
CO; IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
2 of 7
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Page 3 of 6
SCHEDULE 13D
Item 1. Security and Issuer
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This statement relates to the Common Stock, $1.00 par value, class of
equity securities issued by Bird Corporation, a Massachusetts
corporation with a principal place of business and principal
executive offices at 1077 Pleasant Street, Norwood, Massachusetts
02062.
Item 2. Identity and Background
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(a) The person filing this statement is S. M. Lorusso & Sons, Inc., a
duly organized and existing Massachusetts corporation having a
principal place of business and its principal office at 331 West
Street, Walpole, Massachusetts. Other principal places of
business are located in the West Roxbury district of Boston,
Wrentham, Braintree, Weymouth, and Barnstable, all in
Massachusetts. Its principal business is quarrying and processing of
sand, gravel and stone, and the sale of aggregates and other related
products primarily to the construction industry.
(b) Antonio J. Lorusso, Jr., is an officer, director and shareholder of
S. M. Lorusso & Sons, Inc. He is a United States citizen
residing at 1260 Old North Street, Walpole, Massachusetts.
(c) James B. Lorusso is an officer, director and shareholder of S. M.
Lorusso & Sons, Inc. He is a United States citizen residing at
386 Hancock Street, Wrentham, Massachusetts.
(d) Samuel A. Lorusso is an officer, director and shareholder of S. M.
Lorusso & Sons, Inc. He is a United States citizen residing at
45 Vineyard Street, East Falmouth, Massachusetts.
(e) During the last five years, none of the reporting persons named
herein has been convicted in a criminal proceeding.
(f) During the last five years, none of the reporting persons named
herein was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and, as a consequence,
is not subject to any judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activity subject
to, federal or state securities laws, or any other finding of any
violation with respect to such laws.
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Page 4 of 6
Item 3. Source and Amount of Funds or Other Consideration
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The sources of the funds used to acquire the additional 20,000
shares of the equity securities of the Issuer reported in this
Amendment No. 3 are all personal funds. Specifically:
a. Antonio J. Lorusso, Jr., acquired 20,000 shares for his joint
account with his spouse Barbara H. Lorusso from his personal
funds.
Item 4. Purpose of Transaction
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The purpose of the acquisition of securities of the Issuer is for
investment. The reporting persons have no other plans or proposals
which relate to or would result in any of the events described in
the Schedule 13D Special Instructions for Item 4(b) through and
including (j).
Item 5. Interest in Securities of the Issuer
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(a) S. M. Lorusso & Sons, Inc., is the beneficial owner of 227,621 shares
of the Common Stock, $1.00 par value, of the Issuer. Antonio J.
Lorusso, Jr., is, jointly with his spouse and children hereinafter
identified, the beneficial owner of an additional 72,000 shares of
the Common Stock, $1.00 par value, of the Issuer. He is also the
beneficial owner of an additional 20,000 shares of said Common
Stock allocated to an Individual Retirement Rollover Account. James
B. Lorusso is the beneficial owner of 1,000 shares of said Common
Stock. Samuel A. Lorusso is, jointly with his spouse, the beneficial
owner of 1,500 shares of said Common Stock. Therefore, the total
number of shares of said Common Stock owned by all reporting persons
in this group is 322,121 which represents approximately 7.71
percent of this class of securities.
(b) S. M. Lorusso & Sons, Inc., has sole voting and dispositive power
over 227,621 shares; Antonio J. Lorusso, Jr., has sole voting and
dispositive power over 20,000 shares allocated to his Individual
Retirement Rollover Account; Antonio J. Lorusso, Jr., has shared
voting and dispositive power with his spouse, Barbara H. Lorusso,
over 70,000 shares; Antonio J. Lorusso, Jr., has shared voting and
dispositive power with his son, Antonio J. Lorusso, III, over 1,000
shares; Antonio J. Lorusso, Jr., has shared voting
<PAGE> 5
Page 5 of 6
and dispositive power with his daughter, Andrea Lorusso, over
1,000 shares, and James B. Lorusso has sole voting and dispositive
power over 1,000 shares of said Common Stock; Samuel A. Lorusso has
shared voting and dispositive power with his spouse Judith C. Lorusso
over 1,500 shares.
(c) The following transactions in the Common Stock of the Issuer have
been effected during the past 60 days:
1. On October 25, 1995, Antonio J. Lorusso, Jr., acquired 5,300
shares of the Issuer's Common Stock for his Individual
Retirement Rollover Account at a price of $6.50 per share.
2. On October 25, 1995, Antonio J. Lorusso, Jr., and Barbara H.
Lorusso acquired 3,700 shares of the Issuer's Common Stock
at a price of $6.50 and 8,500 shares at a price of $6.44 per
share.
3. On October 25, 1995, Antonio J. Lorusso, Jr. and Antonio J.
Lorusso, III, acquired 500 shares of the Issuer's Common
Stock at a price of $6.50 per share.
4. On October 25, 1995, Antonio J. Lorusso, Jr. and Andrea J.
Lorusso acquired 500 shares of the Issuer's Common Stock at
a price of $6.50 per share.
5. On October 26, 1995, Samuel A. Lorusso and Judith C.
Lorusso acquired 1,500 shares of the Issuer's Common Stock
at a price of $6.44 per share.
6. On November 9, 1995, Antonio J. Lorusso, Jr., and Barbara
H. Lorusso acquired 3,000 shares of the Issuer's Common Stock
at a price of $5.87 per share.
7. On November 28, 1995, Antonio J. Lorusso, Jr., and Barbara
H. Lorusso acquired 7,000 shares of the Issuer's Common Stock
at a price of $5.87 per share.
8. On December 7, 1995, Antonio J. Lorusso, Jr., and Barbara
H. Lorusso acquired 10,000 shares of the Issuer's Common Stock
at a price of $5.70 per share.
All of the above-described transactions were effected through
stockbrokers for S. M. Lorusso & Sons, Inc.
(d) With the exception of the designated beneficiary or beneficiaries of
the Antonio J. Lorusso, Jr., Individual Retirement Rollover Account,
no other persons have the right to receive or the power to direct
the receipt of dividends from, or the proceeds from the sale of, such
securities.
(e) Not applicable.
Item 6 Contracts, Arrangements, Understandings or Relationships with
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Respect to Securities of the Issuer
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There are no contracts, arrangements, understandings or relationships
(legal or otherwise) among the reporting persons identified in
Item 2 and between such persons and any person with respect to any
securities of the Issuer.
Item 7. Material to be Filed as Exhibits
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Copies of all written agreements and other documents concerning the
borrowing of funds to finance the acquisition of the securities as
disclosed
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Page 6 of 6
in Item 3 are attached hereto as exhibits and incorporated herein by
reference. There are no such documents with respect to Items 4 and 6.
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
December 14, 1995
----------------------------------
Date
S. M. Lorusso & Sons, Inc.
by /s/ Antonio J. Lorusso, Jr.
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Antonio J. Lorusso, Jr., President
/s/ Antonio J. Lorusso, Jr.
----------------------------------
Antonio J. Lorusso, Jr.
/s/ James B. Lorusso
----------------------------------
James B. Lorusso
/s/ Samuel A. Lorusso
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Samuel A. Lorusso
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REVOLVING LINE OF CREDIT
[LOGO]
FLEET BANK COMMERCIAL PROMISSORY NOTE
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Boston, Massachusetts July 27, 1995
FOR VALUE RECEIVED, I, the undersigned, promise to pay to the order of
Fleet Bank of Massachusetts, National Association (with any subsequent holder
referred to in this note as "you") at any of your offices, the sum of TWO
MILLION AND 00/100 ********************** DOLLARS ($2,000,000.00) with interest
in accordance with the provisions below which are marked.
INTEREST RATE
I will pay interest on the unpaid principal balance of this Note as follows, but
in no event will interest exceed the maximum rate permitted by law:
/X/ FLOATING RATE. At the aggregate of the Bank's Prime Rate as the Bank
announces it from time to time, plus ZERO (.00%) percent per annum. Changes
in the Bank's Prime Rate as the Bank announces it from time to time are to
take effect, for the purposes of the determination of interest on this Note,
when made effective generally to loans by the Bank.
/ / FIXED RATE. At the rate _________ percent per annum.
/ / DISCOUNT. Interest to maturity has been deducted from the proceeds of
this Note. Interest at the rate of ______________ percent per annum shall be
paid on any amount not paid when due hereunder until that amount and any
such interest are so paid.
/ /
INTEREST PAYMENTS
I will pay interest at the above rate as follows:
/X/ PERIODICALLY. Monthly/Quarterly/_________, in arrears, with the first
such payment due on the FIRST day of SEPTEMBER, 1995 and each subsequent
payment due on the corresponding day of each calendar month/calendar
quarter/ _______________ thereafter.
/ / AT MATURITY. At the maturity of this Note.
/ / INTEREST INCLUDED IN REPAYMENTS. Interest is included in the payment(s)
to be made pursuant to the Repayment Provisions. Below.
/ /
REPAYMENT PROVISIONS
In addition to any interest payments to be made as indicated above, I will pay
you the amount stated above as follows:
/X/ ON DEMAND. On demand by you.
/ / PAYMENTS TO BE MADE UNTIL DEMAND. On demand by you, with payments of
$___________ each to be made monthly unless and until such demand is made.
The first such payments shall be due on the ______day of _______, 19____ (If
you have not made demand before then) and unless and until you make demand,
each subsequent payment shall be due on the corresponding day of each month
thereafter.
/ / TIME. ____________days after the date hereof on ________________, 19____
/ / INSTALLMENTS. In ______________ consecutive monthly installments, of
which each but the last shall be $___________ and the final of which shall
be equal to the then unpaid principal balance of this Note plus all accrued
and unpaid interest thereon. The first such monthly installment shall be due
on the ________ day of ___________, 19___ and each subsequent installment
shall be due on the corresponding day of each month thereafter, with the
balance of all principal and interest due on ______________________ 19____.
/ /
PREPAYMENT. I will be entitled to prepay this note as follows:
LATE CHARGES. If the entire amount of any required principal and/or interest is
not paid in full within ten (10) days after the same is due, the Borrower shall
pay to the Bank a late fee equal to five percent (5%) of the required payment
provided that such late fee shall be reduced to three percent (3%) of any
required principal and interest payment that is not paid within fifteen (15)
days of the date it is due if this Agreement is secured by a mortgage on an
owner-occupied residence, 1-4 units.
APPLICATION OF PAYMENTS. Any payments you receive from me will be applied first
to any accrued and unpaid interest and then to the unpaid principal balance of
this Note. If any payment under this Note becomes due and payable on the day
upon which your office is legally closed to business, the due date shall be
extended to the next succeeding business day and interest shall be payable
during such extension at the rate stated above.
EACH BORROWER AND ENDORSER LIABLE. If more than one borrower has signed below,
each of us had made all of the promises contained in this Note and we are
jointly and severally liable for all obligations on this Note. If one or more
endorser has signed below, each endorser agrees to all terms of this Note,
including without limitations the provisions relating to Security.
This Note is subject to the terms, provisions and conditions set forth
on the reverse side of this page. Signed as an instrument under seal on the date
stated above.
BORROWER(S)
S. M. LORUSSO & SONS, INC.
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Name of Borrower
By: /s/ Antonio J. Lorusso, Jr.
----------------------------------------
Name Antonio J. Lorusso, Jr., President
By:
----------------------------------------
Name Title
Address:
-----------------------------------
-----------------------------------
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Name of Borrower
By:
----------------------------------------
Name Title
Address:
-----------------------------------
-----------------------------------
ENDORSER(S):
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<PAGE> 2
Note and all unpaid accrued interest hereunder shall become immediately due and
payable at your option and without notice or demand, in addition, at your option
and without notice or demand, the occurrence of any such Event or Default shall
also constitute a default under all agreements between you and me as well as of
all instruments and papers that I have given to you. Events of Default are:
(a) my failure to pay when due (or upon demand, if payable one demand)
any amount due on this Note or any other amount I owe you; (b) my failure
promptly punctually and faithfully to perform any other obligation or discharge
any liability or mine to you; (c) your determination that any representation or
warranty I made to you in any document, instrument, agreement or paper was not
true or accurate when given; (d) the occurrence of any event of default under
any agreement between you and me or under any such other agreement, instrument
or paper; (e) any act by, against, or relating to me or my 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 my property, the granting of any trust
mortgage or execution of an assignment for me; my written admission of my
inability to pay my debts pursuant to the Federal Bankruptcy Code or pursuant to
any other insolvency statute or procedure; my offering by or entering into any
composition, extension, or any other arrangement seeking relief or extension for
my debts or any other judicial or non-judicial proceeding or agreement by,
against, or including me which seeks to intends to accomplish a reorganization
or arrangement with creditors; (f) the imposition of any lien upon my assets of
the entry of any judgment against me, which lien is not discharged, or judgment
appealed from or satisfied, within fifteen (15) days after its imposition or
entry; (g) any material adverse change in my assets, liabilities, property,
business or condition, financial or otherwise; (h) the occurrence of any event
or circumstance with respect to me such that you damn yourself to be insecure;
(I) my death, termination or existence, dissolution, winding up or liquidation;
(j) the occurrence of any of the foregoing Events of Default with respect to any
guarantor or endorser to you of my liabilities to you, as if such guarantor or
endorser were a borrower who signed this Note.
LOAN DOCUMENTS: SECURITY. The following loan documents and security
instruments are incorporated herein by reference with the same force and
effect as if set forth in full:
Unsecured
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The execution, endorsement or guaranty of this Note constitutes a confirmation
be each person that any security interest listed above which was given to you
before the date hereof shall continue in effect as security for this Note. In
addition to the foregoing, and all of the deposits or other sums at any time
credited by or due from you to me or to any endorser or
guarantor of this Note. and any cash, securities, instruments, or
other property of mine or of such endorser or guarantor in your
possession, whether for safekeeping. or otherwise, shall at all
times constitute security for this Note and for any and all of my
liabilities to you including, without limitation, the liability
evidenced hereby, and may be applied or set off by you against such
liabilities at any time whether or not such liabilities are then due and whether
or not other collateral is available to you.
COSTS AND EXPENSES, I and each endorser and guarantor of
this Note, will pay all costs and expenses, including, without limitation,
reasonable attorneys' fee and all expenses and disbursements of counsel,
in connection with the protection or enforcement of any of your
rights against me or any such endorser and guarantor and against any collateral
given to you to secure this Note or any other of my liabilities or of
such endorser and guarantor to you (whether or not suit is instituted by or
against you).
ASSIGNABILTY BY YOU. You may assign and transfer this Note to any
person, firm or corporation and deliver to the assignee any collateral or
security interest you hold in connection with this Note. In the event
of such assignment, you will have no further responsibility or
liability with respect to such collateral or security interest, and the
terms of this Note and any related documents shall inure to the
benefit of your assignee and its successors. This Note shall be
binding upon me and each endorser and guarantor hereof and upon my
and their respective heirs, successors, assignees, and representatives, and
shall inure to the benefit of you and your successors and endorsers.
SEVERABILITY. If any provision of this Note is deemed
by any court having jurisdiction thereof to be invalid
or unenforceable, the other provisions of the Note shall remain
in full force and affect. If any provision of this Note is deemed
by any such court to be unenforceable because such provision is
too broad in scope such provision shall be construed to be limited in
scope to the extent such court shall deem necessary to make it
enforceable. If any provision is deemed inapplicable by any such court
to any person or circumstances it shall nevertheless be
construed to apply to all other persons and circumstances.
WAIVER, No delay or omission by you in exercising or
enforcing any of your powers, rights, privileges, remedies, or
discretion hereunder shall operate as a waiver hereof on that occasion
nor on any other occasion. No waiver of any default hereunder
shall operate as a waiver of any other default hereunder, nor as a
continuing waiver.
ENDORSEMENT. Each endorser, jointly and severally if more than one,
unconditionally guarantees prompt payment when due, by acceleration otherwise of
this Note, regardless of its genuineness, validity, regularity or enforceability
and waives any right to require you to proceed against the Borrower or any
collateral which you might have been granted to secure any endorser's
liabilities under this Note.
PRESENTMENT, EXTENSION. I and each endorser and guarantor of this Note
respectively waive presentment, demand, notices, and protest, and also waive any
delay on the part of the holder hereof. Each assents to any extension or other
indulgence (including, without limitation, the release of any other party to
this Note or the release or substitution of collateral) which you permit me or
any such endorser or guarantor with respect to this Note or any collateral given
to secure this Note and any other liability or mine or such endorser or
guarantor to you.
MISCELLANEOUS. My liabilities and those of any endorser or guarantor of
this Note are joint and several; provided, however, your release of me of any
endorser or guarantor shall not release any other person obligated on account of
this Note. Each reference in this Note to me, any endorser and any guarantor, is
to such person individually and also to all such person jointly. No person
obligated on account of this Note may seek contribution from any other person
also obligated unless and until all liabilities to you of this person from whom
contribution is sought to have been satisfied in full.
I and each endorser and guarantor of this Note authorize you to
complete this Note if delivered in incomplete form, in any respect.
This Note in delivered to you at one of your offices In
Massachusetts and shall be governed by the laws of the Commonwealth of
Massachusetts, and each endorser and guarantor of this Note submit 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 to you or their respective liabilities to you or
their respective relationships with you,
<PAGE> 3
EVENTS OF DEFAULT. Upon the occurrence of any one or more of the
following Events of Default, the entire unpaid principle balance of the Note
and all unpaid accrued interest hereunder shall become immediately due and
payable at your option and without notice or demand. In addition, at your option
and without notice or demand, the occurrence of any such Event of Default shall
also constitute a default under all agreements between you and me as well as of
all instruments and papers that I have given to you. Events of Default are:
(a) my failure to pay when due (or upon demand, if payable one demand) any
amount due on this Note or any other amount I owe you; (b) my failure promptly
punctually and faithfully to perform any other obligation or discharge any
liability of mine to you; (c) your determination that any representation or
warranty I made to you in any document, instrument, agreement or paper was not
true or accurate when given; (d) the occurrence of any event of default under
any agreement between you and me or under any instrument or paper I have given
to you notwithstanding that you may not have exercised your rights upon default
under any such other agreement, instrument or paper; (e) any act by, against,
or relating to me or my 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 my property, the granting of any trust mortgage or execution of an
assignment for the benefit of my creditors or the occurrence of any other
voluntary or involuntary liquidation or extension of debt agreement for me; my
written admission of my inability to pay my debts as they mature; the filing of
any complaint, application, or petition by or against me initiating any matter
in which I am or may be granted any relief from my debts pursuant to the
Federal Bankruptcy Code or pursuant to any other insolvency statute or
procedure; my offering by or entering into any composition, extension, or any
other arrangement seeking relief or extension for my debts or any other
judicial or non-judicial proceeding or agreement by, against, or including me
which seeks or intends to accomplish a reorganization or arrangement with
creditors; (f) the imposition of any lien upon my assets or the entry of any
judgment against me, which lien is not discharged, or judgment appealed from or
satisfied, within fifteen (15) days after its imposition or entry; (g) any
material adverse change in my assets, liabilities, property, business or
condition, financial or otherwise; (h) the occurrence of any event or
circumstance with respect to me such that you deem yourself to be insecure; (i)
my death, termination of existence, dissolution, winding up or liquidation; (j)
the occurrence of any of the foregoing Events of Default with respect to any
guarantor or endorser to you of my liabilities to you, as if such guarantor or
endorser were a borrower who signed this Note.
LOAN DOCUMENTS: SECURITY. The following loan documents and security
instruments are incorporated herein by reference with the same force and
effect as if set forth in full:------------------------------------------------
Unsecured
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
The execution, endorsement or guaranty of this Note constitutes a confirmation
be each person that any security interest listed above which was given to you
before the date hereof shall continue in effect as security for this Note. In
addition to the foregoing, any and all of the deposits or other sums at any
time credited by or due from you to me or to any endorser or guarantor of this
Note, and any cash, securities, instruments, or other property of mine or of
such endorser or guarantor in your possession, whether for safekeeping, or
otherwise, shall at all times constitute security for this Note and for any
and all of my liabilities to you including, without limitation, the liability
evidenced hereby, and may be applied or set off by you against such liabilities
at any time whether or not such liabilities are then due and whether or not
other collateral is available to you.
COSTS AND EXPENSES. I and each endorser and guarantor of this Note,
will pay all costs and expenses, including, without limitation, reasonable
attorneys' fee and all expenses and disbursements of counsel, in connection
with the protection or enforcement of any of your rights against me or any such
endorser and guarantor and against any collateral given to you to secure this
Note or any other of my liabilities or of such endorser and guarantor to you
(whether or not suit is instituted by or against you).
ASSIGNABILITY BY YOU. You may assign and transfer this Note to any
person, firm or corporation and deliver to the assignee any collateral or
security interest you hold in connection with this Note. In the event of such
assignment, you will have no further responsibility or liability with respect
to such collateral or security interest, and the terms of this Note and any
related documents shall inure to the benefit of your assignee and its
successors. This Note shall be binding upon me and each endorser and guarantor
hereof and upon my and their respective heirs, successors, assigns, and
representatives, and shall inure to the benefit of you and your successors and
endorsers.
SEVERABILITY. If any provision of this Note is deemed by any court
having jurisdiction thereof to be invalid or unenforceable, the other
provisions of the Note shall remain in full force and effect. If any provision
of this Note is deemed by any such court to be unenforceable because such
provision is too broad in scope such provision shall be construed to be
limited in scope to the extent such court shall deem necessary to make it
enforceable. If any provision is deemed inapplicable by any such court to any
person or circumstances, it shall nevertheless be construed to apply to all
other persons and circumstances.
WAIVER. No delay or omission by you in exercising or enforcing any of
your powers, rights, privileges, remedies, or discretion hereunder shall
operate as a waiver hereof on that occasion nor on any other occasion. No
waiver of any default hereunder shall operate as a waiver of any other default
hereunder, nor as a continuing waiver.
ENDORSEMENT. Each endorser, jointly and severally if more than one,
unconditionally guarantees prompt payment when due, by acceleration or
otherwise, of this Note, regardless of its genuineness, validity, regularity or
enforceability and waives any right to require you to proceed against the
Borrower or any collateral which you might have been granted to secure any
endorser's liabilities under this Note.
PRESENTMENT, EXTENSION. I and each endorser and guarantor of this Note
respectively waive presentment, demand, notices, and protest, and also waive
any delay on the part of the holder hereof. Each assents to any extension or
other indulgence (including, without limitation, the release of any other party
to this Note or the release or substitution of collateral) which you permit me
or any such endorser or guarantor with respect to this Note or any collateral
given to secure this Note and any other liability or mine or such endorser or
guarantor to you.
MISCELLANEOUS. My liabilities and those of any endorser or guarantor of
this Note are joint and several; provided, however, your release of me of any
endorser or guarantor shall not release any other person obligated on account
of this Note. Each reference in this Note to me, 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 to you of the
person from whom contribution is sought have been satisfied in full.
I and each endorser and guarantor of this Note authorize you to
complete this Note if delivered in incomplete form, in any respect.
This Note in delivered to you at one of your offices In Massachusetts
and shall be governed by the laws of the Commonwealth of Massachusetts, and
each endorser and guarantor of this Note submit 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 to you
or their respective liabilities to you or their respective relationships with
you.
