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12.          This Agreement shall be binding upon and inure to the benefit of the Senior Creditor and the Subordinated Creditor and their respective successors and assigns.

 

13.          This Agreement may not be amended, supplemented or modified except by an instrument in writing signed by the Senior Creditor and the Subordinated Creditor.

 

14.          All parties hereto have the authority to enter into this Agreement and the execution of this Agreement has been duly authorized. This Agreement shall be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns.  This Agreement shall be construed according to the Uniform Commercial Code.

 

15.          This Agreement sets forth the entire understanding of the Senior Creditor and the Subordinated Creditor and supersedes any and all prior agreements, representations, arrangements and understandings relating to the subject matter hereof.

 

16.          This Agreement may be executed in any number of counterparts by the different parties on separate counterparts, each of which when so executed and delivered shall be an original, but all of the counterparts shall together constitute one and the same instrument.

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Fidelity National Title Insurance Company

LOAN POLICY

 

EXHIBIT A - LEGAL DESCRIPTION

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After recording return to:

 

MAYO CROWE LLC

CITY PLACE II

185 ASYLUM STREET

HARTFORD, CONNECTICUT 06103

ATTENTION: KATHERINE F. TROY, ESQ.

 

 

RANOR, INC., AS BORROWER TO

 

REVERE HIGH YIELD FUND, LP, AS LENDER

 

 

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RECITALS:

WHEREAS, Borrower and Lender are parties to that certain Term Loan and Security Agreement dated the date hereof (as such agreement is amended and in effect from time to time, the “Loan Agreement”);

 

WHEREAS, Borrower desires to secure the payment and performance of all of its obligations under the Note and certain additional Obligations (as defined in Section 1.1).

IN CONSIDERATION of the principal sum of the Note as advanced as described above, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in order to secure the Obligations, Borrower hereby:

(A)           Irrevocably, unconditionally, and absolutely grants, bargains, sells, assigns, transfers, pledges, mortgages, warrants, and conveys to Lender (WITH POWER OF SALE) for the purposes herein set forth and grants Lender (WITH POWER OF SALE) a security interest in, all of Borrower’s right, title, and interest in the following property (collectively, the “Collateral”), upon the terms and conditions hereof:

 

 

 

 

 

 

(i)            That certain tract or parcel of land of which Borrower is now seized and in possession, situate in Worcester County, Massachusetts, having a street address at 48 Town Farm Road, Westminster, Massachusetts 01473, and more fully described in Exhibit A attached hereto and by this reference incorporated herein (“Premises”);

 

(ii)           Any and all buildings, constructions, and improvements now or hereafter erected or located in or on the Premises, including, but not limited to, all fixtures, attachments, appliances, equipment, machinery, and other articles now owned by Borrower or hereafter acquired by Borrower and attached or affixed thereto or located thereon (except the personalty owned by lessees) (collectively, the “Improvements”), together with all appurtenances and additions thereto and betterments, renewals, substitutions, and replacements thereof, all of which shall be deemed and construed to be part of the realty;

(iii)          All right, title, and interest of Borrower in and to all items incorporated as part of or attributed or affixed to any of the Premises, Improvements, or other real property included in the Collateral or any other interest of Borrower, whether now owned or hereafter acquired, in, to or relating to the Premises, Improvements, or such other real property, in such manner that such items are no longer personal property under the laws of the Commonwealth of Massachusetts;

(iv)          All easements, rights-of-way, and rights now owned or hereafter acquired by Borrower and used or usable in connection with the Premises and the Improvements, or as a means of access thereto, including, without limiting the generality of the foregoing, all rights pursuant to any trackage agreement, all rights to the non-exclusive use of common drive entries, all water and water rights, and all mineral, mining, oil, and gas rights and rights to produce or share in the production of anything related thereto, together with all tenements, hereditaments, and appurtenances thereof and thereto;

(v)           All right, title, and interest now owned or hereafter acquired by Borrower in and to any land lying within the right-of-way of any street, open or proposed, adjoining the Premises, and any and all sidewalks, alleys, and strips and gores of land adjacent to or used in connection with the Premises or the Improvements;

(vi)          All of the fixtures described in Exhibit B attached hereto and by this reference incorporated herein, now owned or hereafter acquired by Borrower, and all appurtenances and additions thereto and betterments, renewals, substitutions and replacements thereof; and, all right, title, and interest of Borrower, now or hereafter arising, in and to any and all said property is hereby assigned to Lender, together with the benefits of all deposits and payments now or hereafter made thereon by or on behalf of Borrower;

(vii)         All interests, estates, or other claims or demands in law and in equity which Borrower now has or may hereafter acquire in the Collateral;

 

 

 

 

(viii)       All proceeds, products, substitutions and accessions of the foregoing, of every type; and

(B)

Assigns, sets over, and transfers to Lender (WITH POWER OF SALE):

 

(i)           All right, title, and interest of Borrower in and to all leases, whether written or oral, covering the Premises, the Improvements, or any portion thereof, now or hereafter existing or entered into (collectively, “Leases”), and all right, title, and interest of Borrower thereunder, including, without limitation, all guaranties thereof, all cash or security deposits, advance rentals, and all deposits or payments of similar nature; and

(ii)           All rents, issues, profits, royalties, income, and other benefits derived from the Premises or the Improvements or any other portion of the Collateral (collectively, the “Rents”).

TO HAVE AND TO HOLD the said bargained property with all and singular the rights, members, and appurtenances thereto appertaining, to the only proper use, benefit, and behoof of Lender and its successors and assigns, in fee simple, and Borrower hereby covenants that Borrower is lawfully seized and possessed of said property, and has a good right to convey it, and it is unencumbered, subject to (a) Liens (as defined in the Loan Agreement) held by Lender, (b) Liens for unpaid taxes that either (i) are not yet delinquent, or (ii) do not constitute an Event of Default hereunder and are the subject of Permitted Protests (as defined in the Loan Agreement), (c) Liens set forth on Schedule P to the Loan Agreement, (d) warehousemen, landlords, carriers, mechanics, materialmen, laborers, or suppliers, incurred in the  ordinary course of business and not in connection with the borrowing of money, and which Liens either (i)     are for sums not yet delinquent, or (ii) are the subject of Permitted Protests, (f) Liens on amounts deposited in connection with obtaining worker’s compensation or other unemployment insurance, (g) Liens on amounts deposited in connection with the making or entering into bids, tenders, or leases in the ordinary course of business and not in connection with the borrowing of money, (h) Liens on amounts deposited as security for surety or appeal bonds in connection with obtaining such bonds in the ordinary course of business, (i) Liens resulting from any judgment or award that is not an Event of Default hereunder, (j) rights of setoff or bankers’ liens upon deposits of cash in favor of banks or other depository institutions; and (k) with respect to any Real Property (as defined in the Loan Agreement), easements, rights of way, and zoning restrictions that do not materially interfere with or impair the use or operation thereof as reasonably determined by Lender, including those matters described in Schedule B of that certain lender’s title insurance policy from Fidelity National Title Insurance Company provided to Lender in connection with the recording of the Security Instrument (collectively, the “Permitted Liens”); and Borrower does by these presents bind Borrower and Borrower’s heirs, executors, administrators, successors and assigns, forever, to warrant and defend the said bargained property, unto Lender and its successors and assigns, against Borrower, and against all and every other person or persons shall and will WARRANT AND FOREVER DEFEND.

 

 

PROVIDED, that if Borrower shall pay or cause to be paid to Lender the Obligations in full at the time and in the manner stated in the Note and in this Security Instrument and other Loan Documents at any time before the sale hereinafter provided for, and shall well and truly perform, comply with and observe each and every covenant, agreement, term and condition of this Security Instrument and of the other Loan Documents, then these presents and the estate granted hereby shall cease, determine and become void, and Lender shall (at the expense of Borrower), release and discharge the lien and terminate the security interest of this Security Instrument.

 

IN FURTHERANCE OF THE FOREGOING, Borrower hereby warrants, represents, covenants, and agrees as follows:

 

 

OBLIGATIONS

 

Section 1.1  Obligations.   This Security Instrument is executed, acknowledged, and

delivered  by  Borrower  to  secure  and  enforce  the  following  obligations  (collectively,  the “Obligations”):

(a)           Payment and performance of all obligations of Borrower under the Note;

(b)           Performance of every obligation, covenant, and agreement of Borrower arising under or in connection with this Security Instrument, the Loan Agreement and all other Loan Documents (as defined in Section 1.2 hereof);

(c)           Payment of all sums advanced pursuant to the terms of this Security Instrument to protect and preserve the Collateral and the lien and security interest hereby created therein;

(d)           Payment of all sums advanced and costs and expenses incurred by Lender in connection with the Obligations, or any part thereof, any renewal, extension or change of or substitution for the Obligations or any part thereof, or the acquisition or perfection of the security therefor, whether made or incurred at the request of Borrower or Lender;

(e)           Payment of all indebtedness and liabilities and performance of all other obligations of Borrower to Lender arising pursuant to or in connection with any interest rate swap agreement, interest rate cap agreement, hedging agreement or other interest rate protection arrangements now or hereafter made between Borrower and Lender to hedge the floating interest rate expenses of the Note;

(f)           Payment of all other indebtedness and liabilities and performance of all other obligations of Borrower to Lender arising pursuant to or in connection with this Security Instrument, the Loan Agreement or any other Loan Document; and

 

(g)          All renewals, extensions, amendments, modifications, consolidations, and changes of, or substitutions or replacements for, all or any part of the items described under clauses (a) through (f) above.

 

 

 

 

 

Section 1.2  Loan Documents. This Security Instrument, the Loan Agreement, the Note, the Assignment of Leases and Rents dated as of the date hereof from Borrower in favor of Lender, the Guaranty Agreement dated as of the date hereof from TechPrecision Corporation (the “Guarantor”) in favor of Lender (the “Guaranty”), the Environmental Indemnity Agreement dated as of the date hereof from Borrower and Guarantor in favor of Lender, the Assignment of Contracts, Licenses, Permits, Agreements, Warranties and Approvals dated as of the date hereof from Borrower in favor of Lender, the UCC-1 Financing Statements, the Compliance Agreement dated as of the date hereof from Borrower in favor of Lender, the Guarantor’s Certificate of No Adverse Change dated as of the date hereof from Guarantor in favor of Lender, the Fee Representation Letter dated as of the date hereof from Borrower and Guarantor, and any other mortgage, security agreement, assignment of leases and rents, environmental indemnity agreement, cash collateral agreement, guaranty, ISDA master agreement or other interest rate hedging or protection agreement, or other agreement or mortgage now or hereafter made to evidence or further secure the payment and performance of any of the Obligations or otherwise made in connection with the Obligations, are herein referred to collectively as the “Loan Documents.”

ARTICLE II.

 

REPRESENTATIONS AND WARRANTIES

 

Borrower hereby represents and warrants to Lender as follows:

 

Section 2.1 Title. Borrower owns the Premises and Improvements in  fee  simple absolute, and has good and marketable title to the Collateral, free and clear of all liens, charges, encumbrances, and security interests whatsoever, except the Permitted Liens. Borrower will forever warrant and defend its title to the Collateral, and the validity, enforceability, and priority of the lien and security interest created hereby, against the claims of all persons except the Permitted Liens.

 

Section 2.2 Legal Status and Authority. Borrower is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and has all necessary approvals, governmental and otherwise, and full power and authority to own its properties (including the Collateral) and carry on its business as now conducted and proposed to be conducted.

 

 

 

 

 

 

Section 2.4  Litigation. There is no action, suit, or  proceeding,  judicial, administrative, or otherwise (including any condemnation or similar proceeding), pending or, to the best knowledge of Borrower, threatened or contemplated against, or affecting, Borrower or the Collateral.

Section 2.5  Status of Collateral.

 

(a)           The Premises and Improvements are not located in an area identified by the Secretary of Housing and Urban Development, or any successor thereto, as an area having special flood, mudslide, and/or flood-related erosion hazards pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor law.

 

(b)           Borrower has all necessary certificates, permits, licenses, and other approvals, governmental and otherwise (including all zoning, building code, land use, environmental and similar approvals), necessary for the operation of the Premises and Improvements, all of which are in full force and effect as of the date hereof and all operations conducted thereon are in substantial compliance with such approvals.

(c)           The Premises and Improvements, and the present and contemplated use and occupancy thereof, are in full compliance with all applicable zoning ordinances, building codes, land use, and other similar laws.

(d)           The Premises and Improvements are served by all utilities required for the contemplated use thereof.

(e)           All public roads and streets necessary to serve the Premises and Improvements for the contemplated use thereof have been completed, are serviceable in all weather, and, where required by the appropriate governmental entities, have been dedicated to and formally accepted by such governmental entities.

(f)            All costs and expenses of any and all labor, materials, supplies, and equipment used in the construction of the Improvements have been paid in full.

 

(g)           Borrower has paid in full for, and is the owner of, all furnishings, fixtures, and equipment (other than lessees’ property) used in connection with the operation of the Premises, free and clear of any and all security interests, liens, or encumbrances, except for the Permitted Liens.

 

 

 

 

 

 

 

(i)           All taxes and governmental assessments, water, sewer and municipal charges, if any, that are due and owing as of the date hereof and which, if not paid, would create a lien on or affect the ownership interest of Borrower with respect to the Collateral, have been paid.

(j)           Borrower has not entered into any management agreement concerning the Collateral, and Borrower does not have any obligation to pay any management fees in connection with management of the Collateral.

(k)           Borrower has not accepted rent under the Leases or under any rental or occupancy agreement more than thirty (30) days in advance of its due date.

 

ARTICLE III.

 

COVENANTS AND AGREEMENTS

 

Borrower covenants and agrees with Lender as follows:

Section 3.1  Payment of Obligations.  Borrower shall pay when due and shall perform the Obligations.

Section 3.2  Continuation of Existence. Borrower shall maintain in good standing its existence under the laws of the Commonwealth of Massachusetts and shall not (i) dissolve, terminate, or otherwise dispose of, directly or indirectly or by operation of law, all or substantially all of its assets; (ii) reorganize, convert or change its legal structure without the prior written consent of Lender; or (iii) change its name, the address of its principal offices, or the name under which Borrower conducts its business without promptly notifying Lender of such change.

Section 3.3  Taxes, Liens, and Other Charges.

 

(a)           Subject to Permitted Protests, Borrower shall provide for payments when due of all taxes, liens, assessments, dues, fines, impositions and public charges, general and special, ordinary and extraordinary, of every character (including penalties and interest), now or hereafter levied or assessed upon or against the Collateral (collectively, the “Assessments”). Borrower shall also pay (i) all income, franchise, and other taxes and governmental charges levied, assessed, or imposed by the United States of America, or any state, any political subdivision thereof, or any other taxing authority upon Borrower or in respect of any of the Collateral which, if unpaid, would become a lien or charge upon the Collateral, or any part thereof; and (ii) all charges made by utility companies, public or private, for services furnished or used in connection with the Collateral (together with the Assessments, collectively, “Impositions”).

 

(b)           Borrower shall pay all taxes (excluding income, franchise, and doing business taxes), assessments, charges, expenses, costs, and fees (including registration and recording fees) levied on, or assessed against Lender, to the extent same are incurred in connection with any of the Loan Documents or the Loan. Borrower shall also pay all stamp and other similar taxes required to be paid in connection with the Obligations.

Section 3.4 Defense of Title and Litigation.  Subject to the Permitted Liens, if the lien or security interest created by this Security Instrument, or the validity, enforceability, or priority thereof or of this Security Instrument, or if title or any of the rights of Borrower or Lender in or to the Collateral, shall be endangered or questioned, or shall be attacked directly or indirectly, or if any action or proceeding is instituted against Borrower or Lender with respect thereto, Borrower will promptly notify Lender thereof and will diligently endeavor to cure any defect which may be claimed, and will take all necessary and proper steps for the defense of such action or proceeding, including the employment of counsel, the prosecution or defense of litigation, and, subject to Lender’s approval, the compromise, release, or discharge of any and all adverse claims. Lender (whether or not named as a party to such actions or proceedings) is hereby authorized and empowered (but shall not be obligated) to take such additional steps as it may deem necessary or proper for the defense of any such action or proceeding or the protection of the lien, security interest, validity, enforceability, or priority of this Security Instrument, or of such title or rights, including the employment of counsel, the prosecution or defense of litigation, the compromise, release, or discharge of such adverse claims, the purchase of any tax title, and the removal of such prior liens and security interests. Borrower shall, on demand, reimburse Lender for all expenses (including reasonable attorneys’ fees and disbursements) incurred by it in connection with the foregoing matters. All such costs and expenses of Lender, until reimbursed by Borrower, shall be part of the Obligations and shall be deemed to be secured by this Security Instrument.

Section 3.5 Operation and Maintenance of Collateral.

 

 

 

 

 

 

(b)           Replacement of Collateral. Except for Permitted Dispositions (as defined in the Loan Agreement), Borrower will keep the Premises and the Improvements fully equipped, and will replace all worn out or obsolete Collateral with fixtures or personal property comparable thereto when new, and will not, without Lender’s prior written consent, remove from the Premises or the Improvements any fixtures or personalty covered by this Security Instrument unless the same is replaced by Borrower with an article of equal suitability and value when new, owned by Borrower free and clear of any lien or security interest (other than Permitted Liens).

(c)           Compliance with Laws. Borrower will perform and comply promptly with, and cause the Collateral to be maintained, used, and operated in accordance with, any and all (i) present and future laws, ordinances, rules, regulations, and requirements of every duly- constituted governmental or quasi-governmental authority or agency applicable to Borrower or the Collateral; (ii) similarly applicable orders, rules, and regulations of any regulatory, licensing, accrediting, insurance underwriting or rating organization, or other body exercising similar functions; (iii) similarly applicable duties or obligations of any kind imposed under any Permitted Encumbrance or otherwise by law, covenant, condition, agreement, or  easement, public or private; and (iv) policies of insurance at any time in force with respect to the Collateral. If Borrower receives any notice that Borrower or the Collateral is in default under or is not in compliance with any of the foregoing, or notice of any proceeding initiated under or with respect to any of the foregoing, Borrower will promptly furnish a copy of such notice to Lender.

(d)           Zoning; Title Matters. Borrower will not, without the prior written consent of Lender, (i) initiate or support any zoning reclassification of the Premises or the Improvements, seek any variance under existing zoning ordinances applicable to the Premises or the Improvements, or use or permit the use of the Premises and Improvements in a manner which would require any variance or special use permit under applicable zoning ordinances;  (ii) modify, amend, or supplement any of the permitted title encumbrances; (iii) impose any restrictive covenants or encumbrances upon the Collateral, execute or file any subdivision plat affecting the Premises or the Improvements, or consent to the annexation of the Premises or the Improvements to any municipality; or (iv) permit or suffer the Premises and the Improvements to be used by the public or any person in such manner as might make possible a claim of adverse usage or possession, or of any implied dedication or easement.

(e)           No Cooperative or Condominium. Borrower shall not operate or permit the Premises or the Improvements to be operated as a cooperative, condominium, or other form of ownership in which the lessees or other occupants thereof participate in the ownership, control, or management of the Premises, Improvements, or any part thereof, as lessees, stockholders, or otherwise.

Section 3.6  Insurance.

 

(a)           Type of Insurance Coverage. Borrower shall keep the Premises, the Improvements, and the other Collateral insured for the benefit of Borrower and Lender by procuring and maintaining the following types of insurance:

(i)           comprehensive, “All Risks” property insurance providing “special” form coverage in form and content as the Lender may from time to time reasonably require and against hazards as the Lender may from time to time reasonably require on the Improvements and personal property contained therein and in each case (A) in an amount equal to 100% of the “Full Replacement Cost,” which for the purposes of this Security Instrument shall mean actual replacement value (exclusive of costs of excavation, foundations, underground utilities and footings) with a waiver of depreciation; (B) containing an agreed amount endorsement and replacement cost endorsement with respect to the Improvements and personal property contained therein waiving all co-insurance provisions; (C) providing that the deductible not exceed Twenty-Five Thousand Dollars ($25,000.00); and (D) containing Demolition Costs, Increased Cost of Construction and “Ordinance or Law Coverage” or “Enforcement” endorsements in amounts satisfactory to Lender if any of the Improvements or the use of the Collateral shall at any time constitute legal non-conforming structures or uses or the ability to rebuild the Improvements is restricted or prohibited. The Full Replacement Cost may be redetermined from time to time by an appraiser or contractor designated and paid by Lender or by an engineer or appraiser in the regular employ of the insurer. No omission on the part of Lender to request any such appraisals shall relieve Borrower of any obligations under this subsection;

 

 

 

 

(ii)           if Borrower leases the Premises and upon Lender’s request, rent or business interruption or use and occupancy insurance, on such basis and in such amounts as shall be satisfactory to Lender, and in any event not less than an amount equal to one (1) year’s total income from the Premises and the Improvements, including, but not limited to, all rent and all other income such as lessee reimbursement of operating expenses, with the amount to be determined each year based on Borrower’s reasonable estimate of such income for the succeeding twelve (12) month period;

 

(iii)           flood insurance if any portion of the Improvements is currently or at any time in the future located in an area identified by the Secretary of Housing and Urban Development, or any successor, as an area having special flood, mudslide and flood-related erosion hazards and in which flood insurance has been made available under the National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973, as amended, modified, supplemented, or replaced from time to time;

 

(iv)           commercial general liability insurance on an [occurrence]1 basis covering Borrower and Lender against claims for bodily injury, death, property damage and personal injury occurring in, upon, or about or resulting from the Premises, the Improvements, or any other Collateral, or any street, drive, sidewalk, curb, or passageway adjacent thereto, in standard form and with such coverages and in such minimum amounts and with such minimum limits as may be reasonably acceptable to Lender;

 

 

1 Note: Borrower confirming that such policy is on an occurrence basis and not a claims basis.

 

 

 

 

 

 

(v)           worker’s compensation, subject to the statutory limits of the state in which the Premises is located, and employer’s liability insurance with a limit of at least $1,000,000 per accident and per disease per employee, and $1,000,000 per disease policy limit in respect of any work or operations on or about the Premises, or in connection with the Improvements or any other Collateral or its operation (if applicable); and

(vi)           such other insurance in such form and in such amounts as may from time to time be required by Lender against other insurable hazards and casualties which at the time are commonly insured against in the case of properties of similar character and location to the Premises and the Improvements.

 

(e)           Approval Not Warranty. No approval by Lender of any insurer shall be construed to be a representation, certification, or warranty of its solvency, and no approval by Lender as to the amount, type, and/or form of any insurance shall be construed to be a representation, certification, or warranty of its sufficiency.

 

 

 

 

 

Section 3.7  Damage and Destruction of Collateral.

 

(a)            Borro wer ’s Obligations . In the event of any damage to or loss or destruction of the Collateral, (i) Borrower shall promptly notify Lender of such event and take such steps as shall be necessary to preserve any undamaged portion of the Collateral and (ii) if, pursuant to Section 3.7(b), the insurance proceeds are applied to the restoration, replacement, or rebuilding of such Collateral (but regardless whether such insurance proceeds, if any, shall be sufficient for the purpose), Borrower shall promptly (and, in any event, prior to the date on which any lessee under any Lease shall be entitled to cancel or terminate said Lease because of any such damage, loss or destruction) commence and diligently pursue to completion the restoration, replacement, and rebuilding of the Collateral as nearly as possible to its value, condition, and character immediately prior to such damage, loss, or destruction and in accordance with plans and specifications approved, and with other provisions for the preservation of the security hereunder established, by Lender.

(b)            Lend er's Rights; Application of Proceeds . In the event that any portion of the Collateral is so damaged, destroyed, or lost, and such damage, destruction, or loss is covered, in whole or in part, by insurance described in Section 3.6, then (i) Lender may, but shall not be obligated to, make proof of loss if not made promptly by Borrower and is hereby authorized and empowered by Borrower to settle, adjust, or compromise any claims for damage, destruction, or loss thereunder; (ii) each insurance company concerned is hereby authorized and directed to make payment therefor directly to Lender; and (iii) Lender shall have the right to apply the insurance proceeds, first, to reimburse Lender for all costs and expenses, including adjustors' and attorneys' fees and disbursements, incurred in connection with the collection of such proceeds and, second, the remainder of such proceeds shall be applied, at Lender's option, either (A) in payment of all or any part of the Obligations, whether or not then due and payable, in the order and manner determined by Lender (provided that to the extent that any Obligation shall remain outstanding after such application, such unpaid Obligation shall continue in full force and effect and Borrower shall not be excused in the payment thereof), or to the cure of any then current default hereunder; or (B) to the restoration, replacement, or rebuilding, in whole or in part, of the portion of the Collateral so damaged, destroyed, or lost, provided that any insurance proceeds held by Lender to be applied to the restoration, replacement, or rebuilding of the Premises shall be so held without payment or allowance of interest thereon and shall be paid out from time to time upon compliance by Borrower with such provisions and requirements as may be imposed by Lender.  Notwithstanding  the  above,  after  reimbursement  of  Lender  for  all  costs  and expenses, including adjustors' and reasonable attorneys' fees and disbursements, incurred in connection with the collection of such proceeds, the Lender shall allow Borrower to use the insurance proceeds for the restoration or replacement of the Collateral provided that (i) the proceeds total less than $50,000 for any single event of loss, or (ii) Lender shall reasonably determine that (a) the restoration or replacement of the Collateral can be completed prior to the Maturity Date (as defined in the Loan Agreement), (b) that the insurance proceeds will be sufficient to complete the restoration or, if the amount of the insurance proceeds is not sufficient to restore or replace the Collateral, Borrower deposits with Lender an amount equal to the difference between Lender's estimated costs of such restoration or replacement and the amount of the insurance proceeds, and (c) the Collateral will be restored or replaced such that the fair market value (as reasonably determined by Lender) of the Collateral shall be at least equal to the pre-casualty value. In the event that Borrower shall have received all or any portion of such insurance proceeds, or any other proceeds in respect of such damage or destruction, Borrower, upon demand from Lender, shall pay to Lender an amount equal to the amount so received by Borrower, to be applied pursuant to this section. Notwithstanding anything herein or at law or in equity to the contrary, none of the insurance proceeds or payments in lieu thereof paid to Lender as herein provided shall be deemed trust funds, and Lender shall be entitled to dispose of such proceeds as provided in this Section. Borrower expressly assumes all risk of loss, including a decrease in the use, enjoyment, or value of the Collateral, from any casualty whatsoever, whether or not insurable or insured against.

Section 3.8  Condemnation.

 

(a)            Borrower’s Obligations ; Proceedings . Promptly upon obtaining knowledge of any pending or threatened institution of any proceedings for the condemnation of the Collateral, or any part or interest therein, or of any right of eminent domain, or of any other proceedings arising out of injury or damage to or decrease in the value of the Collateral (including any change in any street, whether as to grade, access, or otherwise), or any part thereof or interest therein, Borrower will notify Lender of the threat or pendency thereof. Lender may participate in any such proceedings (but shall not be obligated to do so), and Borrower from time to time will execute and deliver to Lender all instruments requested by Lender or as may be required to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings, shall deliver to Lender copies of all papers served in connection therewith, and shall consult and cooperate with Lender, its attorneys and agents, in the carrying on and defense of any such proceedings; provided that no settlement of any such proceeding shall be made by Borrower without Lender’s prior written consent.

 

 

 

 

 

 

 

(d)           Effect on the Obligations. Notwithstanding any condemnation, taking, or other proceeding referred to in this Section causing injury to or decrease in value of the Collateral (including a change in any street, whether as to grade, access, or otherwise), or any interest therein, Borrower shall continue to pay and perform the Obligations as provided herein. Any reduction in the Obligations resulting from such application shall be deemed to take effect only on the date of receipt by Lender of such proceeds, judgments, decrees or awards and application against the Obligations, provided that if prior to the receipt by Lender of such proceeds, judgments, decrees, or awards, the Collateral shall have been sold on foreclosure of this Security Instrument, or shall have been transferred by deed-in-lieu of foreclosure, Lender shall have the right to receive the same to the extent of any deficiency found to be due upon such sale, with legal fees and disbursements incurred by Lender in connection with the collection thereof.

 

Section 3.9  Liens and Liabilities.

 

(a)           Discharge of Liens. Borrower shall pay, bond, or otherwise discharge, from time to time when the same shall become due, all claims and demands of mechanics, materialmen, laborers, and others which, if unpaid, might result in, or permit the creation of, a lien or encumbrance on the Collateral, or on the revenues, rents, issues, income, or profits arising therefrom and, in general, Borrower shall do, or cause to be done, at Borrower’s sole cost and expense, everything necessary to fully preserve the lien and security interest created by this Security Instrument and the priority thereof.

 

(b)           Creation of Liens. Borrower shall not, without Lender’s prior written consent, create, place, or permit to be created or placed, or through any act or failure to act, acquiesce in the placing of, or allow to remain, any deed of trust, mortgage, deed to secure debt, voluntary or involuntary lien, whether statutory, constitutional, or contractual (except for Impositions which are not yet due and payable), security interest, encumbrance or charge, or conditional sale or other title retention document, against or covering the Collateral, prior to, on a parity with, or subordinate to the lien of this Security Instrument, other than Permitted Lien.

 

 

 

 

 

 

Section 3.11  Tax and Insurance Deposits.

 

(a)           Monthly Deposits. Upon Lender’s request after and during the continuance of a Material Adverse Effect or an Event of Default, Borrower shall deposit with Lender in a non-interest bearing account, or at Lender’s request, with its servicing agent, on the first day of each and every month, commencing with the date the next payment of interest and/or principal and interest shall become due under the Note, a deposit to pay the Assessments (as defined in Section 3.3 hereof) and insurance premiums which will next become due on the insurance policies required by this Security Instrument (hereinafter collectively referred to as the “Charges”) in an amount equal to:

 

(i)           One-twelfth (1/12th) of the annual Assessments next to become due upon the Collateral; provided that, with the first such deposit, there shall be deposited in addition an amount as estimated by Lender which, when added to monthly deposits to be made thereafter as provided for herein, shall assure to Lender’s satisfaction that there will be sufficient funds on deposit to pay the Impositions as they come due; plus

 

(b)          Use of Deposits. Except to the extent required by applicable law, all funds so deposited shall, until so applied, constitute additional security for the Obligations, shall be held by Lender in a separate escrow account, shall not be commingled with other funds of Lender, and, provided that no Event of Default (as defined in Section 6.1) shall have occurred and be continuing hereunder, shall be applied in payment of the aforesaid amounts prior to their becoming delinquent, but only to the extent that Lender shall have such funds on hand, provided that Lender shall not have any obligation to use said funds to pay (i) any installment of Assessments prior to the last day on which payment thereof may be made without penalty or interest, or to pay any insurance premium prior to the due date thereof; or (ii) any of the aforesaid amounts unless Lender shall have been furnished with the bills or invoices therefor in sufficient time to pay the same before any penalty or interest attaches and before said policies of insurance lapse, as the case may be. If an Event of Default shall have occurred  and  be continuing hereunder, or if the Obligations shall be accelerated as herein provided, all funds so deposited may, at Lender’s option, be applied to the Obligations in the order determined by Lender or to cure said Event of Default or as provided in this Section. In no event shall Borrower claim any credit against the principal and interest due hereunder for any payment or deposit for taxes or insurance. Neither Lender nor its servicing agent shall be liable for any act or omission made or taken in good faith. In making any payments, Lender or its servicing agent may rely on any statement, bill or estimate procured from or issued by the payee without inquiry into the validity or accuracy of the same. If the taxes shown in the tax statement shall be levied on property more extensive than the Collateral, Lender shall be under no duty to seek a tax division or apportionment of the tax bill, and any payment of taxes based on a larger parcel shall be paid by the Borrower, the deposits to be made hereunder shall be based on the larger tax parcel and the Borrower shall expeditiously cause a tax subdivision to be made.

(c)          Transfer of Security Instrument. Upon an assignment or other transfer of this Security Instrument, Lender shall have the right to pay over the balance of such deposits in its possession to the assignee or other successor, and Lender shall thereupon be completely released from all liability with respect to such deposits, and Borrower or the owner of the Collateral shall look solely to the assignee or transferee with respect thereto.

Section 3.12  Inspection. Borrower shall allow Lender and its authorized representatives, or agents, including third-party property appraisers, environmental engineers, architects, engineers, and Lender’s employees, to enter upon the Collateral and conduct tests and to enter upon and inspect the Collateral, or any part thereof, at all reasonable times and upon reasonable prior notice, except in the event of an emergency when no notice shall be required and subject to the rights of tenants, and shall assist Lender and such representatives or agents in effecting said inspection.

Section 3.13  Records, Reports, and Audits.

 

 

 

 

 

 

(b)           Financial Reports.      Borrower shall furnish or cause to be furnished to Lender the financial statements and reports required by Section 5.6 of the Loan Agreement.

 

Section 3.14  Intentionally Omitted.

 

Section 3.15  Intentionally Omitted.

 

Section 3.16  Intentionally Omitted.

 

Section 3.17 Subordination of Fees. The terms and conditions of all arrangements whereby Borrower, any guarantor, or any person, partnership, corporation, limited liability company or other entity related to or controlled by or under common control with Borrower or any guarantor or in which Borrower, any guarantor, or any member or manager of Borrower has a substantial interest, is or may be entitled to fees or commissions with respect to the Collateral or sales or leases of the Collateral shall be disclosed to Lender, and no payment of any fees or compensation may be made by or on behalf of Borrower to any of such persons or entities without Lender’s prior written consent, until the Loan is fully satisfied.

Section 3.18 Leases of Space. Borrower will, at its own cost and expense, perform, comply with and discharge all of the obligations of Borrower under any leases and use its best efforts to enforce or secure the performance of each obligation and undertaking of the respective tenants under any such leases and will appear in and defend, at its own cost and expense, any action or proceeding arising out of or in any manner connected with the Borrower’s interest in any leases of the Premises. The Borrower will not borrow against, pledge or assign any of Borrower’s rights under the leases or any rentals due thereunder or consent to a subordination or assignment of the interest of the tenants thereunder to any party other than Lender, nor anticipate the rents thereunder for more than one (1) month in advance or reduce the amount of rents and other payments thereunder, nor waive, excuse, condone or in any manner release or discharge the tenants of or from their obligations, covenants, conditions and agreements to be performed, nor to incur any indebtedness to the tenants, nor enter into any additional leases of all or any part of the Premises without the prior written consent of Lender.

 

Section 3.19 Alterations and Renovations. Borrower agrees that, without the prior written consent of Lender, Borrower will not remove or expand any improvements on the Premises, erect any new improvements or make any material alterations in any improvements which will alter the basic structure, adversely affect the market value or change the existing architectural character of the Premises. Borrower agrees that buildings, structures and improvements now or hereafter constructed on or in the Premises or repairs made to the Premises shall be completed in a good and workmanlike manner, in accordance with all applicable governmental laws, regulations, requirements and permits. Borrower agrees not to acquiesce in any rezoning classification, modification or restriction affecting the Premises without the written consent of Lender.

 

 

 

 

 

Section 3.20  Property Management.

 

(a)           Without the prior written consent of the Lender, Borrower shall not (i) enter into a management agreement, (ii) surrender any management agreement, (ii) consent to the assignment by any property manager of its rights, duties or obligations under any management agreement, (iii) terminate or cancel any management agreement, or (iv) modify, change, supplement, alter or amend any management agreement, in any material respect, either orally or in writing.

(b)           Upon the occurrence and during the continuance of an Event of Default, the Lender may require, upon ten (10) Business Days prior written notice to Borrower, that Borrower retain a property manager, or select a new property manager if a property manager then exists, not affiliated with Borrower to manage the Collateral. If such a property manager is so required by the Lender, Borrower shall immediately seek to appoint a property manager acceptable to the Lender. Such newly appointed property manager shall enter into a property management agreement with Borrower satisfactory to the Lender. Borrower shall execute and deliver an Assignment of Management Agreement in form and substance reasonably satisfactory to the Lender, which shall be consented to and acknowledged by such newly appointed property manager.

Section 3.21  Further Acts. Borrower shall do and perform all acts necessary to keep valid and effective the charges and lien hereof, to carry into effect its objective and purposes, and to protect the lawful owner of the Note and the other Obligations. Promptly upon request by Lender, and at Borrower’s expense, Borrower shall execute, acknowledge, and deliver to Lender such other and further instruments and do such other acts as in the reasonable opinion of Lender may be necessary or desirable to (a) grant to Lender the highest available perfected lien on all of the Collateral; (b) correct any defect, error, or omission which may be discovered in the contents of this Security Instrument or any other Loan Document; (c) identify more fully and subject to the liens, encumbrances, and security interests and assignments created hereby any property intended by the terms hereof to be covered hereby (including, without limitation, any renewals, additions, substitutions, replacements, or appurtenances to the Collateral); (d) assure the first priority hereof and thereof subject to the Permitted Liens; and (e) otherwise effect the intent of this Security Instrument.

 

 

 

 

ARTICLE IV.

ADDITIONAL ADVANCES; EXPENSES; INDEMNITY

 

Section 4.1 Additional Advances and Disbursements. Borrower agrees that, if Borrower shall default in any of its Obligations to pay any amount or to perform any action, including its obligation under Section 3.3 to pay Impositions and under Section 3.6 to procure, maintain, and pay premiums on the insurance policies referred to therein, then Lender shall have the right, but not the obligation, in Borrower’s name or in its own name, and without notice to Borrower, to advance all or any part of such amounts or to perform any or all such actions, and, for such purpose and to the extent permitted by applicable law, Borrower expressly grants to Lender, in addition and without prejudice to any other rights and remedies hereunder, the right to enter upon and take possession of the Collateral to such extent and as often as it may deem necessary or desirable to prevent or remedy any such default. No such advance or performance shall be deemed to have cured such default by Borrower or any Event of Default with respect thereto. All sums advanced, all Collection Expenses (as hereinafter defined), and all expenses incurred by Lender in connection with such advances or actions, and all other sums advanced or expenses incurred by Lender hereunder or under applicable law (whether required or optional and whether indemnified hereunder or not) shall be part of the Obligations, shall bear interest at the rate stated in the Note for payments from and after maturity (the “Default Rate”), and shall be secured by this Security Instrument. Lender, upon making any such advance, shall be subrogated to all of the rights of the person receiving such advance.

Section 4.2 Other Expenses.

 

(a)           Borrower shall pay or, on demand, reimburse Lender for the payment of all appraisal fees, recording and filing fees, taxes, brokerage fees and commissions, abstract fees, title insurance premiums and fees, Uniform Commercial Code search fees, escrow fees, attorneys’ fees and disbursements, and all other costs and expenses of every character incurred by Borrower or Lender in connection with the granting, administration, enforcement, and closing (including the preparation of the Loan Documents) of the transactions contemplated hereunder or under the other Loan Documents, or otherwise attributable or chargeable to Borrower as owner of the Collateral. Lender shall have the right to obtain from time to time, at Borrower’s cost and expense, appraisals of the Collateral, provided that so long as no Event of Default shall have occurred which continues, Borrower shall only be obligated to pay for the costs and expenses associated with one such appraisal during any twelve (12) month period.

Section 4.3 Indemnity. Borrower agrees to indemnify and hold harmless  Lender from and against any and all losses, liabilities, suits, obligations, fines, damages, judgments, penalties, claims, charges, costs, and expenses (including attorneys’ fees and disbursements) which may be imposed on, incurred or paid by or asserted against Lender by reason or on account of, or in connection with, (i) any default or Event of Default by Borrower hereunder or under the other Loan Documents; (ii) Lender’s exercise of any of its rights and remedies, or the performance of any of its duties, hereunder or under the other Loan Documents to which Borrower is a party; (iii) the construction, reconstruction, restoration, or alteration of the Collateral or any part thereof; (iv) any negligence or willful misconduct of Borrower, any lessee of the Premises, or any of their respective agents, contractors, subcontractors, servants, employees, licensees, or invitees; (v) any accident, injury, death or damage to any person or property occurring in, on, or about the Premises or the Improvements, or any street, drive, sidewalk, curb, or passageway adjacent thereto; or (vi) any other transaction arising out of or in any way connected with the Collateral (or any part thereof) or the Loan Documents, provided, however, that any such indemnity provided herein above shall not apply to any such losses, claims, damages, liabilities or related expenses to the extent that they result solely from the gross negligence or willful misconduct of the Lender. Any amount payable to Lender under this Section shall be deemed a demand obligation, shall be part of the Obligations, shall bear interest at the Default Rate, and shall be secured by this Security Instrument.

 

 

 

 

 

 

ARTICLE V.

 

UNIFORM COMMERCIAL CODE

 

 

 

(a)           Borrower hereby irrevocably authorizes Lender at any time and from time to time to file in any filing office in any Code jurisdiction any initial financing statements and amendments thereto to perfect and preserve Lender's interest in the Collateral in a manner consistent with the term as defined, in this Security Instrument and including information relating to whether Borrower is an organization, the type of organization and any organizational identification number issued to Borrower. Borrower agrees to provide any such information to Lender promptly upon request. Borrower also ratifies its authorization for Lender to have filed in any filing office in any Code jurisdiction any like initial financing statements or amendments thereto if filed prior to the date hereof. Borrower shall pay to Lender, from time to time, upon demand, any and all costs and expenses incurred by Lender in connection with the filing of any such initial financing statements and amendments, including attorneys' fees and all disbursements. Such costs and expenses shall bear interest at the Default Rate from the date paid by Lender until the date repaid by Borrower, and such costs and expenses, together with such interest, shall be part of the Obligations and shall be secured by this Security Instrument.

(b)           Subject to the rights of the holders of any Permitted Liens, Borrower shall any time and from time to time take such steps as Lender may reasonably request for Lender to obtain “control” of any Personal Property for which control is a permitted or required method to perfect, or to insure priority of, the security interest in such Personal Property granted herein.

(c)           Upon the occurrence and during the continuance of an Event of Default, Lender shall have the rights and remedies of a secured party under the Code as well as all other rights and remedies available at law or in equity or under this Security Instrument.

(d)           Terms defined in the Code and not otherwise defined in this Security Instrument shall have the same meanings in this Paragraph as are set forth in the Code. In the event that a term is used in Article 9 of the Code and also in another Article, the term used in this Paragraph is that used in Article 9. The term “control,” as used in this Paragraph, has the meaning given in Section 9-104, 9-105, 9-106 or 9-107 of Article 9, as applicable.

(e)           It is intended by Borrower and Lender that this Security Instrument be effective as a financing statement filed in the real estate records of Worcester County, Massachusetts as a fixture filing covering the Personal Property. A description of the Premises which relates to the Personal Property is set forth in Exhibit B attached hereto.

 

(f)           The information in the subsections below this paragraph is provided in connection with the filing of this Security Instrument as a financing statement as referred to above, and the Borrower hereby represents and warrants such information to be true and complete as of the date of this Security Instrument.

(h)           The Borrower is the record owner of the real estate described in this Security Instrument. The name and mailing address of the record owner of the real estate described in this Security Instrument is set forth in the first paragraph of this Security Instrument.

(i)           For purposes of the Code, Borrower is the Debtor. The name, mailing address, type of organization and state of formation of the Debtor (Borrower) is set forth in the first paragraph of this Security Instrument. The Organizational Identification Number of the Borrower is in the State of Delaware is 3528957.

 

 

 

 

 

 

 

 

	Revere High Yield Fund, LP
	105 Rowayton Avenue
	Rowayton, Connecticut 06853
	Attn: Clark Briner

 

 

 

(a)           if Borrower shall fail to pay when the same shall become due and payable any sum required to be paid under the Note, hereunder or under any other Loan Document, whether of principal, interest, premium, fees, or otherwise; or

(b)           if any representation made herein, in the Loan Agreement or in any other Loan Document (including any certificate delivered in connection with any of the foregoing), or otherwise made by or on behalf of Borrower or any Guarantor in connection with the transactions contemplated under the Loan Documents, shall be false or misleading in any material respect when made; or

(c)           the Collateral (or any part thereof), or any legal, beneficial, or equitable interest therein, shall be sold, transferred, or encumbered in any way in violation of this Security Instrument or any other Loan Document; or

(d)           if Borrower or any Guarantor shall fail to perform any other term, covenant or agreement contained in any of the other Loan Documents after any applicable grace period contained therein or any “Event of Default” as defined or described in the Note, the Loan Agreement or any of the other Loan Documents occurs and is then continuing; or

 

(e)           if Borrower abandons the Premises or the Improvements; or

(f)           if Borrower shall fail at any time to obtain, provide, maintain, keep in force, or deliver to Lender the insurance policies required by this Security Instrument and such failure shall continue for two (2) days after written notice from Lender; or

 

(g)           if any claim of priority (except a claim based upon a Permitted Lien) to this Security Instrument or any other document or instrument securing the Obligations by title, lien, or otherwise shall be upheld by any court of competent jurisdiction and such claim is not discharged, satisfied, vacated or bonded within twenty (20) days after entry, or shall be consented to by Borrower; or

 

 

 

 

 

(h)           if Borrower or any Guarantor or any member or partner of Borrower or any Guarantor, or any maker, guarantor or surety of the Note shall make an assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts as they become due, or fail to pay its debts as they become due; or shall file a petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall file a petition seeking any reorganization, dissolution, liquidation, arrangement, composition, readjustment or similar relief under any present or future bankruptcy or insolvency statute, law or regulation or shall file an answer admitting to or not contesting the material allegations of a petition filed against it in such proceedings, or shall not within sixty (60) days after the filing of such a petition have the same dismissed or vacated, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of a material part of its properties, or shall not within sixty (60) days after the appointment of a trustee, receiver or liquidator of any material part of its properties without Lender's consent have such appointment vacated; or

 

(i)           if default shall be made in the performance or observance of any provision contained in this Security Instrument other than those referred in (a) through (i) above, beyond the applicable grace period therefor or, if no such grace period is applicable, if the default has not been remedied within thirty (30) days after the occurrence thereof; or

(j)           if any “Event of Default” as defined or described in any other Loan Document occurs and is then continuing.

 

Section 6.2  Remedies. Upon the occurrence and during the continuance of any one or more Events of Default, Lender may (but shall not be obligated to), by Lender itself otherwise, in addition to any rights or remedies available to it hereunder or under the other Loan Documents, take such action, personally or by its agents or attorneys, with or without entry and without notice, demand, presentment, or protest (each and all of which are hereby waived), as it deems necessary or advisable to protect and enforce Lender’s rights and remedies against Borrower and in and to the Collateral, including, without limitation, the following actions, each of which may be pursued concurrently or otherwise, at such time and in such order as Lender may determine, in its sole discretion, without impairing or otherwise affecting its rights or remedies:

(a)          declare the entire balance of the Obligations (including the entire principal balance thereof, all accrued and unpaid interest, and any premium and late charges thereon, and all other such sums secured hereby) to be immediately due and payable, and upon any such declaration the entire unpaid balance of the Obligations shall become and be immediately due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by Borrower, anything in the Loan Documents to the contrary notwithstanding.

 

(b)          institute a proceeding or proceedings, judicial, or nonjudicial, by advertisement or otherwise, for the complete or partial foreclosure of this Security Instrument or the complete or partial sale of the Collateral under the power or sale or under any applicable provision of law. Lender may sell the Collateral, and all estate, right, title, interest, claim and demand of Borrower therein, and all rights of redemption thereof, at one or more sales, as an entirety or in parcels, with such elements of real and/or personal property, and at such time or place and upon such terms as it may deem expedient, or as may be required by applicable law, and in the event of a sale, by foreclosure or otherwise, of less than all of the Collateral, this Security Instrument shall continue as a lien and security interest on the remaining portion of the Collateral.

 

(c)           Intentionally Omitted.

(d)          to the extent permitted under applicable law, Lender may elect to treat the fixtures included in the Collateral either as real property or as personal property, or both, and proceed to exercise such rights as apply thereto.

(e)           institute an action, suit, or proceeding in equity for the specific performance of any of the provisions contained in the Loan Documents.

(f)           apply for the appointment of a receiver, custodian, trustee, liquidator, or conservator of the Collateral, to be vested with the fullest powers permitted under applicable law, as a matter of right and without regard to or the necessity to disprove the adequacy of the security for the Obligations or the solvency of Borrower or any other person liable for the payment of the Obligations, and Borrower and each other person so liable waives or shall be deemed to have waived such necessity, and consents or shall be deemed to have consented to such appointment.

 

 

 

 

 

(h)          subject to the provisions and restrictions of any applicable law, Lender may, with or without entrance upon or taking possession of the Premises, collect, receive, sue for, and recover in its own name all Rents and cash collateral derived from the Premises, and after deducting therefrom all costs, expenses, and liabilities of every character incurred by Lender in collecting the same and in using, operating, managing, preserving, and controlling the Premises, and otherwise in exercising Lender’s rights under subsection (f) of this Section, including all amounts necessary to pay Impositions, insurance premiums, and other charges in connection with the Premises, as well as compensation for the services of Lender and its attorneys, agents, and employees, apply the remainder to the Obligations in the order and manner determined by Lender.

(i)            release any portion of the Collateral for such consideration as Lender may require without, as to the remainder of the Collateral, in any way impairing or affecting the lien or priority of this Security Instrument, or improving the position of any subordinate lienholder with respect thereto, except to the extent that the Obligations shall have been reduced by the actual monetary consideration, if any, received by Lender for such release, and may accept by assignment, pledge, or otherwise any other property in place thereof as Lender may require without being accountable for so doing to any other lienholder.

(j)           Lender may take all actions permitted under the Uniform Commercial Code of the jurisdiction in which the Collateral is located; or

(k)          Lender may take any other action, or pursue any other right or remedy, as Lender may have under applicable law, and Borrower does hereby agree that Lender may so act.

In the event that Lender shall exercise any of the rights or remedies set forth in subsections (g) and (h) of this Section, Lender shall not be deemed to have entered upon or taken possession of the Collateral except upon the exercise of its option to do so, evidenced by its demand and overt act for such purpose, nor shall it be deemed a beneficiary or mortgagee in possession by reason of such entry or taking possession. Lender shall not be liable to account for any action taken pursuant to any such exercise other than for rents actually received by such party, nor liable for any loss sustained by Borrower resulting from any failure to let any portion of the Collateral, or from any other act or omission of Lender except to the extent such loss is caused by the willful misconduct, negligence or bad faith of such party. Borrower hereby consents to, ratifies, and confirms the exercise by Lender of said rights and remedies, and appoints Lender as its attorney-in-fact, which appointment shall be deemed to be coupled with an interest and irrevocable, for such purposes.

 

Section 6.3  Expenses. In any proceeding, judicial or otherwise, to foreclose this Security Instrument or enforce any other remedy of Lender under the Loan Documents, there shall be allowed and included as an addition to and a part of the Obligations in the decree for sale or other judgment or decree all Collection Expenses and all other expenditures and expenses, including reasonable attorneys’ fees, which may be paid or incurred in connection with the exercise by Lender of any of its rights and remedies provided or referred to in Section 6.2, or any comparable provision of any other Loan Document, together with interest thereon at the rate specified in the Note, and the same shall be part of the Obligations and shall be secured by this Security Instrument.

 

 

 

 

 

 

Section 6.4  Additional Provisions as to Remedies.

 

(a)           No right or remedy herein conferred upon or reserved to Lender is intended to be exclusive of any other right or remedy, and each and every such right or remedy shall be cumulative and continuing, shall be in addition to every other right or remedy given hereunder, or under the other Loan Documents or now or hereafter existing at law or in equity, and may be exercised from time to time and as often as may be deemed expedient by Lender.

(b)           No delay or omission by Lender to exercise any right or remedy hereunder upon any default or Event of Default shall impair such exercise, or be construed to be a waiver of any such default or Event of Default, or an acquiescence therein.

(c)           The failure, refusal, or waiver by Lender of its right to assert any right or remedy hereunder upon any default or Event of Default or other occurrence shall not be construed as waiving such right or remedy upon any other or subsequent default or Event of Default or other occurrence.

(d)           Lender shall not have any obligation to pursue any rights or remedies it may have under any other agreement prior to pursuing its rights or remedies hereunder or under the other Loan Documents.

(e)           No recovery of any judgment by Lender and no levy of an execution upon the Collateral (or any part thereof) or any other property of Borrower shall affect, in any manner or to any extent, the lien and security interest created by this Security Instrument upon and in the Collateral, or any liens, security interests, rights, powers, or remedies of Lender hereunder, and such liens, rights, powers, and remedies shall continue unimpaired as before.

(f)            Lender may resort to any security given by this Security Instrument or any other security now given or hereafter existing to secure the Obligations, in whole or in part, in such portions and in such order as Lender may deem advisable, and no such action shall be construed as a waiver of any of the liens, rights, or benefits granted hereunder.

(h)           In the event that Lender shall have proceeded to enforce any right or remedy hereunder by foreclosure, sale, entry, or otherwise, and such proceeding shall be discontinued, abandoned, or determined adversely for any reason, then Borrower and Lender shall be restored to their former positions and rights hereunder with respect to the Collateral, subject to the lien and security interest hereof.

ARTICLE VII.

 

ADDITIONAL PROVISIONS

 

Section 7.2  Disclosure of Financial Information. Lender is hereby authorized to disclose any financial or other information about Borrower or any guarantors to any regulatory body or agency having jurisdiction over Lender or to any present, future or prospective participant or successor in interest in any loan or other financial accommodation made by Lender to Borrower, provided that, prior to receipt of any such information any participant or successor in interest shall agree in writing to treat such information in a confidential manner. The information provided may include, without limitation, amounts, terms, balances, payment history, return item history and any financial or other information about Borrower.

Section 7.3  Severability. If all or any portion of any provision of this Security Instrument or the other Loan Documents shall be held to be invalid, illegal, or unenforceable in any respect, then such invalidity, illegality, or unenforceability shall not affect any other provision hereof or thereof, and such provision shall be limited and construed in such jurisdiction as if such invalid, illegal, or unenforceable provision, or portion thereof, were not contained herein or therein.

Section 7.4  Notices. Any notice, demand, consent, approval, direction, agreement, or other communication (any “Notice”) required or permitted hereunder or under the other Loan Documents shall be in writing and shall be addressed as follows to the person entitled to receive the same:

 

 

 

 

 

 

 

 

(a)  If to Borrower:
	Ranor, Inc.
	1 Bella Drive
	Westminster, Massachusetts 01473
	with a copy to:
	William A. Scari, Jr.
	Pepper Hamilton LLP
	400 Berwyn Park
	899 Cassatt Road
	Berwyn, PA 19312-1183
(b)  If to Lender:
	Revere High Yield Fund, LP
	105 Rowayton Avenue, Suite 100
	Rowayton, Connecticut 06853
	with a copy to:
	Mayo Crowe LLC
	CityPlace II
	185 Asylum Street
	Hartford, Connecticut 06103
	Attn: William R.

Any Notice required to be made under this Security Instrument shall comply with the requirements of this Section. Each Notice shall be in writing and sent (a) by certified mail, return receipt requested, or (b) sent by an overnight carrier which provides for a return receipt. Each Notice shall be effective upon receipt. Rejection or other refusal by the addressee to accept or receipt the delivery, or the inability to deliver because of a changed address of which no Notice was given, shall be deemed to be the receipt of the notice sent. Any party shall have the right from time to time to change the address or individual’s attention to which Notices to it shall be sent by giving the other party at least ten (10) days’ prior notice thereof.

Section 7.5  Applicable Law. This Security Instrument shall be governed by and construed in accordance with the law of the Commonwealth of Massachusetts without regard to principles of conflict of laws.

Section 7.7  Matters to be in Writing. This Security Instrument cannot be altered, amended, modified, terminated, or discharged except in a writing signed by the party against whom enforcement of such alteration, amendment, modification, termination, or discharge is sought. No waiver, release, or other forbearance by Lender will be effective against Lender unless it is in a writing signed by Lender, and then only to the extent expressly stated.

 

 

 

 

Section 7.8  Submission to Jurisdiction.  Without limiting the right of Lender to bring any action or proceeding against the undersigned or its property arising out of or relating to the Obligations (an “Action”) in the courts of other jurisdictions, Borrower hereby irrevocably submits to the jurisdiction of any state court or federal court sitting in the Commonwealth of Massachusetts, and Borrower hereby irrevocably agrees that any Action may be heard and determined in such state court or in such federal court. Borrower hereby irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of any Action in such jurisdiction. Borrower hereby irrevocably agrees that the summons and complaint or any other process in any Action in any jurisdiction may be served by mailing by certified mail to any of the addresses set forth herein or by hand-delivery to a person of suitable age and discretion at any such address. Such service will be complete on the date such process is so mailed or delivered, and Borrower will have thirty (30) days from such completion of service in which to respond in the manner provided by law. Borrower may also be served in any other manner permitted by law, in which event Borrower’s time to respond shall be as provided by law.

Section 7.9  Construction of Provisions. The following rules of construction shall be applicable for all purposes of this Security Instrument, and all documents or instruments supplemental hereto, unless the context otherwise requires:

 

(a)           All references herein to numbered Articles or Sections or to lettered Exhibits are references to the Articles and Sections hereof and the Exhibits annexed to this Security Instrument, unless expressly otherwise designated in context.

(b)           The terms “include,” “including,” and similar terms shall be construed as if followed by the phrase “without being limited to.”

 

(c)           The term “Collateral” and the term “Premises” shall be construed as if followed by the phrase “or any part thereof.”

(d)           The term “Obligations” shall be construed as if followed by the phrase “or any other sums secured hereby, or any part thereof.”

 

(e)           Words of masculine, feminine, or neuter gender shall mean and include the correlative words of the other genders, and words importing the singular number shall mean and include the plural number, and vice versa.

(f)           The term “person” shall include natural persons, firms, partnerships, corporations, and any other public and private legal entities.

(g)           All Article, Section, and Exhibit captions herein are used for convenience and reference only and in no way define, limit, or describe the scope or intent of, or in any way affect, this Security Instrument.

Section 7.10  Successors and Assigns. The provisions hereof shall be binding upon Borrower, and the heirs, devisees, representatives, successors, and assigns of Borrower, including successors in interest of Borrower in and to all or any part of the Collateral, and shall inure to the benefit of Lender and its heirs, successors, substitutes, and assigns. All references in this Security Instrument to Borrower or Lender shall be construed as including all of such other persons with respect to the person referred to. Where two or more persons have executed this Security Instrument, the obligations of such persons shall be joint and several, except to the extent the context clearly indicates otherwise.

 

 

 

 

 

Exhibit A

 

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Loan Policy No.: 27307-14-0153TN-FN

Office File No.: 14-0153TN-FN(MA)

A certain tract of land situated in Westminster, Worcester County, Massachusetts and on the northeasterly side of Route 2, bounded and described as follows:

Beginning at a Massachusetts Highway Bound on the northeasterly sideline of Massachusetts Highway Route 2, the same being a point on the southwesterly line of the property herein described:

Thence running N 67 degrees 11' 12" E a distance of one hundred eighty three and 14/100 feet (183.14') to a point;

Thence running along a curve to the right with a radius of nine thousand, six hundred eighty and 00/100 feet (9,680') and an arc-length of three hundred thirty eight and 84/100 feet (338. 84') to a point;

Thence turning and running S 51 degrees 15' 52" E a distance of eight Hundred Five and 00/100 feet (805.00') to a point, the previous three courses running along said Route 2;

Thence turning and running N 43 degrees 29' 19" E a distance of three hundred seventy three and 45/100 feet (373.45') to a point;

Thence turning and running N 43 degrees 20' 01" W a distance of four hundred ten and 55/100 feet (410.55') to a point;

Thence turning and running N 43 degrees 42' 52" W a distance of three hundred filly two c;ii1d 99/100 feet (352.99') to a point;

Thence turning and running N 44 degrees 39' 47" W a distance of one hundred sixty eight and 27/100 feet (168.27') to a point;

Thence turning and running N 43 degrees 32' 02" E a distance of three hundred forty two and 95/100 feet (342.95') to a point,

Thence turning and running S 47 degrees 05' 15" E a distance of one hundred thirty two and 91/100 feet (132.91') to a point;

Thence turning and running N 41 degrees 21' 42" E a distance of one hundred ten and 29/100 feet (110.29') to a point;

Thence turning and running S 56 degrees 08' 09" E a distance of two hundred twenty and 97/100 feet (220.97') to a point;

Thence turning and running S 40 degrees 26' 57" E a distance of three hundre.d thirty five and 45/100 feet (335.45') to a poiht, the previous teh courses running along land now or formerly of Elizabeth Ann Nyman;

Thence turning and running N 41 degrees 38' 44" E a distance of two hundred ninety one and 02/100 feet (291.02') along land now or formerly of Michael and Judith Denzer to a point;

 

 

 

 

Thence turning and running N 29 degrees 33' 07'' W a distance of two hundred five and 15/100 feet (205.15') to a point;

Thence turning and running N 40 degrees 35' 11" W a distance of one hundred four and 07/100 feet (104.07') to a point;

Thence turning and running N 42 degrees 28' 54" W a distance of one hundred twenty nine and 16/100 feet (129.16') to a point;

Thence turning and running N 35 degrees 39' 06" W a distance of one hundred eighty eight and 65/100 feet (188.65') to a point;

Thence turning and running N 31 degrees 06' 51" W a distance of two hundred fifty one and 14/100 feet (251.14') to a point;

Thence turning and running N 27 degrees 26' 04" W a distance of sixty one and 15/100 feet (61.15') to a point;

Thence turning and running N 22 degrees 54' 11" W a distance of one hundred forty eight and 62/100 feet (148.62') to a point;

Thence turning and running N 26 degrees 52' 49" W a distance of one hundred eleven and 39/100 feet (111.39') to a point, the previous eight courses running along the westerly sideline of Town Farm Road;

Thence turning and running S 66 degrees 40' 26" W a distance of eighty nine and 96/100 feet (89.96') to a point;

Whence turning and running N 45 degrees 34' 34" W a distance of thirty two and 83/100 feet (32.83') to a point;

Thence turning and running N 55 degrees 49' 30" W a distance of one hundred thirty five and 24/100 feet (135.24') to a point;

Thence turning and running N 63 degrees 22' 02" W a distance of one hundred seven and 27/100 feet (107.27') to a point;

Thence turning and running N 15 degrees 12' 22" W a distance of one hundred ninety two and 38/100 feet (192.38') to a point;

Thence turning and running N 17 degrees 50' 41" W a distance of seventy seven and 59/100 feet (77.59') to a point;

Thence' turning and running N 17 degrees 27' 14" W a distance of thirty two and 29/100 feet (32.29') to a point, the previous seven courses running along land now or formerly of John and Donna Menger:

 

 

 

 

Thence turning and running N 52 degrees 28' 25" W a distance of one hundred two and 96/100 feet (102.96') to a point;  ·

Thence turning and running N 40 degrees 22' 19" W a distance of two hundred sixty one and 03/100 feet (261.03') to a point, the previous two courses running along land now or formerly of Charles Smith, M.;

Thence turning and running S 42 degrees 58' 02" W a distance of ninety five and 70/100 feet (95.70') along land now or formerly of Diane Hubbard; to a point;

Thence turning and running S 45 degrees 45' 11"W a distance of five hundred seventy nine and 39/100 feet (579. 39') along land now or formerly of Von Alan and Carol Saimi, to a point;

Thence turning and running S 42 degrees 41' 35" W a distance of sixty six and 93/100 feet (66.93') to a point;

Thence turning and running S 47 degrees 25' 31" E a distance of three hundred eighty and 54/100 feet (380. 54') to a point, the previous two courses running along land now or formerly of Von Alan and Carol Saimi and land now or formerly of Dorothy Hicks;

Thence turning and running S 44 degrees 18' 02" W a distance of two hundred eighty four and 79/100 feet (284.79') to a point;

Thence turning and running S 43 degrees 45' 40" W a distance of two hundred ninety seven and 48/100 feet (297.48') to a point, the previous two courses running along land now or formerly of John Trembley Trustee;

Thence turning and running S 43 degrees 11' 23" W a distance of two hundred forty three and 10/100 feet (243.1O') along land now or formerly of Keith Honkala, to a point;

Thence turning and running S 28 degrees 07' 12" W a distance of three hundred twenty six and 61/100 feet(326.61') along land now or formerly of Robert and Dorothy Sands, to a point on the northeasterly sideline of said Route 2;

Thence turning and running S 53 degrees 12' 03" E a distance ofone hundred ninety seven and 00/100 feet (197.00') to a point;

Thence turning and running N 36 degrees 47'57" E a distance of ten and 00/100 feet (10.00') to a point;

Thence turning and running N 53 degrees 12' 03" E a distance of two hundred thirty eight and 95/100 feet (238.95') to a point;

Thence turning and running along a curve to the left with a radius of nine thousand eight hundred twenty five and 00/100 feet (9825.00') with an arc length of sixty one and 05/100 feet (61.05') to a point;

Thence turning and running S 36 degrees 47' 57'' W a distance of ten and 00/100 feet (10.00') to a point;

 

 

Thence turning and running along a curve to the left with a radius of nine thousand eight hundred thirty five and 00/100 feet (9835.00') with an arc length of one hundred ninety eight and 00/100 feet (198.00') to the point of beginning. The previous six courses running along said Route 2.

The parcel herein described contains 2,662,834 square feet (61.1303 acres).

Said locus is shown on a plan entitled "Plan of Property for Robert A Normandin, Westminster, Mass" dated June 1973 and revised August 1973, by Allen G. Davis, C.E., and recorded with Worcester Northern District Registry of Deeds in Plan Book 180, Page21.  ·

Excepting therefrom Lot 1 as shown on a plan of land entitled "Plan of Land in Westminster, MA Knowri As 48 Town Farm Road Subdivision For: W.M Realty Management Inc" Dated January 18, 2011 Scale 1"

= 50' By Bradford Engineering Co. and recorded in the Worcester County (Northern District) Registry of

Deeds in Book of Plans 492, Page 7.

Said excepted parcel being more particularly bounded and described as follows:

All that certain piece or parcel of land situated in the Town of Westminster, North Worcester County, State of Massachusetts, on the southwestern side of Town Farm Road, and shown as Lot 1 on a map or plan entitled "PLAN OF LAND IN WESTMINSTER, MA KNOWN AS 48 TOWN FARM ROAD, SUBDIVISION, W.M. REALTY MANAGEMENT INC., DATE JANUARY 18, 2011, BRADFORD ENGINEERING CO. 3 WASHINGTON SQ. HAVERHILL MA 01830 SHEET 1 OF 1 SCALE 1" = 50"' and filed in the Worcester North Registry of Deeds in Book of Plans 492, Page 7 being more particularly bounded and described as follows:

Beginning at an iron pin on the southwesterly side of Town Farm Road being the same point on the northeasterly line of the property herein described,

thence running S 41° 38' 44" W a distance of 291.02 feet to a bolt;

thence turning and running N 40° 26' 57" W a distance of 335.45 feet to a point;

 

thence turning and running N 56° 08' 09" W a distance of 220.97 feet to a point;

 

thence turning and running N 59° 53' 01" E a distance of 369.94 feetto a point;

 

thence turning and running S 42° 28' 54" E a distance of 129.16 feet to a point;

 

thence turning and running S 40° 35' 11"Ea distance of 104.07 feet to a point;

 

thence turning and running S 29° 33' 07'' E a distance of 205.15 feet to the point and place of beginning.

 

Said parcel containing 154,670 S.F. 3.55 AC.

 

 

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EXHIBIT A - LEGAL DESCRIPTION

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