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Exhibit 10.22
MORTGAGE AND SECURITY AGREEMENT
Boston Biomedica, Inc., a corporation organized pursuant to the laws of the
Commonwealth of Massachusetts with a principal place of business at 375 West
Street, West Bridgewater, Massachusetts (the "Mortgagor"), for consideration
paid, hereby grants to Commerce Bank & Trust Company, a trust company organized
pursuant to Massachusetts General Laws, Chapter 172, with a principal place of
business at 386 Main Street, Worcester, Worcester County, Massachusetts, (the
"Mortgagee"), with MORTGAGE COVENANTS, to secure the payment of Two Million Nine
Hundred Thousand and 00/100($2,900,000.00) Dollars with interest and any other
charges thereon payable as provided in the Mortgagor's Note of even date (the
"Note"), to secure the payment and performance of all covenants and agreements
contained herein and any other instruments securing said Note, (hereafter the
"Loan Documents"), and also to secure the payment of any and all liabilities (as
hereafter defined) of the Mortgagor to the Mortgagee, the land, situated at 375
West Street, West Bridgewater, Massachusetts, described in Exhibit A annexed
hereto, together with any and all improvements now or hereafter situated thereon
(the "Premises").
The Mortgagor covenants with the Mortgagee as follows:
1. The Mortgagor will pay the principal sum of the Note and the
interest thereon at the time and place and in the manner provided in the Note.
2. In the event of a default, the Mortgagor shall deposit with the
Mortgagee on each day when any payment under the Note is required to be made in
addition to the payments therein required, a monthly apportionment of
one-twelfth (1/12th) of the sum estimated by the Mortgagee to be sufficient to
make all payments of all real estate taxes and governmental charges and
assessments upon the Premises as they become due and any balance due for such
payments shall be paid by the Mortgagor to the Mortgagee upon demand. The
Mortgagee is hereby specifically authorized to pay when due or at any time
thereafter all of said payments and to charge the same to the account of the
Mortgagor. Every such deposit may, at the option of the Mortgagee, be applied
directly against the obligation with reference to which it was made, or, to the
fullest extent permissible according to law, any other obligation of the
Mortgagor secured hereby; such deposits may be commingled with other assets of
the Mortgagee and, in the discretion of the Mortgagee, invested by the Mortgagee
for its own account, without any obligation to pay income from such investment,
or interest on such deposits, to the Mortgagor, or to account to the Mortgagor
for such income in any manner, unless otherwise provided by law. The Mortgagor
grants the Mortgagee in the event of a default hereunder full power and
authority as attorney irrevocable of the Mortgagor, coupled with an interest, to
apply for and prosecute claims for the abatement of taxes and to collect and
endorse any checks issued on account of the Mortgagor and to retain and apply
the same to the debt secured hereby.
3. The Mortgagor shall keep the Premises in good order, repair and
condition, damage from casualty or condemnation expressly not excepted, and
shall not permit or commit waste on the Premises, nor remove or alter anything
which constitutes a part of the Premises without the prior written consent of
the Mortgagee and shall permit the Mortgagee, its agents or employees to enter
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the Premises, at any reasonable time, for the purpose of inspecting the Premises
to determine whether the Mortgagor is in compliance with its obligations under
this Mortgage; and Mortgagor further covenants that each and every part of the
Premises shall be maintained and used in accordance with all restrictions,
encumbrances or agreements affecting the Premises and with all zoning and
building codes and applicable laws, ordinances, rules and regulations of all
public authorities having jurisdiction over the Premises.
4(a). The Mortgagor shall pay for and maintain insurance with respect
to the Premises against loss or damage by fire and such other hazards as the
Mortgagee shall from time to time require, including without limitation, rent
insurance and fire insurance; such insurance policies or, at Mortgagee's option,
certificates thereof, to be deposited (along with evidence of payment of
premiums thereon) with and 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 approve. Throughout the
term of the Note, Mortgagor will provide Mortgagee with the renewal policy, or
at Mortgagee's option, certificates thereof (along with evidence of payment of
premiums thereon) at least fifteen (15) days prior to expiration of an existing
policy. All such policies shall provide that they shall not be cancelled or
amended without at least thirty (30) days prior written notice to the Mortgagee.
Such insurance shall provide that the same shall be payable to Mortgagee
notwithstanding any defense the insurer may have to the payment of the same to
Mortgagor or to any person holding any interest in the Premises. No settlement
on account of any loss covered by such insurance shall be effected without the
prior written consent of the Mortgagee. Mortgagor authorizes Mortgagee, at its
option, to adjust and compromise any losses under such insurance for and on
behalf of Mortgagor and any such adjustment and compromise shall be binding on
Mortgagor. The Mortgagor shall deposit monthly with the Mortgagee, at the option
of the Mortgagee, such sums as the Mortgagee estimates will provide amounts
sufficient to pay, when due, premiums for such insurance, hereby granting to the
Mortgagee, in the event of foreclosure, full authority as attorney irrevocable
of the Mortgagor, coupled with an interest, to cancel such insurance and retain
such premiums as may be returned, or to transfer such insurance to any person or
persons claiming title to the Premises or any part thereof by virtue of
foreclosure proceedings. The Mortgagee shall have the option of applying the
proceeds which it receives under any such insurance policies after deducting
therefrom all costs and expenses of the Mortgagee in collecting such proceeds
(i) to the repair or replacement of the Premises or any portion thereof upon
such conditions as the Mortgagee may prescribe and/or (ii) to or toward the
indebtedness secured hereby in such order as the Mortgagee may determine;
PROVIDED, HOWEVER, that in the event of a partial loss to or destruction of the
Premises rendering less than 50% of the buildings thereon unusable, and provided
further that there exists no Event of Default, Mortgagor shall have the option
to use the insurance proceeds to rebuild, in which event the Mortgagee shall
hold and disburse the insurance proceeds to the Mortgagor on a construction loan
basis. The Mortgagee shall pay to the Mortgagor all such insurance proceeds, to
the extent of the Mortgagor's interest therein, remaining in the Mortgagee's
possession after the full and complete payment of all such amounts due and
payable under this Mortgage or the Note and/or such application as aforesaid.
4(b) Mortgagor will also cause appropriate liability insurance to be
maintained in such
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amounts as Mortgagee shall request and shall deliver to Mortgagee evidence of
such insurance.
5. Any awards of damages on account of any condemnation for public use
of or injury to the Premises shall be paid to the Mortgagee. The Mortgagee shall
have the option of applying the proceeds which it receives from any such awards,
after deducting therefrom all costs and expenses of the Mortgagee in collecting
such proceeds, (i) to the restoration of that portion of the Premises which
remains upon such conditions as the Mortgagee may prescribe and/or (ii) to or
toward the indebtedness secured hereby in such order as the Mortgagee may
determine. Any balance remaining in the Mortgagee's possession after the full
and complete payment of all amounts secured hereby and/or such application as
aforesaid shall, if Mortgagee shall no longer be obligated to make any advances
or otherwise extend credit to Mortgagor and to the extent of the Mortgagor's
interest therein, be paid to the Mortgagor; otherwise the same shall be held by
Mortgagee without interest as Collateral Security for the Liabilities secured
hereby.
6. The Mortgagor shall perform such further acts and shall execute,
acknowledge and deliver to the Mortgagee such instruments as the Mortgagee may
require to confirm the grant of this Mortgage.
7. This Mortgage shall be deemed a grant and conveyance of, and a lien
upon all buildings, additions to said buildings, fixtures, structures and
appurtenances which may now or hereafter be located upon or used in connection
with the Premises and all such buildings, additions to said buildings, fixtures,
structures and appurtenances shall be a part of the real estate covered by this
Mortgage and shall be subject to all of the terms covenants and conditions
hereof and shall be security for the payment and performance of all liabilities
and indebtedness secured hereby and any further advances which may be made
hereunder or otherwise to the Mortgagor with the same force and effect as if
such buildings, additions to the said buildings, fixtures, structures and
appurtenances were now owned by the Mortgagor and specifically included herein.
8. Mortgagor shall maintain full and correct books and records showing
in detail the earnings and expenses of the Premises and will permit Mortgagee or
its representatives to examine said books and records, and all supporting
vouchers and data, at any time and from time to time upon request by Mortgagee.
9. The Mortgagor, for itself and for all who may claim through or under
it, hereby expressly waives and releases all right to have the Premises, or any
part thereof, or any other property which may hereafter be conveyed or
transferred by it to the Mortgagee as security for the liabilities and
indebtedness hereby secured, marshalled upon any foreclosure sale or other
enforcement of the rights of the Mortgagee hereunder.
10. The Mortgagor shall not suffer nor permit any mechanics lien,
judicial liens or other liens of any kind to be created, on the Premises, and if
any should arise or be created, the Mortgagor shall remove, discharge or vacate
the same or cause the same to be bonded or otherwise discharged within ten (10)
days after the same shall arise or be created, and if the Mortgagor shall fail
to
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discharge such lien or claim for lien, the Mortgagee may discharge such lien or
claim for lien, and the amount of any expenditure so incurred by the Mortgagee
shall be added to and become part of the liabilities and indebtedness secured
hereby.
11. If this Mortgage, by its terms, is now, or at any time, subject or
subordinate to a prior mortgage, Mortgagor shall not, without consent of
Mortgagee agree to the modification, amendment, or extension of such prior
mortgage, and Mortgagor will perform all obligations of Mortgagor under such
Mortgage.
12. Mortgagor agrees to pay, when due, all fees and expenses incurred
by Mortgagee incident to the loan transaction evidenced by the Note and secured
by this Mortgage, the assurance of the security represented by the Mortgage, and
incident to the enforcement by Mortgagee of the terms of its rights under the
Note and this Mortgage, including, without limitation, attorney's fees and
expenses. From time to time, Mortgagor shall provide Mortgagee, at Mortgagor's
expense, with an updated appraisal of the Premises or any portion thereof
designated by the Mortgagee within thirty (30) days of a written request from
Mortgagee such appraisal to be in form and prepared by an appraiser satisfactory
to Mortgagee.
13(a) The Mortgagor shall at the request of the Mortgagee submit for
examination, all leases then affecting the Premises and on demand shall assign
and deliver to the Mortgagee any or all such leases, such assignments to be made
by instruments in form and substance satisfactory to the Mortgagee; Mortgagor
hereby irrevocably granting to the Mortgagee full authority as the Mortgagor's
true and lawful attorney-in-fact coupled with an interest, with full power of
substitution, to make, execute, acknowledge and deliver such assignments.
13(b) The Mortgagor hereby irrevocably transfers, assigns and conveys
to the Mortgagee all rentals, revenue and other sums (hereafter referred to as
the "rentals") now due or which may hereafter become due under all leases or
agreements presently in force or which may hereafter be entered into with
respect to the Premises or any part thereof. The Mortgagor shall have the right,
while no event of default shall have occurred, to collect such rentals for its
own account from month to month, but for not more than one month in advance.
Upon default by the Mortgagor under this Mortgage or the Note, the Mortgagee
shall have the right to enter upon the Premises, and take possession thereof
without the consent of the Mortgagor and without the commencement of any action
to foreclose this Mortgage. After the Mortgagee has notified the tenants of such
right and such default, it shall be entitled to receive, and to collect or cause
to be collected, and the tenants shall be obligated to pay to the Mortgagee
without further inquiry as to the existence of any default, all rentals then
owing or which may thereafter become payable, and the Mortgagee may give a good
and sufficient receipt therefor. The Mortgagee shall incur no obligations with
respect to this assignment, shall not be bound, unless it so agrees, to collect
the rental, and shall not be liable for any loss or damage resulting from the
noncollection thereof. Any rental collected by the Mortgagee may be applied by
it, in its sole and absolute discretion, in whole or in part, first to
Mortgagee's commission as set forth herein, then to the repayment of any
indebtedness secured hereby, in such order as the Mortgagee shall determine; to
the maintenance, operation and administration of the
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Premises; to the payment or reduction of taxes or other charges affecting the
Premises; or to payments for repairs, renewals or other expenses incurred by the
Mortgagee in and upon the Premises. The Mortgagee shall be entitled to charge
and recover a resonable commission not to exceed six (6%) percent on all or any
rentals collected by virtue of this section. In the event of the exercise by the
Mortgagee of its rights under this section, it shall have the right, as agent
for the Mortgagor, to renew leases and to enter into new leases respecting the
Premises upon such terms and conditions as the Mortgagee may determine. The
Mortgagor agrees to execute such further documents as the Mortgagee may require
to give effect to this section and, upon receiving notice of the exercise by the
Mortgagee of its rights hereunder, shall transfer and deliver to the Mortgagee
all leases and other agreements which affect the Premises. The Mortgagee shall
have the right, but without any obligation to do so, to subordinate this
Mortgage and its rights hereunder to any lease or leases of the Premises, and
upon execution and recording of any instrument by the Mortgagee which purports
to effect such subordination, this Mortgage shall be subordinate to the lease or
leases referred to in such instrument 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.
14. This Mortgage constitutes a security agreement under the Uniform
Commercial Code and creates and Mortgagor grants to Mortgagee a security
interest in all improvements to the Premises and fixtures now owned or hereafter
acquired by Mortgagor and used or acquired for use on or in connection with the
Premises together with all accessions thereto and substitutions therefore and
replacements thereof and parts therefore and all cash and non-cash proceeds of
any of the foregoing. Mortgagor shall take all necessary action to maintain and
preserve the lien by the delivering, filing, refiling, recording or re-recording
of any financing statements, continuation statements or other security
agreements, and the giving of such instruments of further assurance as Mortgagee
may from time to time reasonably request to protect the lien of this Mortgage
with respect to such property. Without limiting the foregoing, Mortgagor hereby
irrevocably appoints Mortgagee attorney-in-fact for Mortgagor to execute,
deliver and file such instruments for and on behalf of Mortgagor; provided,
however, that Mortgagee is not under any duty to Mortgagor to protect, secure,
perfect or insure the lien of this Mortgage or any other security agreements
referred to herein nor shall Mortgagee have any obligation for, among other
things, the filing of any financing statements under the Uniform Commercial
Code. Notwithstanding any release of any or all of that property included in the
Mortgage or its satisfaction of record, the terms hereof shall survive as a
security agreement with respect to the security interest created hereby
evidenced by the Note. Mortgagor will pay or cause to be paid all taxes and fees
incident to any such filing, refiling, recording and re-recording, and all
reasonable counsel fees and other expenses, taxes and other governmental charges
incident thereto.
15. Any transfer, mortgage or pledge of the interest, or any part of
the interest, in the Premises of Mortgagor or of the Obligations of Mortgagor
without the written consent of Mortgagee, voluntarily, involuntarily, or by
operation of law, shall be deemed a default under the Mortgage. Any consent to
any one transfer, mortgage or pledge shall not be a waiver of the requirement of
consent for any further transfer, mortgage or pledge. If Mortgagor's rights
become vested in a person other the a Mortgagor named herein, Mortgagee may deal
with that person to extend or modify this
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Mortgage or the payments hereunder or the indebtedness secured hereby or release
part of the Premises without releasing or diminishing the liability or
obligation of the Mortgagor.
16. The proceeds of loan or loans evidenced by the Note shall be used
exclusively for business purposes and no part of the proceeds shall be used for
personal, family, household or agricultural purposes.
17. Mortgagor warrants that there has been no release nor is there a
present threat of a release of oil or hazardous material as such terms are
defined by Massachusetts General Laws, Chapter 21E ("Chapter 21E") on or in the
Mortgaged Property and that the Mortgagor will prevent any such release or
threat of release on or in the Mortgaged Property during the term of this
Mortgage. Mortgagor also warrants that it has not received any notification from
the Commonwealth of Massachusetts or any of its agencies under Section 4 of
Chapter 21E, or any order under Section 9 of Chapter 21E. Mortgagor covenants to
strictly comply with the requirements of Chapter 21E and to promptly notify
Mortgagee of any release or threat of release of oil or hazardous material on or
in the Mortgaged Property, and any notice or orders received pursuant to
Sections 4 and 9, respectively, of Chapter 21E. Mortgagor hereby covenants to
protect, indemnify and hold Mortgagee harmless from and against all loss,
liability, damage and expense, including attorneys' fees, suffered or incurred
by Mortgagee under or on account of Chapter 21E, including without limitation,
the filing of a lien against the Mortgaged Property in favor of the Commonwealth
of Massachusetts. The provisions of the paragraph shall survive the discharge of
this mortgage.
In the event that the Mortgagor shall fail to strictly comply with the
requirements of Chapter 21E, or any other federal, state or local law, by-law,
rule or regulation regulating the use or disposal of hazardous materials which
may be applicable to the Mortgaged Property, the whole sum of principal and
interest then remaining unpaid under the Note or other loan documents shall
become immediately due and payable, at the option of the Mortgagee.
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Mortgagee, at its election and in its sole discretion, may (but is not
obligated to) cure any failure on the part of Mortgagor to comply with Chapter
21E, including, without limitation, the following:
(a) arrange for the prevention and/or the cleanup of any release or
threat of a release of oil or hazardous material on or in the Mortgaged
Property, and pay for such prevention and/or clean-up costs and associated
costs;
(b) pay, on behalf of Mortgagor, any fines or penalties imposed on
Mortgagor by the Commonwealth of Massachusetts in connection with such release
or threat of release of oil or hazardous material; and
(c) make any other payment or perform any other act which will prevent
a lien by the Commonwealth of Massachusetts from attaching to the Mortgaged
Property.
Any partial exercise by Mortgagee of the remedies herein set forth, or
any partial undertaking on the part of Mortgagee to cure Mortgagor's failure to
comply with Chapter 21E, shall not obligate Mortgagee to complete the actions
taken or require Mortgagee to expend further sums to cure Mortgagor's
noncompliance; neither shall the exercise of any such remedies operate to place
upon Mortgagee any responsibility for the operation, control, care, management
or repair of the Mortgaged Property or make Mortgagee the "Operator" of the
Mortgaged Property within the meaning of Chapter 21E or a so-called "lender in
possession".
Any amount paid or costs incurred by Mortgagee as a result of the
exercise by Mortgagee of any of the rights herein set forth, together with
interest thereon at the rate equal to the rate then accruing in respect of the
Note 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 a
part of the obligations secured hereby, and the same may be collected as part of
the obligations secured hereby, and the same may be collected as part of the
obligations in any suit hereon or upon the Note or any other instrument executed
in connection herewith; and Mortgagee, by making any such payment or incurring
any such costs, shall be subrogated to any rights of Mortgagor to seek
reimbursement from any third parties, including, without limitation, a
predecessor-in-interest to Mortgagor's title who may be a "responsible party"
under Chapter 21E in connection with any such release or threat of release of
oil or hazardous material.
18. If there shall be a breach in any condition or covenant of this
Mortgage, the Mortgagee shall have the right, but without any obligation to do
so, to cure such default for the account of the Mortgagor, and to add amounts
expended for such purpose to the principal sum secured hereby, and the Mortgagee
may, but shall not be obligated to, apply any deposits or any sums credited by
or due from the Mortgagor to Mortgagee to cure such default without first
enforcing any other rights of the Mortgagee against the Mortgagor, or against
any surety, endorser or guarantor of the indebtedness secured hereby, or against
the Premises. In case redemption is had by the Mortgagor after foreclosure
proceedings have been initiated, the Mortgagee shall be entitled to collect all
costs, charges and expenses, including attorneys' fees, incurred up to the time
of
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redemption.
19. The Mortgagor acknowledges that the occurrence of any of the
following shall be an Event of Default: (a) failure of Mortgagor to pay when due
any amount owing by Mortgagor to Mortgagee; (b) failure of Mortgagor to perform
any covenant or agreement with, or obligation to Mortgagee, other than one for
the payment of money; (c) any statement, warranty or representation heretofore
or hereafter made to the Mortgagee by or on behalf of the Mortgagor shall prove
to have been false or misleading in any material respect when made; (d)
insolvency or business failure of Mortgagor or the appointment of a trustee,
receiver, guardian, conservator or liquidator for any of them or any material
part of the property of it; (e) assignment for the benefit of creditors by;
execution of a trust mortgage or other arrangement with creditors by;
commencement of any proceedings under any bankruptcy, insolvency or other law
relating to the relief of debtors by or against the Mortgagor, but in the case
of involuntary proceedings, the same shall not have been dismissed within thirty
(30) days after the commencement thereof; (f) any property, real or personal, of
Mortgagor (including Premises) or of anyone else, which constitutes collateral
security for any of Mortgagor's indebtedness, liabilities or obligations to
Mortgagee, is condemned, taken by eminent domain, attached, levied upon, seized,
encumbered, mortgaged or a lien is permitted or suffered to exist thereon or is
destroyed, damaged, lost, stolen or sold (unless specifically permitted by the
terms of the Loan Documents); (g)Mortgagor is in default, breach or violation
under any agreement by which it or any of its property (including the Premises)
are bound; or (h)any event occurs or the financial condition of Mortgagor is
such that in Mortgagee's opinion Mortgagor's ability to pay or perform any of
its obligations to Mortgagee in a timely fashion is or may be impaired.
A Default shall mean any event or occurrence which, with the passage of
time or giving of notice or both would constitute an Event of Default.
20. So long as any Event of Default shall have occurred and be
continuing, then Mortgagee in addition to, and not in limitation of, any and all
other rights or remedies available to it by law or by any other provision of any
of the instruments given to secure the Note, shall have the right, without
notice:
(a) To enter upon and take possession of the Premises or any part
thereof, and to perform any acts Mortgagee shall deem necessary or proper to
conserve or enhance the Premises or their value (including, without limitation,
the making of repairs, replacements and alterations), to manage and operate the
Premises, to collect and receive all rents, issues and profits from the
Premises, past due and thereafter accruing, and to exercise all other rights of
Mortgagor with respect to the Premises.
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(b) To have a receiver appointed to enter and take possession of the
Premises or any part thereof and to perform any acts said receiver shall deem
necessary or proper to conserve or enhance the Premises or their value,
(including, without limitation, the making of repairs, replacements and
alterations), to manage and operate the premises and to apply the profits from
the Premises past due and thereafter accruing obligations, and to exercise all
other rights of Mortgagor with respect to the Premises.
(c) To accelerate the maturity of the indebtedness secured by this
Mortgage.
(d) To sell the Premises at public auction upon such terms and
conditions as Mortgagee shall determine, subject to the requirements of this
Mortgage and applicable laws; or to foreclose this Mortgage in any other manner
permitted by law.
(e) To obtain judgement and execution for the indebtedness secured by
this Mortgage, to the extent not otherwise satisfied.
21(a) If Mortgagee shall exercise any of the rights described in section
20, Mortgagor shall be liable to Mortgagee in an amount of equal to all of the
expenses (including, without limitation, receiver's fees and counsel fees)
incurred pursuant to the powers herein contained which shall be secured hereby.
Mortgagee shall apply such rents, issues and profits as shall be received by it
first to the payment of all costs and expenses incurred and thereafter to the
indebtedness secured hereby in such order of priority as Mortgagee, in its sole
discretion, shall determine; and the exercise of such rights and disposition of
such funds shall not constitute a waiver of any foreclosure, once commenced, nor
preclude the later commencement of foreclosure for breach hereof.
(b) Mortgagor agrees that all rights of Mortgagee as to personal
property security and real estate security may be exercised together or
separately and further agrees that, in exercising its power of sale, Mortgagee
may sell the personal property security or any part thereof either separately
from, or together with, the real estate security or any part thereof, in such
order as Mortgagee may, in its discretion, elect, and whether or not the
aggregate proceeds thereof exceed the indebtedness secured by this Mortgage. At
any sale any combination of or all of the security may be offered for sale for
one (1) total price and the proceeds of such sale accounted for in one (1)
account without distinguishing between the items of security or assigning to the
separate securities proportions, of the proceeds, and, in case Mortgagee, in the
exercise of the power of sale herein given, elects to sell 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 personal property security and real estate security
not previously sold shall have been sold.
(c) Upon completion of any sale, Mortgagee shall execute and deliver an
instrument conveying, assigning and transferring all right, title and interest
in the property and rights solely in the name of Mortgagor, or in the name of
Mortgagee, and the same shall operate to divest all right, title and interest of
Mortgagor in any property or right so sold and shall be a perpetual bar, both at
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law and in equity, against Mortgagor and all persons, claiming under Mortgagor.
(d) No forbearance on the part of the Mortgagee or extension of the
time for the payment of the whole or any part of the liabilities secured hereby,
whether or not for additional interest or other consideration paid or payable to
the Mortgagee and whether oral or in writing, or any other indulgence given by
the Mortgagee to the Mortgagor or to any other party claiming any interest in or
to the Premises, shall operate to release or in any manner affect the original
liability of the Mortgagor, or the priority of this Mortgage or to limit,
prejudice or impair any right of the Mortgagee, including, without limitation,
the right to realize upon the security, or any part thereof, for the liabilities
secured hereby, the notice of any such extension, forbearance or indulgence
being hereby waived by the Mortgagor and all those claiming by, through or under
the Mortgagor; and no consent or waiver, to or of any default by the Mortgagor
shall be construed as a consent or waiver, express or implied, by the Mortgagee
to or of any further default in the same or any other term, condition, covenant
or provision of this Mortgage or of the obligation secured hereby. All remedies
provided in this Mortgage are distinct and cumulative to any other right or
remedy under this Mortgage or afforded by law or equity, and may be exercised
concurrently, independently or successively.
(e) In case redemption is had by Mortgagor after foreclosure
proceedings have begun, Mortgagee shall be entitled to collect all costs,
charges and expenses incurred up to the time of redemption; and, in case of
foreclosure sale, Mortgagee shall be entitled to retain one percent (1%) of the
purchase money in addition to the costs, charges and expenses allowed by law.
22. Acceleration of maturity, once claimed hereby by Mortgagee, may, at
its option, be rescinded in a written acknowledgement to that effect without
waiving the default or any rights, including the right to accelerate again, with
respect thereto. The tender and acceptance of partial payment of amounts after
such acceleration, or the commencement of any foreclosure action, shall not in
any way affect, rescind or terminate such acceleration of maturity or such
foreclosure action.
23. Wherever notice, demand or a request may properly be given to the
Mortgagor under this Mortgage, the same shall always be sufficient to serve as a
notice, demand or request hereunder if in writing and sent by registered or
certified mail, postage prepaid, return receipt requested, addressed to the
Mortgagor at the address given in this Mortgage as the Mortgagor's address or
the business address of the Mortgagor last known to the Mortgagee and any such
notice, demand or request shall be treated as having been given upon such
deposit in the United States mails; and a notice so addressed shall always be a
sufficient notice, notwithstanding a change in the ownership of the Premises,
whether or not consented to by the Mortgagee; and where more than one person
constitutes the Mortgagor, one notice sent to the address given in this Mortgage
as the Mortgagor's address or the last known business address of any one of them
shall constitute sufficient notice to all.
24. The term "liabilities" as used herein shall include without
limitation, any and all
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liabilities, debts and obligations of the Mortgagor and of the makers of the
Note to the Mortgagee, including those contained in the Note and all
liabilities, debts and obligations of each and every maker, surety, endorser or
guarantor of the obligations of the Mortgagor and of the makers of the Note to
the Mortgagee of every kind and description including, without limitation, all
loans, advances, indebtedness, notes, obligations and amounts, liquidated or
unliquidated, owing by the Mortgagor and by the makers of the Note 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, absolute or
contingent, or by reason of any cause of action which the Mortgagee may have
against the Mortgagor or against the makers of the Note. The term "liabilities"
shall also include all interest and other charges chargeable to the Mortgagor or
due from 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,
attorney's fees and all of the Mortgagee's executive, administrative and staff
costs and expenses in excess of those which would normally be incurred in the
administration of a financial transaction similar to that between the Mortgagor
and the Mortgagee in which no event of default shall have occurred.
25. If Mortgagee shall be made party to any action suit or proceeding
by reason of the execution of this Mortgage or the Note, or in which the
priority of the lien of this Mortgage shall be challenged, Mortgagor shall
reimburse to the Mortgagee, immediately upon demand, all sums of money paid by
Mortgagee, including attorneys fees, to defend said action and uphold the lien
created thereby.
26. If Mortgagor shall be the Trustees of a Trust, the Trustees hereby
certify, pursuant to the provisions of such Trust that said Trust is in full
force and effect, that said Trust has not been amended and that they are the
said Trustees of said Trust.
27. Mortgagor is not now in default under any instruments or
obligations relating to the Premises and no party has asserted any claim of
default relating to the Premises. The execution and delivery of, and performance
of Mortgagor's obligations under the Loan Documents and the consummation of the
transactions hereby and thereby contemplated will not result in any breach of,
or constitute a default under, any contract, mortgage, lease, bank loan or
credit agreement, trust indenture, or other instrument to which Mortgagor is a
party or by which Mortgagor the premises or any other property of Mortgagor is
or may be bound or affected and do not violate or contravene any law, order,
decree, rule or regulation to which Mortgagor, the premises or any other
property of Mortgagor is or may be subject; nor do any such instruments compose
or contemplate any obligations which are or will be inconsistent with any other
obligations imposed on Mortgagor under any other instruments heretofore or
hereafter delivered by Mortgagor.
28. All statements, financial or otherwise, submitted to Mortgagee in
connection with this transaction are true and correct in all respects, and with
respect to the financial statements have been prepared in accordance with
generally accepted accounting principals consistently applied and fairly present
the financial condition of the parties or entities covered by such statements as
of the date
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thereof and the results of operations of such parties or entities during the
period reflecting thereon. No additional borrowings and no material additional
indebtedness have been made or incurred by such parties or entities, or any of
them, since the date thereof, nor have Mortgagor or the Premises experienced a
material adverse change since the date thereof. Mortgagor is now in a solvent
condition.
29. If the laws now in force for the taxation of mortgages or of debts
secured by mortgages (including, without limitation, laws exempting from
taxation amounts invested in mortgages) shall be changed to the detriment of
Mortgagee, then Mortgagee may, at its election accelerate the maturity of the
Note, and upon the exercise of such election the maturity will be accelerated,
unless within ninety (90) days after maturity for said reason, Mortgagor, if
permitted by law, shall pay to Mortgagee an amount equal to such additional tax
for which Mortgagee shall have become liable or be affected.
30. The word "Mortgagee" as used herein shall mean the mortgagee named
herein and any subsequent holder or holders hereof; the word "Mortgagor" as used
herein shall mean the mortgagor named herein and 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.
31. The rights and obligations hereunder shall be governed by the laws
of The Commonwealth of Massachusetts. In the event that any provisions or clause
of this Mortgage or the Note shall be held invalid in any circumstance, such
invalidity shall not effect any other provision or circumstance.
Mortgagor waives all rights of homestead exemption in the Premises and
relinquishes all rights of curtesy and dower in the Premises.
This Mortgage is upon the STATUTORY CONDITION and upon further
condition that all covenants and agreements on the part of the Mortgagor and of
the makers of the Note contained herein and in the Note and in the Loan
Documents shall be kept and fully performed, for any breach of which, including
without limitation the occurrence of any Event of Default, the Mortgagee shall
have the STATUTORY POWER OF SALE and any other powers given by law.
WITNESS the execution hereof under seal this____ day of March, 2000.
Boston Biomedica, Inc.
----------------------------
By: Richard T. Schumacher, its duly
authorized Chief Executive Officer
and Assistant Treasurer
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COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. March 31, 2000
Then personally appeared the above-named Richard T. Schumacher CEO and
Assistant Treasurer and acknowledged the foregoing instrument to be the free act
and deed of Boston Biomedica, Inc., before me.
-------------------------------
Notary Public: Howard L. Levin
My Commission Expires: 10-13-2006
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