RFF Family Partnership, LP v. Link Development, LLC et al

Filing 1

COMPLAINT Verified Complaint against Robert V Wallace, Jeffrey B. Karll, Link Development, LLC, Russell and Associates LLC Filing fee: $ 350, receipt number 0101-3432030 (Fee Status: Filing Fee paid), filed by RFF Family Partnership, LP. (Attachments: # 1 Civil Cover Sheet, # 2 Civil Cover Sheet Category, # 3 Exhibit A - Certificate of Organization, # 4 Exhibit B - Foreclosure Deed, # 5 Exhibit C - Desert Pine Mortgage, # 6 Exhibit D- Certificate of Organization, # 7 Exhibit E - Managers Cert, Cert of Manager, # 8 Exhibit F - Desert Palm Mortgage, # 9 Exhibit G - BD Mortgage, # 10 Exhibit H - Amendment of Mortgage, # 11 Exhibit I - Certificate of Organization, # 12 Exhibit J - Superior Court Complaint, # 13 Exhibit K - Link Land Court Complaint, # 14 Exhibit L - Note, # 15 Exhibit M - Loan Agreement and mortgage, # 16 Exhibit N - Guaranty, # 17 Exhibit O - subordination agreements, # 18 Exhibit P - Assignment, # 19 Exhibit Q - Settlement Agreement, # 20 Exhibit R - Russell Land Court Complaint, # 21 Exhibit S - Land Court Decision, # 22 Exhibit T - Memorandum of Sale, # 23 Exhibit U - redacted P&S)(Briansky, Richard)

EXHIBIT G

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MORTGAGE AND SECURITY AGREEMENT

Street, , Boston MA 02i 16 (the "Mortgagor"),
for consideration paid of SIX HUNDRED THOUSAND DOLLÄRS (S600,000.00), gànts the
Premises (as hereinafler defined) to BD LENDING TRUST, u/d/t dated September 29,2006
and lecorded he¡ewith having an address of 80 Summé¡ Sireet, Boston MA 021i 0 (the
"Mortgagee") with MORTGAGE COVENANTS, to secure the payment, performance and
observance ofall the Obligations. The term "Obligations" means all of the debts, liabilities,
agreernents and other obligations ofMortgagor and every other party to the Loan Documents due
Morlgagee, whether direct or indirect, absolute or contingent, joint or several, due or to become
due, now existing or arising in the firture. The term "Loan Documents" includes this Mortgage,
the Term Note of the Mortgagor of even date, all other documents delivered to Mortgagee in
con¡ection rvith this Mortgage by Mortgagor or by others and all amendments, extensions and
renewals of thìs Mortgage and the other agreements and documents referred to above.

LINK DEVELOPMENT, LLC, of 229 Berkeley

The term "Premises" includes the following, all of which are subject to this Morlgage:

(Ð
(iÐ

the land in Saugus, Essex County, Massachusetts having an address of Off Route
I and Lynn Fells Parkrvay and 1-12 Denise Drive; more particularly described in
Exhibit A attached;

All buitdings, structures ald improvements nov/ or at any time in the future on the
Land;

(iii)

All Fixtures, which term means (1) all goods, equipment, frxtures, building
inaterials and tangible personal property (except (a) consumable goods, þ)
équipment of Mortgagor which is not affìxed to the real estate and (c) personal
property owned by tenants of the Premises which the tenants are entitled to
remove by law or agreement) now or in the future located on, attached to or
incorporated in the construction of and used in con¡ection with the operation of
ihe Premises including, but not iimited to, all sidetracks, boilers, tanks, pumps,
furnaces, radiators, alarm systems, cooling towers, compressors, elevators,
escalators, cranes and all heating, lighting, power, plumbing electricai,
conlnunications, ventilating, refrigerating, air conditioning, sprinkler, incinerating
and building service equipment, and (2) all related accessories, additions and
replacements;

(v)

All right, title

(vÐ

All

and interest of Molgagor in ai1 easements, rights (including
mineral, air and water rights), privileges, appurtenances, licenses, permits and
govemmental approvals, now or in the future pertaining to the Premises; and
rents, íncome, profits, royaities or accounts receivables from the Premises.
The Mortgagor, in order to secure the Obligêtions, also grants to the Mortgagee a
,4fter Reco

litq Retum

to.'

STUART H. SOJCIIE& ESQ,
229 Be¡keley Street
BostoD, MA 02116

security interest in the above described property whether now owned or hereafte¡
acquired.

Section I - General Covenants of Mortsaqor' Until the Obligations are paid,
performed and observed in full, in addition to the STATUTORY CONDITION, Mortgagor
agrees as follows:

1.1

Insurance. To keep all buildings, improvemenß- ãã Fixtures which are
part ofthe Premises insured against direct rislt ofphysical loss in an amount not less than i00%
of their rep lacement cost. Mortgagor agrees to maintain such other insurance and in such
amounts as Mortgagee reasonabiy requests. If a structure which is part of the Premises is within
a flood hazard area. Moftgagor agrees to carry flood insura¡ce to the extent required under
applicable law or by Mortgagee. Mortgagor agrees to keep all buildings and improvements under
construction insured under a Builder's fusk, Completed Value, non-reporting form of policy
which provides coverage for "completìon and/or premises occupancy". All insura[ce will (i) be
written ìvith a standard mortgagee clause by companies ofrecognized responsibility authorized to
w¡ite such insu¡ance in Massachusetts and havìng a Besfs financial rating olB of better, (ü) be
in amounts and on fo¡ms satisfactory to M ortgagee, (íii) be payable in case of loss to Mortgagee,
as its interest may appear, and (iv) contain a provision that it may not be cancelled or modified
without at least ten (10) days prior written notice to Mortgagee. Mortgagor agrees to deliver to
Mortgagee, when requested, satìsfactory evidence of(a) all existing insurance policies, þ) new
poiicies for insurance about to expire at least ten (10) days belore the expiration and (c) payment
of all insurance premiums. Subject to the rights of the holder of¿ny prior mortgage, after
demand by Mortgagee, MoÉgagor agrees (x) to deposit with Mortgagee on each day that interest
payments are required by the temrs ofthe Loan Documents, a sum equal to thât fraction of
ilsurance premiums payable each year estimated by Mortgagee to be sufficient to provide, in
total, a sum adequate to pay the insurance premíums when due, (y) to deposit with Mortgagee the
balance necessary to pây the insurance premiums in ful1 befo¡e they are due and (z) to forward to
Mortgagee bills for the insurance premiums as soon as they are received by Mortgagor.

L2

Taxes. To pay or cause to be paid, befo¡e the iast day on which pa¡T nent
may be made without penalty or intefest (the "Palment Date") all taxes (or payments in lieu of
tâxes), special or general assessments, water ând sewer charges and other municipal charges with
respect to the Premises (',Taxes") and to fumish evidence of payment to Mortgagee. Subject to
the rights of the holder ofany prior morigage, after demand by Modgagee, Mortgagor agrees (i)
to deposit with Mortgagee on eâch day that interest pa)¡ments are required by the terms of the
Loan Docùilents, a sum equal to that fraction ofthe Taxes for each year ssfimated by Mortgagee
to be sulficient to provide, in total, a sum adequate to pay the Taxes on the Payment Date, (ii) to
deposit rvith Mortgagee the balance necessary to pay the Taxes in Íìrll before the Payment Date
and (iii) to folward to Mortgagee bills for the Taxes as soon as they are received by Mofgagor.
Mortgagee may invest all sums deposited by Mortgagor for its owu account without obligation to
pay interest to Mortgagor.

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I
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Mortsages and Encumbrances. To keep the title to the Premises free of
all moftgages and other encumbrances except the lien for TaxeS not yet due ar.Ld encumbrances
assented to by Morlgagee, regardless ofwhether the mortgâge or encumbrance has priorily over

1.3

this Mortgage.

l-4

Maintenance and Use of Premises. To maintain the Premises in as goorl
condition as they now are or may be in the future, reasonable wear and tear excepted. Mortgagor
agrees not to permit (i) removal, demolition or other waste of the Premises, (ii) lapse or
revocation ofany license, permit or other governmental authorization issued with respect to the
Premises, (iii) marerial change in the structure or use of the P¡emises or (iv) violation ofa law or
ordinance affecting the Premises or its use. At Mortgagee's request, Morlgagor agrees to provide
evidence of compliance with the provisions ofthis of any other covenant in the Loan Documents.
Leases. To deliver to Mortgagee for examination and copfng originals of
all leases, licenses, franchises and other agreements under which a person occupies any part of
the Premises (,'Leases,'). Mortgagor assigns the Leases and all rent, income, fees and other
âmounts due Mortgagor under the Leases ("Rents") to Mortgagee as additional security for the
Obligations. Mortgâgor gants to Mortgagee full power, as irrevocable attomey-in-fact of
Mortgagor, to execute and deliver assignments of the Leases and the Rents to itself, to any future
holder of this Mortgage or to any person claiming title to the P¡emises as a result of foreclosure
proceedings. when an Event of Default exiäs, Mortgagee may, without waiving any of its other
àghts, coliect the Rents and enforce ail obligations oftena¡ts u[der the Leases without taking
pãssession ofthe Premises and without performing any obligations of the landlord under the

1.5

Leases.

L6

Additional Collateral Within thirty (30) days after demand, to deliver to

Mortgagce additional collateral.

1.7

Environmental Laws and Compliance. To comply with and to cause the
premises to comply with all applicable Federal, state and local laws, codes, ordinances, ru1es,
regulations and interpretatiors now or i¡r the future existing, and all applicable orders of
administrative agencies including, but not limited to, the Comprehensive Environmental
Response Cornpensation and Liability Act, the Resource conservation a¡rd Recovery Act of
I9i6,Ihe Superfund Amendments and Reauthorization Act of 1986 and Massachusetts General
Laws, Chapters ZIC and 2IE, relating to the environment, health, safety, sanitation, underground
storage tanks â¡d the "releâse or tfueat ofrelease" ofHazardous Materials (the "Environmental
Laws"). The term "Hazardous Materials" means (i) lead paint, asbestos, radon and (ii) "oil",
"hazardous materials", "hazardous wastes" ald "hazardous substances" as those terms are defined
in the Environmental Laws.

I

Copies of Notices. To give to Mortgagee, immediately, copies of
all notices, reporls, citations and other communications given or received by Mortgagor in
connection with any Environmental Laws lvhether or not relating to the Premises'
1.1

Mortgagee or its agents may enter the
Premises at any time and perform, or may requte Mortgagor to deliver to Mortgagee, whatever
tesis it considers necessary to determine the existence or non-existence ofHazardous Materials.
If Hazardous Materials exist on the Premises, Mortgagee has the right (but not the obligation) to
cause the Haza¡dous Materials to be contained anÜor removed, and, using contractors of its
choice, to enter the Premises to perlorm any remedíal action it considers necessary, all rryithout
incurring liability to Mortgagor for any action taken by Mortgagee or its agents.

1.7.2 Testinq and Remediation.

1.8

Indemnification. To defend, indemnify and hold Mortgagee and its
directors, offlcers, agents and employees harmless against all ciaims, losses and liabilities,
including reasonable âttomeys' fees and costs of litigation, incurred by Mortgagee on account of
(i) Mortgagor's failure to comply with Environmental Laws, (ii) a release or threat of release of
Hazardous Materials on the Premises, (iii) any activity on or condition ofthe Premises and (iv)
any future law, regulation, judicial order or govemmental action affecting the Premises'

I.9

Alienation. Not to cause or permit, directly or indirectly, whether

voluntarily or by operation of 1aw, (i) title to all or part of the Premises to become vested in a
person other than Mortgagor, or (ii) all or part ofthe Premises to become $rbject to the
(iii) any
þrovisions of Massachusetts General Laws, Chapter 1834 relating to condominiums, or
change in ownership of the legal or beneficial interest in Mortgagor. If any of the changes
described above occur, in addition to exercising remedies available to it, Mortgagee may, at its
option and without notice to Morlgagor, deal wiih the successor in inte¡est with reference to this
Mortgage and the Obligations in the same marmer as with Mortgagor, without reducing or
discharging Mortgagor's liability for the obligations. when requested, without delay Mortgagor
agrees to disclose to Mortgagee the name, address and ownership interest ofeach legal and
beneficial owner of the Premises or Mortgagor.

Section2-EventsofDefault. The occurrence ofone or more of the following

events or

conditions is an Event of Default and a breach of the condition of this Modgage:

(Ð

The failure to pay an Obligation when due;

(iÐ

The failure to perform or observe a:r Obligation;

(iiÐ

A statement, cefiificate, report, financial statement, representation or lMarranty
made or fumished to Mortgagee by a party to the Loan Documents or in compiiance with the
provisions of the Loan Documents proves to have been false or incomplete in any material
respect when made;

(i")

Mortgagor or a guarantor ofthe Obligations ("Guarantor") (a) is or becomes
insolvent within the meaning of the Massachusetts Uniform Commercial Code; (b) files a
petition in bankruptcy or a petition to take advantage ofan insolvency act; (c) makes an
assignment for the benefit of its creditors; (d) consents to the appointment of a receiver or
custodian of itselfor of the whole or a substantìal part of its property; (e) is named debtor pârty

in an involuntary bankruptcy proceeding and the proceeding is not dismissed within sixty (60)
days; (f) frles a petition or answsr seeking reorganization or arrangement under â Fedelâl or state
law; or (g) dies, dissolves or terminates its existence;

(v)

With respect to Mortgagor or a Guarantor, and without the consent of either, a
court enters an order (a) appointing a receiver or custodian of either or of the whole or a
subsiantial pârt the property of either, or @) approving a petition filed against either seeking
reorganization or ãrangement under a Federal or state law;
under a law for the reliefor aid of debtors, a court assumes custody or control of
Mortgagor or a Guarantor or ofthe whole or a substantial part ofthe property ofeither;

("i)

(vii)

A court enters Írnal judgment against Mortgagor or a Guarantor for the payment of

money;

(viii)

The failure by Mortgagor or a Guarantor (a) to pay when due the principal of, or
interest or premìum on, any indebtedness (other than an obligation) incurred or assumed by
Mofgagor or the Guarantor for money borrowed or for the acquisition ofproperty or (b) to
perform or observe any of the obligations which are imposed on Mortgagor or the Guarantor by
agreement securing or evidencing the inclebtedness or under which the indebtedness is issued,
and,ìn either case, the failure is not cured within an applicable period ofgrace or notice; or

t

(ix)

The occurrence

ofa default or Event ofDefault under the Loan Documents'

section 3 - Rishts and Remedies. without prejudice to Mortgagee's rights with respect
to outiguti,ons puyuble on demand, if an Event of Defauit exists, Mortgagee may, without notice
except io the extent notice is required by law, exercise the rights and remedies provided in this
Section 3, conferred by law or under the Loan Documents with respect to the Premises,
Mortgagor or any other person. Mortgagee's rights and remedies are cumulative and not
exclusive of or alternative to any rights or remedies it would otherwise have. A delay or failure
by Mortgagee in exercising or enforcing its fights or remedies does not constitute a waiver.

3.1

Remedies. Whenever a¡ Event of Default exists, Mortgagee may:

(Ð

Declare the ObLigarions immediately due and payable, without
presentment, notice, protest or further demand, all of which are hereby expressly waived;

(iÐ

Exe¡cise the STÄTUTORY POWER OF SALE;

(ìiÐ

Initiate actions or proceedings available to Morlgagee under
applicable law to protect its interest in the Premises and the Obligations; or

(iv)

Petition for the appointment ofa receiver ofthe Premises, which
appointrnent may be made ex pgry¡gand without notice except to the extent notice is required by

larv, without regard to the solvency of Mortgagor or a Guarantor at the time of application for the
receiver and without regard to the value of the Premises.

3.2 Receiver. Mortgagor consents to the appointment of Mortgagee or other
qualified person as receiver, to take possession ofand to operate the Promises and to collect the
Rents. Notwithstanding the appointment of a receiver or other custodian, Mortgagee is entitled,
as pledgee, to the possession and control ofall cash, deposits and instruments at the time payable
or deliverable under this Mortgage.
3.3

Specific Performance. Failure by Modgagor to perform its agreements
contained in the Loar Documents will result in irreparable harm to Mortgagee for which
Morlgagee has no adequate remedy at law. Therefore, Mortgagor agfees that íts agreements
contained in the Loan Documents are specifically enforceable by Mortgagee.

3.4 Foreclosure Sales- Mortgagee has the right in case of a sale which it is
entitled to make, to sell the Premises at public auction, either as a whole or by parcels and
without regard to other collateral now or in the future securing the Obligations. In the case of a
sale by parcels, the purchaser of a parcel will take good title, even ifa sum may already have
been realized from the sale of other parcels sufficient to satisfy all the Obligations. The
foreclosure sale may be held at the offices of Mortgagee or on or ne¿ir the Premises, without
notice or demand, except to the extent notice or demand is required by law.
3.5 @.

If (i) foreclosure, bankruptcy or other
proceedings involve Mortgagee's interest under this Mortgage, whether the proceedings are
legal
begun by Mortgagee or others and whether the proceedings are suspended or terminated o¡ the
Premises redeemed, or (ii) Mortgagee takes possession of the Premises, Mortgagee will be
entitled to collect and Mortgagor agress to reimburse Mortgagee for ali expenses, including
reasonable attomeys' fees, incurred by Mofgagee in the foreclosure, bankruptcy or other legal
proceeding or in the maintenance; protection and management of the Premises plus, ìn addition
to all other amounts owed and other collection fees, an additional collection fee equal to ten
percent (10%) of the proceeds realized from the foreclosure sale. Ifsurplus proceeds are realized
from a foreclosure sale, Mortgagee will not be liable for interest on the proceeds pending
distribution, and all costs and reasonable attomeys' fees incuned by it in proceedings to
determine the person or persons entitled to the surplus will be paid from the surplus proceeds.

3.6

Forbearance not a Waiver. The liability of Mofgagor will not be
reduced, the priority of this Mortgage will not be affected, and the rights of Mo¡tgagee with
respect to Morlgagor or the security for the Obligations will not be impaired by any of the
following events, regardless ofwhether Mortgagee receives additional consideration: (i) the sale
of all or part of the Premises, (ii) a forbearance by Mortgagee, (iii) an extension of the tìme for
pal.rnent or performance ofthe Obligations, (iv) a release ofsecurity for or a guarantor of the
Obligations or (v) an indulgence given by Mortgagee to Mortgagor or to any other person having
an inte¡est in the Premises or liable for the Obligations. Mortgagor waives notice of any
extension, forbearance or indulgence and aglees that no waìver, express or implied, by

Mortgagee of a default by a party to the Loan Documents will constitute a waiver of a future
default in the same or any other provision of the Loan Documents.

3.7

Insurance Policies. If this Modgage is foreclosed, Mortgagor grårts to
Mortgagee full power, as i¡¡evocable attorney-in-fact ofMortgagor, to cancel the insurance
required to be maintained by Mortgagee under this Mortgage, retain the retum premiums and
apply them io the Obligations or to transfer the insurance to a person claìming title to the
Premises as a resrllt of foreclosure proceedings.

Sectior 4 - Damage to Premises. Mortgagor appoints Mortgagee as its iüevocable
attomey-in-fact (i) to adjust and to settle claims on account ofdamage to the Premises resulting
from a taking or casualty, (ii) to receive all condemnation and insurance proceeds ("Proceeds")
arising out of the damage and (iii) to endorse in favor ofitselfor a:ry other person drafts or
checks for Proceeds received by it. All Proceeds may be applied by MoÉgagee, at its option, to
expenses including, but not limited to, the reasonable fees and disbursements of attome¡'s and
other professionals incurred by Mortgagee in collecting the Proceeds, to the cost ofrestoring the
Premises or to the Obligations, whether or not then due, in any order Mortgagee determìnes in its
sole a¡d absolute discretion. If Mortgagee elects to apply the Proceeds to restoration, it may, ìn
its discretion, (a) pay the Proceeds to Mortgagor for application to ihe cost of the work, or (b)
advance the Proceeds from time to time to Mortgagor a¡rd./or its contlactor for application to the
cost of the work âs the cost is certified to Mortgagee by an a.rchitect or contractor in charge of the
restoration who has been approved in writing by Mo¡tgagee. Mortgagee is not obligated to make
advances if, as a result, the balance ofthe Proceeds are or will become less than the amount
specified in the architect's or contractor's certificate as the amount required to complete the
restoration. UnleSs Mortgagee êlectó to apply the Proceeds to the Obligations, upon receipt by
Mortgagee of satisfaotory evidence that the restoration has been completed, that the cost ofall
labor and materials has been paid in fu1l and that there are no liens on the Premises and if no
Event of Default exists, MoÉgagee agrees to pay the balance ofthe Proceeds held by it to
Mortgagor. If the Proceeds held by Mortgagee are insufficient to pay the entire cost of
restoration, Mortgagor agrees to pay the deficiency on demand.
Section 5 - Payments bv Mortgagee. Mortgagee is authorized but not obligated (i) to
pay all Taxes with accrued interest, penalties and charges, (ii) to pay the premiums for insurance
required under the Loan Documents, (iii) to incur and pay reasonable expenses, including
attoÌneys' fees, in protecting its rights under the Loan DocrÌments, and maintaining, protecting or
managing the collateral securing the Obligations, (iv) to pay indebtedness secured by a mortgage
ofreal estate oÌ'securiiy ìnterest in property or Fixtures included as part ofthe Premises, (v) to
add all amounts paid or incur¡ed for the above purposes to the principal amount of the
Obligations, and (vi) to apply to the above purposes or to the repaJ¡rnent ofamounts paid by
Mortgagee, sums paid under the Loan Documents as interest or principal. The amounts paid by
Mortgagee will bear interest at the highest rate payable under the Loan Documents and will be
payable on demand.

Section 6 - Entry bY Mortgaeee. Mortgagee or its agents may enter the Premises at any
time, before or after an Event of Default, to inspect the Premises, to appraise the Premises, to
detennine compliance with the provisions of the Loan Documents and to tai(e any action while
on the Premises authorized under this Mortgâge or which it considers necessary to preserve the
value of the Premises. Entry by Mortg¿gee for the purposes authorized under this section will
not be considered entry lor any other purpose or constitute possession ofthe Premises.
Mortgagor agrees to reimburse Mortgagee on demand for all expenses incurred in connection
with an entrymade under this section, including the cost of appraisal, testing, remedial action or
other activities by Mortgagee or its agents while on the PremisesSection 7 - Notices and Communications All notìces, demands, requests and othe¡
communications provided for or permitted under this Mortgage must be in writing and be
delivered by hand or sent by telecopy, nationally recognized and reputable ovemight delivery
service, express mail, certified mail or first-class mail, postage prepaid, to the parties,
respectively at the following addresses:

(a)

Ifto

(b)

if

Mortgagee, at the address stated at the beginning ofthis Mortgage (or
at such other address as Mortgagee designates in writing to Mortgagor), with a copy to
the persons Mortgagee designates in \witing to Mortgagor, or
to Mortgagor, at the address stated at the beginning of this Mortgage (or
at such other address as Mortgagor designates in writing to Mortgagee), with a copy to
the persons Mortgagor designates in writing to Mortgagee.

A communication provided for in this Mortgage will become effective only when the person to
whom it is given receives it or is considered to have received it lf it is mailed by express'
certified or first-class mail, it will be considered to be received on (i) the second business day
afler being mailed or (ii) the day of its receipt, whichever is earlier. If given by telecopy, it will
be considered to be received when conflrmation of complete receipt is received by the
transmitting person during normal business hours on a business day, or on the next business day
if confirmation is received afte¡ normal business hours'
Section 8 - Miscellaneous Provisions. The following miscellaneous provisions are
applicable to this Mortgage:

8.1

Successors and Assigns. The term "Mortgagee" includes Mortgagee, its
successors and assigns, and any subsequent holder or holders of this Mortgage. The term
"Mortgagor" includes Mortgagor and any subsequent owner or owners of the equity of
redemption of the Premises assented to by Mortgagee. All of the agreements of Mortgagor are
binding upon the successors and qssigns of the originat Mortgagor and any person claiming under

Mortgagor.

8.2

Amendment. This Mortgage may not be amended except by written
agreement signed by Mortgagor and Morigagee.

8.3

Headines. The headings contained in this Mortgage a¡e for reference
purposes only and do not affect the meaning or interpretation oftbis Mortgage

8.4

Governing Law. This Mortgage will be construed u¡der and govemed by
the laws of the Commonwealth of Massachusetts.

8.5

Severabilitv. If a provision of this Mortgage is heLd to be invaìid or
unenforceable, the provision will be enforceabie to the extent that a court, after limiiing or
reducing it, considers it reasonable to enforce the provision. Ifit is held to be unreasonable to
enforceìhe provísion to any extent, the provision will be severed from this Mortgage and tho
remainder of this Mortgage will continue in effect.

8-6

Commerciâl Mortqage. The Obligations are commercial obligations and
do not represent a loan used for personal, family or household purposes and is not a consumer
tra¡sactión or ofhsnvise subject to the provisions of ihe Federal Truth in Lending Act or Federal
Reserve Boa¡d. Reguiation Z, M.G.L. c. 140D or any other consumer statutes or regulations or
restrictions.
Section 9 - Secüritv Aqreement Provisions- As to any of the Fixiures not considered by
law to be fixiures, this Mortgage and Security Agreement constitutes a security agreentent under
the Massachusetts uniform commer.cial code (the "code"). For value given, the receipt of
which Mortgagor acknowledges, Mortgagor hereby glallts to Mortgagee a ftrst security interest in
(i) all of the Fixtures, (ii) all rights ofMortgagor in leases and contracts of service relating to the
Èixtnres and (iii) all replacements, renewals and proceeds, including insurance proceeds, with
respecl to the Fixtures. The security interest is given for the purpose of lurther securing payment
and performance of all of the Oblìgations.
In addition to any other rights and remedies Mortgagee may have under the Loan
Documents, Mortgagee has all the rights and remedies of a secured party under the code.
Mortgagor agrees that any requirement under the Code as to reasonable notice will be met
if notice is giìen in the manner ptovided ín this Mortgage at least five (5) business days before
the time of any sâle, disposition ot other event requiring notice.
Upon demand of Mortgagee after the Obligations have become due, Mortgagor agrees to
assemble all of the Fixtures on the Premises, and Mortgagee may elect to foreclose such of the
premises as then comptise Fixtures under either the iaws appiicable to foreclosure of an interest
in real estate or to those applicable to personal property under the Code'
Section 10 - FinancÍal Statements. Mortgagor agrees to deliver or cause to be delivered
to Mortgagee asioìn as available, and in any event within ninety (90) days after the last day of
y"ar or other fiscal year ofMolgagor, or other person referred to, complete annual
"u"h "ul"ndu.
financial statements in form satisfactory to Mortgagee in the reasonable exercise ofitsjudgment,

respect to (i) Mortgagor, (ii) the operations of the Premises, (iii) each guarantor of the
Obligations, and (iv) any other paÍy to the Loan Documents requested by Mortgagee, in each
case containing a statement of eamings for the year, together with a balance sheet as at the close
of the year and in comparative form with the p¡eceding year, prepared by a certified public
accountant, or other person satisfactory to Mortgagee, in conformity with generally accepted
accounting principles applied on a consistent basis. The financial statements will be
âccompanied by the certilication of Mortgagor or thg peJson preparing the statements that to the
best ofhís knowle.dge and beliefthe frnancial statements are accurate and complete.

r ith

Section 11 - Consent to Jurisdictiou Waivers. MORTGÀGOR IRREVOCABLY
UNCONDITIONAILY (i) SUBMITS TO PERSONAL JURISDICTION IN THE
ÄND
COMMONWEALTH OF MASSACI{USETTS OVER ANY ACTION OR PROCEEDING
ARISING OUT OF THE LOAN DOCUMENTS, AND (ii) WAIVES AI-L PERSONAL
RIGIITS UNDER THE LÀwS OF ANY STATE (a) To TRIAL BY JURY, (b) To
OBJECT TO JTIFJSDICTION'WITIIIN TIIE COMMON-WEALTH OF
MASSACHUSETTS OR VENUE IN A PARTICULÄR FORUM WITHIN THE
COMMONWEAITI{ OF MASSACIIUSETTS AND (c) To CLAIM OR RECOVER A¡IY
DAMAGES OTIIERTTIAN ACTUÄT DAMÄGES INCLUDING SPECIAL
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES. MORTGÄGOR
ÄGREES THAT, IN ADDITION TO METHODS OF SERVICE OF PROCESS
PROVIDED FORUNDER APPLICABLE LAW SERVICE MAY BE MADE BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO MORTGAGOR
AT THE ADDRESS PROVIDED IN SECTION 7, }W{ICH SERVICE WILL BE
COMPLETE FM (5) DAYS AFTER BEINC MAILED. This provision may not be
construed to prevent Mortgagee from bringing an action or proceeding or exercising its tights in
any other jurisdiction. Modgagor aclalowledges that it has been i.nformed by Mortgagee that the
provisions ofthis section constitute a material inducement upon which Mortgagee has relied, is
relying and will rely in entering into this Mortgage and the other l-oan Documents, and that it
has reviewed the provisions of this Section with its counsel. Either party may hle an original
counterpart or a copy of this Sectio[',¡rith any court as wdtten evidence ofthe consent of
Mortgagor and Mortgagee to the waiver of their rights to trial by jury.

THIS MORTGAGE SECURES A CONSTRUCTION LOAN AND EACH FUTURE
ADVANCE SHAIL BE SECIIRED BY THIS MORTGAGE TO THE SAME EXTENT AS IF
SAID ADVANCE IIAD BEEN MADE 8N THE DATE OF RECORDING OF THIS
MORTCAGE.

10

WITNESS the execution under seal this 29th day of September, 2006.

COMMONW,EALTH OF MASSACHUSETTS
Suffolk,

September 29, 2006

ss.

72

aay of September, 2006, before me, the undersigned notary public, personally
On nis
appeared Stuad H. Sojcher proved to me through satisfactory evidence of identification, which
( Q-.e"t- , to be the person whose name is sìgnedtl the pïeceding or
were ò
document,
attached ^,<Jn4 and acknowledged to me that she signed it volu¡/tlfily lor its stated purpose.

NotaryP
My co

1045 Broadway (Route llSanders Dr./Denise br.

Poll3l75'F

Exhiþ¡t_A1
FIRST PARCEL _ NOT REGISTERED
That certain parcel ofland in Saugus, Essex County, Massachuselts offthe east side ofRoute 1
(Broadway) and offthe southeasterly side of an unwrought Metropolitan Diskict Commission layout of
March 10, 1932, bounded and described as follows:
Beginning at an iron pin in â stone shown on a plan ofadjoining registered land þeing Land Court
PlanNo. 153024 with Essex South Diskict Certificate of TitleNo. 10353); thence nluring ,,/
NORT1I64055'37" EAST

by Lot B ae shown on a plan dated Novcmber 12, 1981 revised Aug.
f , !982.r
-by Modford Englneering and Suúey and filed wfth Ëssex
South District Regisky of Deeds in Plan Book 173, Plan 42, along a
B{one wall, 115.66 fcet to an angle; thence

NORTH 79'06'15'EAST

by said Lot B on said plan by the wall, 57.64 feet to an angle; thence

SOUTH I9"23'O8"EAST

by said Lot B on said plan by the wall, 133.96 feet to an angle,
thence

EASTERLY

by said Lot B on said plan by the wall by two bounds measuríng
respectively 87.60 feet and I 14.50 feet; thence still

EASTERLY

by said Lot B on said plan, 370 feet; thence

SOUTHEASTERLY

by Lot A-2 on said plan, about 630 feet to a point at.the most
northerly corner ofLot 12 on a plan dated June 19, 1979by Carter
& Towers and filed with said Deeds in Plan Book 160 as Plan 97;
thence

SOUTH 58"22'30" WEST

by Lots 12, 1l and 10, by the end ofDiamond Street, and by Lots9,
8 and ? as shown on the 1979 plan, 788.82 feet, more or less, to land
shown on Land Court Plan No. 30651Ä filed with Essex South
Diskict Certificate of Title No. 33826; thence

NORTHWESTERLY

by said land shown on Land Court Plan No. 3306514, about
1292.87 feet to a Land Court bound in a wall; thence

NORTH I3"59'32" EAST

by the wall, 49.45 feet to an iron pin in the wall shown on Land
Court Plan No. 153024; thence

SOUTHEASTERLY

by Lot

NORTHEÄSTERLY

by Lots 1, 2,3 and 4,160 feet; and thence

NORTHWESTERLY

by Lot 4, 130 feet to the point ofbeginning, the final th¡ee bounds
being by the land shown on Land Court Plan No. 153024.

l,

133.75 feet; thence

.

1045 Broadway

lRoute l)/Sanders Dr./DeniseDr.

Poll3l?5-F

The First, Parcel hereinabove, being the same premises conveyed to Saugus Holding, LLC, by deed of
Saugus Functìng Corp. recorded wiih Essex South District Registry ofDeeds on July 12, 2001 in Book
l7401,Page 462.
SECOND PARCEL-NOT REGISTERED

Those certain parcels ofland in Saugus, Essex County, Massachusetls sih;ated on Denise Drive
andDiamond Street and shown as Lots l, 3,5,7,9 and l1 on a plan entitled "Deflrnitivê Subdivision
Plan Land in Saugus" by Carter B. Towers Eog'r Corp., dated June 19, 1979 and frlod with Essex South
Dlstict Deeds in Ptan Pook t60 as Pls-n 97,
There is, ao eppurteaatrt to tbe parcc¡s the right to uso in common with all others cntitled thcr€to
all streets aûd v'¡ays ihown on said Plan for all purposes for which public ways are uscd in the Town of
Saugus, including specifically suoh rights in Diamond Street and Denise Drive.

Being the same premises conveyed to Saugus Holding, LLC, by deed of Saugus Funding Corp. dated
October 22, 2001 and recorded with said Registry ofDeeds in Book 17843, Pâge 194.

That certain parcel
Massachusetts, bounded and

situate in Saugus, County
as

of

follows:

NORTHWESTERLYby the
by land

NORTHERLY

and Commonwealth

of Lynn Fells Parkway, I 1.12 feet;
of Lillian E. Newhall, I 14.26 feet; and

NORTHEASTERLY
160 feet, and

Y

Y

133.75 feet by land now or

Elizabeth Conley; and

by land now or formerlY ofLouis

said boundaries are determined by ihe Court to be located as
1530

filed with original Certificate of Title No, i0353 in Southem

et al, 50.55 feer
upon plan numbered

istrict for Essex

Broadway @oute l/Sanders Dr./Denise Dr.

polt3175.F

The Third Parcel hereinabove, being
Saugus Fundíng Corp. filed with
383396.

me premises conveyed to Saugus Holding, LLC, by deed

of

Registry Disuict of Essex County as Document Number

FOURTH PARCEL-NOT REGISTERED
Those certain parcels of land in Saugus, Essex County, Massachusetts situated on Denise Drive and
Diamond Street and shown as Lots 2, 4, 6, 8, l0 and 12 on a plan entitled "De,fi4itive Su-bclivigiçn Plsn
Ls¡d tn Sarigus'i by Carter &. Towcrs Ene'feörp., dadCð iunè 19, Ifr9 urd fiied with Essex South
óistrict Deás in Þ'lan Book 16ô as Plan 9?.
There is, as appurtenant to the parcels the right to use in common with all others eûtitled thereto '
all sFeets and ways shown on said Plan fo¡ all purposes for which public ways are used in the Town of
Saugus, including specifically such rights in Diamond Sheet ¿nd Detise Drive.
The Fourth Parcel hereinabove, being the same premises conveyed to Saugus Holding, LLC, by deed of
Saugus Funding Corp. recorded with Essex South District Registry ofDeeds on July i2, 2001 in Book
I7 407 , Page 47 1 .