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HomeMy WebLinkAboutNEW ENGLAND MERCHANTS NATIONAL BANKMORTGAGE DEED AND SECURITY AGREEMENT KNOWALLMEN BY THESE PRESENTS, That THOMAS J. FIATI~Y of Milton, Norfolk County, Massachusetts, hereinafter called "Mortgagor" for consideration paid GRANTS unto NEW ENGLAND MERCHANTS NATIONAL BANK, a national banking association and having its principal office in the City of Boston, Suffolk County, Commonwealth of Massa- chusetts, hereinafter called "Mortgagee" with MORTGAGE COVENANTS, to secure the payment of FIVE MILLIONTWO HUNDRED FIFTY THOUSAND ($5,~250,000.00) DOLLARS, as evidenced by a promissory Note (and any renewals or extensions or modifications thereof) of even date here- with, the ~inal payment of which is due on the first day of the 359th month after the month in which amortization of principal begins thereunder, executed by the Mortgagor and delivered to the Mortgagee together with the interest thereon as by said Note (and any renewals or extensions or modifications thereof) provided, said Note be~ug payable to the order of the Mortgagee in lawful money of the United States of America at its aforesaid principal office, or at such other place as the holder thereof may designate in writing, the principal and interest being payable in accordance with the terms and conditions in said Note provided, to which said Note reference is hereby specifically made, and also to secure the performance of all agreements and covenants herein contained: CERTAIN REAL ESTATE situated in North Andover, Essex Co~nty, Massachusetts, together with any improvements now or hereafter situated thereon, all as described in Schedule '~" annexed hereto prior to the execution hereof, and incorporated herein by reference as if ~lly set out herein. Together with all buildings, structures, apparatus, fixtures and articles of personal property owned by Mortgagors and now or hereafter erected or placed in or upon :tate or now or hereafter attached to or used in connection therewith, including without being limited to, all elevators, screens, doors, awnings, blinds, shades, carpeting, lobby furnishings, gas and electric fixtures, all heating, lighting, cooking, refrigerators, refrigerating equipment, laundering, plumbing, ventilating, air conditioning, disposals, dishwashers, furnishings, fi×tures, swimming pools and recreational equipment, personal property, and all building materials an~ supplies and all other tangible personal property intended for use in the construction of buildings and other improvements on the premises, are hereby declared and shall be deemed to be fixtures and accessory to the freehold and a part of the realty as between the parties hereto, their successors and assigns, and all persons claiming by, through or under them and shall be deemed to be a part of the security for the indebtedness herein mentioned and to be subject to the lien of the mortgage. Together with all and singular the tenaments, easements, hereditaments and appurtenances thereunto belonging; and also all the estate, right, title and interest of the Mortgagors, of, in and to the aforementioned properties and every part and parcel thereof. As further security for payment of the indebtedness and performance of the obligations, covenants and agreements secured hereby, Mortgagor hereby transfers, sets over and assigns to Mortgagee: (a) All rents, profits, revenues, royalties, bonuses, rights and benefits under any and all oil, gas or mineral leases of the premises or any part thereof, now e×isting or hereafter made, with the right to receive and receipt therefor and apply the same to said indebteSness either before or after any default here- under, and Mortgagee may deman~ sue for and recover any such payments ~ut shal~ not be required so to do. Page 2 of 12 Pages (b) All other rents, issues and profits of the premises from time to time accruing, whether under leases or tenancies now existing or hereafter created, reserving to Mortgagor, how- ever, so long as Mortgagor is not in default hereunder, the right to receive and retain such rents, issues and profits. (c) All Judgments, awards of dsmages and settlements here- after made as a result or in lieu of any taking of the premises or any part thereof under the power of eminent domain, or for any damage (whether caused by such taking or otherwise) to the premises or the improvements thereon or any par~ thereof, including any award for change of grade of streets. Mortgagee agrees, by acceptance here~f~ that it wil~ release to the Mortgagor all such sums for the ~mrpose of restoration and reconstruction of the premises, if and only if (a) Mortgagee determines in its own sole discretion that after any such taking or other governmental action a wlable operation can be conducted on the remaining portion of th~premises with revenue sufficient to make all payments and mee~ all other obligations of Mortgagor hereunder and under t~Note secured hereby, and that such sums are sufficient so te~restore and reconstruct said premises, and (b) Mortgagor c~nants and agrees in that event (and Mortgagor hereby does so) to make and complete such restoration and reconstruction. Mortgagor covenants and agrees with ~tgagee as follows: 1. Mortgagor is lawfully seized of s~ indefeasible estate in fee simple, free from encumbrances, a~ has good ~ight and power to convey the premises. 2. To pay all sums ~ecured hereby whmm due. B. To pay, when due, all taxes and amsessments of every type or nature levied or assessed against the ~mises and any claim, lien or encumbrance against the premises which may be or Page S of 12 Pages become prior to this mortgage. 4. To keep the premises insured against loss or damage by fire, the perils against which insurance is affQrded by the Extended Coverage Endorsement, and such other risks and perils as Mortgagee in its discretion may require. The policy or policies of such insurance shall be in the form in genera~ use from time to time in the locality in which the premises are situated, shall be in such amount as Mortgagee may reasonable require but in no event for less than the indebtedness from time to time secured hereby, sha~l be issued by a company or companies approved by Mortgagee, and shall contain a Non-Contributory Mortgagee Clause with loss payable to Mortgagee. Whenever required by Mortgagee, such policies, and abstracts and other title evidence shall be delivered immediately to and held by Mortgagee. Any and all amounts received by Mortgagee under any of such policies may be applied by Mortgagee on the indebtedness secured hereby in such manner as Mortgagee may, in its sole discretion, elect or, at the option of Mortgagee, the entire amount so received or any part thereof may be released. Upon foreclosure of this mortgage or other acquisition of the premises or any part t~ereof by Mortgagee, such po2icies, abstracts and title evidence shall become the absolute property of Mortgagee. Mortgagor further covenants and agrees that in the event the buildings on the premises are damaged or destroyed by fire and/or other insured casualties, or windstorm, Mortgagor shall make the necessary repairs to restore the premises to the satis½action of Mortgagee~ and the cost of such repairs or rebuilding shall be paid from any insurance prOceeds and the excess of cost over such insurance proceeds shall be secured hereby. In the event of failure or refusal of MortgaEor to make such repairs~ the Mortgagee may declare the entire indebte~ess secured hereby due Page 4 of 12 Pages and payable and require application of the insurance proceeds to reduce or pay said indebtedness. By acceptance hereof Mortgagee agrees that it will make available any insurance proceeds payable to it under policies naming it as payee for the purpose of repair or rebuilding of any damaged building, provided that any excess proceeds over the above costs of repair or rebuildingj may be applied to reduce or pay the indebtedness secured hereby, or paid to Mortgagor at the option of the Mortgagee. 5. That Mortgagor (i) will not remove or demolish nor alter the design or structural character of any building now or hereafter erected upon the premises unless Mortgagee shall first consent thereto in writing; (ii) will maintain the premises in good condition and repair; (iii) will not commit or suffer waste thereof; (iv) will not cut or remove nor suffer the cutting or removal of any trees or timber on the premises (except for domestic purposes) without Mortgagee's ~itten consent; (v) will 'comply with all laws, ordinances, .regulations, covenants, conditions and restrictions affecting the premises, and will not suffer or permit any violation thereof. 6. If Mortgagor fails to defend against or pay any claim, lien or encumbrance which is alleged to be prior to this mortgage~ or, when duet any tax or assessment or insurance premium, or to keep the premises in repair, or shall commit or permit waste, or if there be commenced any action or proceeding affecting the premises or the title thereto, then Mortgagee, at its option, may pay said claim, lie~ encumbrance, tax, assessment or premium, with right of subrogation thereunder, may proc~e such abstracts or other evidence of title as it ~eems necessa~yj may make such repairs and take such steps as it deems advisable to prevent or cure such waste, and may appear in any such action or proceeding and retain counsel therein, and take such action therein as Mortgagee deems advisable, and for any of said purpose~ Mortgagee may advance Page 5 of 12 Pages such sums of money as it deems necessary. Mortgagee shall have no responsibility with respect to the legality, validity and priority of any such claim, lien~ encumbrance, tax, assessment and premium, and of the amount necessary to be paid in satisfaction thereof. Mortgagor will pay to Mortgagee, immediately and without demand, all sums of money advanced by Mortgagee pursuant to this paragraph, together with interest on each such advancement at the rate of eleven per cent (ll%) per~ annum, and all such sums and interest thereon shall be secured hereby. ?. If default be made in payment, when due, of any indebtedness secured hereby, or in performance of any of Nortgagor's obligations, covenants or agreements here'&uder: a. Mortgagee is authorized at any tfme, without notice~ in its sole discretion to enter upon and take possession of the premises or any part thereof, and to perform any acts Mortgagee deems necessary or proper to conserve the security~ and to collect and receive all rents, issues and profits thereof, including those past due as well as those accruing thereafter, and b. Mortgagee shall be entitled.to have a receiver appointed to enter and take possession of the premises, collect the rents and profits therefrom~ and apply the same as the court may direct. In either such case Mortgagee or the receiver may also take possession of, and for these purposes use, any and all personal property contained in the premises and used by Mortgagor in the rental or leasing thereof or any part thereof. The expense (including receiver's fees, counsel fees~ costs and agent's compen- sation) incurred pursuant to the powers herein contained shall be secured 'hereby. Mortgagee shall (after payment of all costs and expenses incurred) a~ply such rents, issues and profits received by it on the indebtedness secured hereby in such order as Mortgagee Page 6 of 12 Pages determines. The right to enter and take possession of said property, to manage and operate the same, and to collect the rents, issues and profits thereof, whether by a receiver or other- wise, shall be cumulative to any other right or remedy hereunder or afforded by law, and may be exercised concurrently therewith or independently thereof. Mortgagee shall be liable to account only for such rents, issues and profits actually received by Mortgagee. 8. Within 90 days of the end of each fiscal year, Mortgagor will furnish Mortgagee with a certified itemized state- ment of annual income and expenses with respect to the premises herein conveyed. This covenant to be in effect during the life of this mortgage and any renewal thereof. The Mortgagee may, during the normal business hours, upon fifteen (15) days written notice to Mortgagor, inspect, take extracts from and make copies of Mortgagor's books, records, and tax returns for the purpose of verifying any report within three (B) years after it is submitted. 9. The Mortgagee, at its option, may accelerate the maturity of this mortgage, in the event of bankruptcy of any owner of the mortgaged property during the period of his ownership. lC. In the event the U. S. Government or any department or bureau thereof shall determine that this mortgage or the note is subject to tax or duty arising under the Interest Equalization Tax Act, Mortgagor will promptly pay upon demand, such tax or duty. 11. The Mortgagor shall not operate, or cause to permit the operation of the mortgaged premises or any part thereof, as a cooperative apartment house, or otherwise on a cooperative basis, whereby the tenants or occupants participate in the ownership, management, or control of the mortgaged premises, or any part thereof, as tenant stockholders or otherwise° Page 7 of 12 Pages 12. That the Mortgagor will not further encumber the mortgaged premises without having first secured the prior written consent of the Mortgagee. The Mortgagee shall have the right to accelerate the loan in the event of breach of this covenant. lB. The Mortgagor shall within 90 days after the end of each fiscal year of the Mortgagor beginning after the date this mortgage is assigned to The Prudential Insurance Company of America: a. Pay to the Mortgagee a sum in cash equal to 10 per cent of the Mortgagor's total gross rental income for the preceding fiscal year derived from operation of the premises here- by mortgaged by the owner, any operator, or Lessee thereof (herein- after referred to as Mortgagor's Gross) in excess of $9~5,000.00 annually p~us an amount equal to the amount, if any~ by which the general real estate taxes paid with respect to ~he Mortgaged premises in such current fiscal year exceed the sum of $175,000.00, (said sum being hereinafter referred to as the~ase amount). The obligation to pay the aforesaid sum will not ~se upon a later sale~ lease or other assignment of interes~ in She mortgaged premises~ regardless of the consideration recef~,ed by the seller, landlord or assignor, as the case may be. b. Submit to the Mortgagee with such payment a written statement file8 by an independent certified pu~ic accountant verifying the Mortgagor's gross income for the~eriod with respect to which such payment is made. The amount to ~paid within 90 days subsequent to the end of the mortgagor's l~rst fiscal period ending subsequent to the assignment of this mortgage to The Prudential Insurance Company of America from sm~h assignment to Prudential to the end of mortgagor's fiscal pe~_~d and the base sum as described above, shall be reduced in the proportion that Page 8 of 12 Pages the number of days remaining in said fiscal period after said assignment bears to S65. The final year of the term or a year in which the loan is paid in full shsll be similarly pro-rated as the number of ~ays from the beginning of mortg~gor's fiscal period, to the date of payment bears to S65. 14. That the Mortgagor will e×ecute and deliver to the Mortgagee in form satisfactory to~ the Mortgagee~ Financing State- ments or security Agreements and such further assurances as the Mortgagee may from time to time consider necessary under the Laws of the Commonwealth of Massachusetts to create, perfect and pre- serve the first priority of this Mortgage and of the lien of any other 'security for said Note upon the real and personal property herein described and intended to be subject hereto or to the lien of such other security and the Mortgagor authorizes the Mortgagee at the expense of the Mortgagor to cause such statements and assurances and this mortgage and such other security to be recorded and re-recorded, registered and re-registered, filed and re-filed at such times and places as may be required by law to so create~ perfect and preserve the priority thereof upon said property. 15o That if the indebtedness secured hereby is now or hereafter further secured by chattel mortgages~ security agreements, security interests~ pledges, contracts of guaranty, assignments of leases, or other securities then in the event of default hereunder or in said Note~ the Mortgagee may at its option realize upon any one or more of said securities and the security hereunder~ either concurrently or independently~ in such order as it may determine and whether'or not sggregate proceeds exceed the total indebted- ness then secured hereby. At any foreclosure sale any combinstion of or all property given to secure the indebtedness may be offered for sale .for one total price and the proceeds of such sale accounted for in one account without distinction between the items of security or assigning to them any proportion of~ such proceeds. Any combined sale of real and personal property contemplated Page 9 of 12 Pages bY'the foregoing sentence shall be conducted, as to notice and sale in the manner provided under the Statutory Power of Sale relating to realty hereinafter referred to; it being understood and agreed that a default in any of the instruments referred to above shall constitute a default hereunder. 16. Mortgagor further covenants and agrees that a default under that certain Mortgage given by the Mortgagor to New'England Merchants National Bank of Boston dated October 6, 1969 recorded in Essex North District Registry of Deeds in Book ll~l, Page 224, whether or not waived will constitute a default hereunOer. 17. No delay by Mortgagee in exercising any right or remedy hereunder, or otherwise afforded by law, shall operate as a waiver thereof or preclude the exercise thereof during the continuance of any default hereunder. 18. Without affecting the liability of Mortgagor or any other person (except any person expressly released in writing) for payment of any indebtedness secured hereby or for performance of any obligation contained herein, and without affecting the rights of Mortgagee with respect to any security not expressly released in writing, Mortgagee may, at any time and from time to time, either before or after the maturity of said note, and without notice or consent: a. Release any person liable for payment of all or any part of the indebtedness or for performance of any obligation. b. Make any agreement extending the time or other- wise altering the terms of payment of all or any part of the indebtedness, or modifying or waiving any obligation, or subordin- ating, modifying or otherwise dealing with the lien or charge hereof. Page 10 of 12 Pages c. Exercise or refrain from exercising or waive any right Mortgagee may have. d. Accept additional security of any kind. e. Release or otherwise deal with any p~operty, real or personal,~securing the indebtedness, including all or any part of the property mortgaged hereby. 19. Any agreement hereafter made by Mortgagor and Mortgagee pursuant to this mortgage shall be superior to the rights of the holder of any intervening lien or encumbrance. 20. That the existing parking area, recreation area and drives shall be maintained constantly, and, without prior written consent of the Mortgagee, no building or other structure shall be erected thereon and no new buildings or additions to existing buildings shall be erected on the remainder of the security. For the purposes hereof, restoration of buildings damaged by fire or other casualty (including taking by eminent domain) shall not be deemed to be erection of a new building. The Mortgagor also covenants and agrees that upon default or failure in the perfo~ance of any agreement or covenant contained in this Mortgage or Note secured hereby for a~eriod of thirty days, or upon the occurrence of any default of Mortgagor under said Construction Loan Agreement of even date and delivery herewith or upon breach of any statutory condition contained herein or upon the making of a claim of lien which in the s~le opinion of the counsel of the Mortgagee would create a valid ~bligation having priority over this Mortgage, the entire mortgage debt shall there- upon become due at the option of the holder hereof, and holder hereof may pay such claim or lien and any or aW taxes, charges,. assessments of every type or nature due and pa~ble upon the mortgaged property, or upon the Mortgagee's ~rest therein, or upon this Mortgage or the money secured hereby, and the amount paid shall be added to the principal sum hereby secmred; that in case Page ll of 12 Pages pr6ceedings to foreclose have been begun, the holder of this Mortgage shall be entitled tovcollect all costs, chsrges, counsel fees and expenses up to time of payment. This Mortgage is upon the Statutory Condition, for breach of which the Mortgagee shall have the Statutory Power of Sale. The covenants herein contained shall bind, and the benefits and advantages shall inure to, the respective heirs, executors, administrators, successors and assigns of the Mortgagor and Mortgagee. Wherever used, the singular number shall include the plural, the plural the singular, and the use of any gender shall be applicable to all genders. WITNESS my hand and seal this~d~day of 4~ ' A.D. 1971 Signed and sealed in the presence of: ~' ~ ~ ~ Thomas J. Flatl~ COMMONWEALTH OF MASSACHUSETT~ Suffolk County, ss.: Then personally appeared the abo~ge-named Thomas J. Flatley and acknowledged the foregoing instrument to be his free act and deed, be ~C£NT p. MCCARTHy, NOtary ?u~ ~ , -. Mg Commls slon ~he ~o~gagee ~olns In ~he execu:lon hereo~ ~o~ p~ose bu~ only ~o~ ~he ~pose o~ sec~lng :he be~e~l~s o~ a Secu~l~y Ag~eemen~ ~e~ ~Ae p~o~slons o~ ~be Onl~o~ Commercial Code cove~l~ all pe~aonal p~oper~ o~ ~he ~o~gago~ desc~tbe8 In ~he wl:hln ~o~gage and Secu~:g A~eemen~ ~o~e:he~ wl:h ang a881~ons ~he~e~o o~ subs:l~u:lons o~ ~epla~men~s ~he~e~o~. NEW ENGLAND MERCHANTS NATIONAL BANK / ~ ~ Page 12 of 12 Pages , i971 DESCRIPTION SHEET (1 of ~ages) ~ A certain land, with the buildings now standing or hereafter placed thereon, with all the improvements and appurtenances thereto, situated in NORTH ANDOVER, County of Essex and Commonwealth of Massachusetts, shown as Lot 2 on a plan entitled "Subdivision Plan of Royal Crest Estates, Land in No. Andover, Essex Co., Mass. prepared for T. J. Ftstley,,, by Gale Engineering Co., Inc., dated Sept. 15,-1969, filed with the Essex Korth District Registry toof Deeds said plan, as Plan as No. follows: 6097 on October 7, 1969, and bounded and described,, according. 'BEGINMING at a point marking the dividing line between Lots 1 and 2, as shown on said plan, in the Easterly line of Turnpike Street (also called Salem Turn- pike), and from said point o£ beginning the line runs NORTH 45© 23, 16', WEST along the Easterly line of Turnpike Street, one hundred ninety (1~0) feet to an iron pin in a wall at the most southerly corner of land of Gardner R. Humphreys et al; thence by said wall NORTHthence 09o by said 52, 00"wallEASTby the land last named, fifty-one and 08/100 (51.08) feet; NORTH 29© 59' 30, WEST by the land last named, one hundred twenty-nine and'54/lO0 (129.5~) feet; thence by said wall NORTH 28© 02, 30,, WEST by the land last named, two hundred thirteen and 78/100 (213.78) feet to a point marked by a concrete bound; thence by said wall NORTH 28° 02, 30" WEST by the land last named and land now or 'formerly of Wilfred Valcourt et al, one hundred twenty-four and 62/100 (124.62) feet; thence by the wall NORTH 25° 00" 15" WESTby the lsnd last named and land now or formerly of Arthur Theriaul~ et al; fifty-nine and 68/100 (59.68) feet; thence NORTH 25° 37' 30- WEST by the land last named, eight and 94/100 (8.94) feet to another wall dividi_ng'~hhe described parcel from Bevin Road; thence by said wall NORTH 61° 17' 30" EAST along the line of Bevin Road, seventeen and 42/100 (17.42) feet; thence by said wall NORTH 34© 47, 00" EAST along the line of Bevin Road, one hundred five and 74/100 (105.74) feet; thence by said wall NORTH 38° 42' 20" EAST along the line of Bevin Road, one hundred sixteen and 20flO0 (116.20) feet; thence by said wall NORTH 42° 50' 45- EAST along the line of Bevin Road and land now or formerly of Charles Melamed e~ al, two hundred ninety-three and 83/100 (293.83) feet; thence by said wall NORTH 32© 30' 30" EAST by the land last named, five humdred sixty-four and 69/100 (564.69) feet; thence by said wall NORTH 36© 10' 00,, EAST by the land last named, two humdred nine and 38/100 (209.38) feet; thence by said wall - (CONTIR~JED ON NEXT PAGE) DESCRIPTION SHEET (2 of 2~es) ~ NORTH 53° 01' 30" EAST by the land last named and land of the Town of North Andover, one hundred eighty-seven and 48/100 (187.48) feet; thence by said wall NORTH 72° 14~ 30" EAST by the land last named, three hundred twenty-nine ....... and 13/100 (329.13) ?eet; thence by said wall ' NORTH 68° 07' 30" EAST by the land last named and land now. or formerly of Balduc, eighty-eight and 13/100 (88.13) feet to land or Kur. tz M..& Helen Louise ttanson; thence SOUTH 11° 52, 00" EAST by the land last named, seven hundred ninety-seven and 05/100 (797.05) feet to a . corner of walls at land of John B. & Elizabeth W. Ha~riman; thence by a wall 'SOUTH 11° 53' 00" EAST by the land last named, four hundred sixteen and 64/100 (416.64) feet to another corner of walls at land of Margaret Howes & Ruth G. Weaver; thence ~ SOUTH 17° 06' 47" EAST by the land last named, four h~dred (400) feet to Lot 1 as sho~ on said plan; thence SOtr~H ~5° 50' 0~" WEST by said Lot 1, five hundred fer~y and 51/100 (540.51) feet; thence NORTH 73° 58' 06" WEST by said Lot 1, four hundred twmm~y-three and 48/100 (423.48) feet; and thence SOUTH 44° 38' 38" WEST by said Lot 1, five hundred elew~n and'59/100 (511.59) feet to the point o~ Beginning, the easterly line of ~npike Street. Containing 42.18 acres of land, all according to said ~Ian. Being a portion of the same premises conveyed to Thomam J. Flatley by deed of Daniel J. Puccio dated January 3, 1969, recorded with~ssex North District Registry of Deeds in Book 1122, Page 290. Said premises are conveyed with the right appurtenant ~ereto to use that portion of Royal Crest Drive located within said Lot 1, all as shown on said plan, for all purposes for which public streets and ways are commmn used in said North Andover, but reserving as appurtenant to the lan~ showmas Lot 1 on said plan the right to use that portion of Royal Crest Drive located within said Lot 2, including the ~urn around, all as shown on said plan, f~r all purposes for which public streets and ways are commonly used in saidNortTmAndover.. Sa~d premises are subject to a right of way and perpetmml easement of the Town of North Andover to construct, maintain, repair and re~ace sewerage works within the area along Turnpike Street marked ,'25' Utility Easement" on said plan, as set forth in grant from Thomas J. Flatley dated May i, 196~, recorded with said Deeds in Book 1129, Page 487, and to a covenant with the To,m of North Andover dated August 6, 1970, recorded with said Deeds in Book 1157, ~age 412. Said conveyance is subject to a special permit issued ~ the Town of North Andover, recorded with said Deeds in Book 1122, Page 244.