AFTER DATE, FOR VALUE RECEIVED, the Undersigned,
Tradeport Development III, LLC, a Connecticut limited liability
company, having a usual place of business at 204 West Newberry
Road, Bloomfield, Connecticut (the "Borrower"), promises
to pay to Berkshire Bank, a Massachusetts banking corporation,
("Lender"), or order, at the Lender's main office presently located
at 31 Court Street, Westfield, Massachusetts, or at such other
place as Lender may designate in writing, the maximum principal sum
of Twelve Million and 00/100 Dollars ($12,000,000) or so much
thereof as may be Advanced (each Advance shall be referred to as an
“Advance” and all such Advances shall collectively be
referred to as the “Advances”) pursuant to a
Construction Loan and Security Agreement of even date herewith
(“Loan Agreement”) and incorporated by
reference herein made between Borrower and
Lender. Capitalized terms not defined herein shall have
the meaning given in the Loan Agreement. The principal
outstanding shall be repaid, together with interest thereon as
provided in this Note as follows:
For the entire
term of the Loan, the Loan shall bear interest at an adjustable
annual rate equal to thirty (30) day LIBOR, plus Two Hundred
Seventy Five (275) basis points (collectively the “Applicable
Rate”). Such adjustments shall become effective on
the 1st day of each month (the “Reset
Date”). Lender shall not be required to notify
Borrower of adjustments in said interest
rate. Notwithstanding the foregoing, at no time
shall the Applicable Rate be less than four percent (4.00%) during
the “Interest Only Period” (defined
hereinafter).
Subject to, and
in accordance with the provisions of this Note and the Loan
Agreement, accrued and unpaid interest shall be due and payable
monthly, in arrears on the first day of each month.
Principal and interest due Lender hereunder
shall be payable as follows:
A. Commencing on March 1,
2009 and thereafter on the same day of each succeeding
month for a period of twelve (12) months (the “Interest Only
Period”), monthly payments of interest only in arrears,
calculated at the above rate of interest upon the unpaid
principal
B. Commencing on March 1,
2010 and thereafter on the same day of each succeeding month for a
period of one hundred eight (108) months (and based upon an
amortization period of twenty-five (25) years, equal monthly
payments of principal in accordance with the attached amortization
schedule, plus accrued interest at the above Applicable
Rate.
C. All remaining unpaid principal and
all accrued interest thereon shall be due and payable in full ten
(10) years from the date hereof.
Subject to the terms and conditions contained in
the Loan Agreement, the amount of the Borrower’s available
construction line of credit hereunder shall be subject to the terms
set forth in the Loan Agreement. This Note is the Note
referred to in, and is subject to, and entitled to, the benefits of
the Loan Agreement between the Borrower and the
Lender. The terms used herein which are defined in the
Loan Agreement shall have their defined meanings when used
herein. The Loan Agreement, among other things, contains
provisions for acceleration of the maturity of this Note upon the
happening of certain stated events.
Principal sums advanced under this Note shall
reduce the amount of principal available under this Note and may
not be re-borrowed or re-advanced. This Note may be
prepaid only in accordance with the provisions set forth in the
Loan Agreement which does contain a provision for a Prepayment
Premium in accordance with Section 4.10 of the Loan
Agreement. All prepayments (with prepayment defined
herein as any payment of principal in advance of its due date)
shall be applied against the principal payments due hereunder in
the inverse order of their maturity.
The Lender may, in its sole discretion, and
notwithstanding execution of this Note by the Borrower in its
stated maximum Principal Sum, act to advance lesser sums thereon to
the Borrower in amounts, and at times in accordance with the Loan
Agreement.
However, nothing herein shall be construed to
restrict the Lender, in its sole and exclusive discretion, from
making Advances in excess of the stated maximum dollar amount,
without requirement of execution of additional promissory note(s),
or otherwise modifying this Note, and its so doing at any time, or
times, shall not waive its rights to insist upon strict compliance
with the terms of this Note, the Loan Agreement, or any other
instruments executed in connection with this financial transaction,
at any other time, and to further rely upon all collateral secured
to it for satisfaction of all obligations of the Borrower to the
Lender, without exception.
Borrower agrees that the Lender may, at its sole
and exclusive discretion, make loan advances to the Borrower upon
verbal, or written, authority of any two of the following four
individuals: Anthony J. Galici, Thomas M. Lescalleet,
Frederick M. Danziger and Kelly Poudrette ; may deliver loan
proceeds by direct deposit to any demand deposit account of the
Borrower with the Lender, or
otherwise, as
so directed; and that all such loans and advances as evidenced
solely by the Lender's books, ledgers and records shall
conclusively represent binding obligations of the Borrower
hereunder.
The Lender shall also record as a debit to the
Borrower’s Loan Account, in accordance with its customary
accounting practice, all other obligations, debts, charges,
expenses, and other items properly chargeable to the Borrower; and
shall credit all payments made by the Borrower on account of
indebtedness evidenced by the Borrower’s Loan Account; as
well as all proceeds of collateral which are finally paid to the
Lender at its own office in cash or solvent credits; and other
appropriate debits and credits. The principal balance of
the Borrower’s Loan Account shall reflect the amount of the
Borrower’s indebtedness to the Lender from time-to-time by
reason of loans and other appropriate charges
hereunder. At least once each month the Lender shall
render a statement of account for the Borrower’s Loan Account
which statement shall be considered correct and accepted by the
Borrower and conclusively binding upon the Borrower, unless the
subject of written objection received by Lender, certified mail,
return receipt requested, within ten (10) days after
mailing of its statement to Borrower.
Borrower does hereby irrevocably grant to the
Lender, full power and authority, at its discretion, to debit any
deposit account of the Borrower with the Lender for the amount of
any monthly interest owing on Borrower’s Loan Account
referred to herein; for the amount of any principal reduction, or
for any repayment of obligations due upon Borrower’s Loan
Account which the Lender may require, all without prior notice, or
demand upon the Borrower.
Any payments received by Lender with respect to
this Note shall be applied first to any costs, charges, or expenses
(including attorney's fees) due Lender from the Borrower, second to
any unpaid interest hereunder, and third to the unpaid Principal
Sum.
If any payment required hereunder is more than
ten (10) days overdue, (in addition to the interest
accruing hereunder) a late charge of five per
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