Exhibit
      10.36







CONSTRUCTION LOAN AND
SECURITY AGREEMENT





This
Construction Loan and Security Agreement is made as of February 6th, 2009, by and between Tradeport
Development III, LLC, a Connecticut limited liability company, with a usual
place of business at 204 West Newberry Road, Bloomfield, Connecticut (the
“Borrower”), Griffin Land & Nurseries, Inc., a Delaware corporation with a
usual place of business at 204 West Newberry Road, Bloomfield, Connecticut (the
“Guarantor”) and Berkshire Bank, a Massachusetts banking corporation, with a
usual place of business at 31 Court Street, Westfield,
Massachusetts.





1.00
DEFINITIONS AND RULES
OF INTERPRETATION.





1.01
DEFINITIONS





The
following terms shall have the meanings set forth in this Section 1.01 or
elsewhere in the provisions of this Agreement or other Loan Documents referred
to below:





“Advance”
shall mean, any disbursement of the proceeds of the Construction Loan made or to
be made by the Lender pursuant to this Agreement.





“Agreement”
shall mean, this Agreement, including the Schedules and Exhibits hereto, all of
which are incorporated herein by reference.





“Appraisal”
shall mean, an appraisal of the value of the Project, determined on an orderly
as stabilized basis, performed by a qualified independent appraiser approved by
the Lender.





“Architect’s
Contract” shall mean, the contract, dated January 19, 2009 between the Borrower
and   Cutler Associates, Inc. (the “Borrower’s Architect”), to
provide for the design of the Improvements and the supervision of the
construction thereof.





“Assignment
of Leases” shall mean, the Assignment of Leases and Rents, dated or to be dated
on or prior to the Closing Date, made by the Borrower in favor of the Lender,
pursuant to which the Borrower assigns its right, title and interest as landlord
in and to the Leases and the rents, issues and profits of the Project, such
Assignment of Leases and Rents to be in form and substance satisfactory to the
Lender.





“Assignment
of Project Documents” shall mean, the Assignment of Project Documents, dated or
to be dated on or prior to the Closing Date, made by the Borrower in favor of
the Lender, pursuant to which the Borrower assigns and grants a security
interest in the Borrower's right, title and interest in and to the Architect's
Contract, the Construction Contract, the Plans and Specifications and the
Project Approvals, such Assignment of Project Documents to be in form and
substance satisfactory to the Lender.








“Borrower”
shall have the meaning as defined in the preamble hereto.





“Borrower’s
Requisition”.  See Section 3.01.





“Building Consultant” shall mean Cutler
Associates, Inc., having an address of 43 Harvard Street, Worcester, MA 
01615.





“Building
Contractor shall mean Cutler Associates, Inc., having an address of 43 Harvard Street, Worcester, MA 
01615.





“Business
Day” shall mean, any day on which the Lender is open for the transaction of
banking business in Springfield, Massachusetts.





“CERCLA”.    See
Section 9.15(a).




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“Closing
Date” shall mean, the first date on which the conditions set forth in Section
12.00 have been satisfied and any Advances are to be made.





“Code”
shall mean, the Internal Revenue Code of 1986.





“Collateral”
shall mean, all of (a) the property, rights and interests of the Borrower that
are or are intended to be subject to the security interests, assignments, and
mortgage liens created by the Security Documents, including, without limitation,
that which is defined in Section 14.00 hereof.





“Commitment”
shall mean, the Commitment Letter for the Construction Loan issued by the Lender
to the Borrower, dated January  22, 2009.





“Completion
Date”  shall mean, twelve (12) months from the Closing
Date.





“Construction
Contract” shall mean, the contract, dated January 8, 2009 between the Borrower
and the Contractor, providing for the construction of the Improvements on the
Land, as amended from time to time, with prior approval of the
Lender.





“Construction
Inspector”  shall mean,  Swinerton Management and Consulting
or, at the Lender's option, either an officer or employee of the Lender or
consulting architects, engineers or inspectors appointed by the Lender from time
to time.





“Construction
Loan”  shall mean, the construction loan which is the subject of this
Agreement.





“Construction
Loan Amount” shall mean the lesser of (i)  seventy percent (70%) of
total Project Costs approved by the Lender and the Construction Inspector to
construct the Improvements; or (ii)  seventy percent (70%) of the
appraised value of the land on an as-built basis, such sums are not to exceed
Twelve Million and 00/100 Dollars ($12,000,000.00).





“Construction
Loan Checking Account”.  See Section 3.03.





“Construction
Note”  shall mean, the Promissory Note  in the principal
face amount of the Construction Loan Amount dated or to be dated on or prior to
the Closing Date, made by the Borrower to the order of the Lender, such
Promissory Note to be in form and substance satisfactory to the
Lender.





“Construction
Schedule”  shall mean, the schedule, broken down by trade, job and
subcontractor, of the estimated dates of commencement and completion of
construction of the Improvements, prepared by the Contractor, approved by the
Lender and attached hereto as Exhibit
“A”.­





“Contingency
Reserve” shall mean, the amount(s) allocated as contingency reserve(s) in the
Project Budget, to be advanced only in accor­dance with the provisions of
Section 2.06 hereof.


“Contractor” shall collectively mean
the Site Work Contractor and the Building Contractor.





“Contractor’s
Subordination Agreement”.  See Section 11.05.





"Debt"
means, as applied to any Person, as of any date of determination (without
duplication):





(a)
            all
      obligations of such Person for borrowed money (whether or not represented
      by bonds, debentures, notes, drafts or other similar instruments) or
      evidenced by bonds, debentures, notes, drafts or similar
      instruments;





(b)
            all
      obligations of such Person for all, or any part of, the deferred purchase
      price of property or services, or for the cost of property constructed or
      of improvements thereon, other than trade accounts payable incurred, in
      respect of property purchased, in the ordinary course of business, which
      are not overdue or which are being contested in good






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faith
      by appropriate proceedings and are not required to be classified on such
      Person's balance sheet, in accordance with GAAP, as
  debt;





(c)
            all
      obligations secured by any Lien on or payable out of the proceeds of
      production from property owned or held by such Person even though such
      Person has not assumed or become liable for the payment of such
      obligation;





(d)
            all
      capital lease obligations of such
Person;





(e)
            all
      obligations of such Person, contingent or otherwise, in respect of any
      letter of credit facilities, bankers' acceptance facilities or other
      similar credit facilities other than any such obligation which relate to
      an underlying obligation which otherwise constitutes Debt of such Person
      hereunder or a current account payable of such Person incurred in the
      ordinary course of business;





(f)
            all
      obligations of such Person upon which interest payments are customarily
      made; and





(g)
            all
      Guaranties by such Person of or with respect to obligations of the
      character referred to in the foregoing clauses (a) through (f) of another
      Person;





provided, however, that in
determining the Debt of any Person, (i) all liabilities for which such Person is
jointly and severally liable with one or more other Persons (including, without
limitation, all liabilities of any partnership or joint venture of which such
Person is a general partner or co-venturer) shall be included at the full amount
thereof without regard to any right such Person may have against any such other
Persons for contribution or indemnity, and (ii) no effect shall be given to
deposits, trust arrangements or similar arrangements which, in accordance with
GAAP, extinguish Debt for which such Person remains legally liable.





“Debt Service Coverage Calculation
Period” means twelve (12) calendar months commencing on December 1st and
ending on  November 30th, and it shall be conducted annually
thereafter.”





“Debt Service Coverage Ratio” means on
each calculation date for the applicable Debt Service Coverage Ratio Calculation
Period, by calculating the ratio of (x) the Net Operating Income from the
Mortgaged Premises for the immediately preceding Debt Service Coverage Ratio
Calculation Period, to (y) the sum of the monthly payments of principal and
interest which were due and payable under the Note for the immediately preceding
Debt Service Coverage Ratio Calculation Period.





“Default”
shall mean, a condition or event which would, with the giving of notice or lapse
of time or both, constitute an Event of Default.





“Default
Rate”  shall mean, the default rate of interest set forth in the
Construction Note.





“Direct
Costs” shall mean, the costs of the , the Personal Property and all labor,
materials, fixtures, machinery and equipment required to construction, equipment
and complete the Improvements in accordance with the Plans and
Specifications.





“Disbursement
Schedule”  shall mean, the schedule of the amounts of Advances
anticipated to be requisitioned by the Borrower each month during the term of
the construction of the Improvements (including an itemization of Direct Costs
and Indirect Costs to be included in each such requisition), approved by the
Lender and attached hereto as Exhibit
“B”.





“Distribution”  shall
mean, the declaration or payment of any distribu­tion of cash or cash flow
to the  members of the Borrower, or other distribution on or in
respect to any membership interests of the Borrower.





“Drawdown
Date”  shall mean, the date on which any Advance is made or is to be
made.





“Draw
Request”  shall mean that with respect to each Advance, the Borrower's
Requisition for such Advance, and documents required by this Agreement to be
furnished to the Lender as a condition to such Advance.





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“Employee
Benefit Plan”  shall mean, any employee benefit plan within the
meaning of Section 3(3) of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate, other than a Multi- employer Plan.





Environmental
Laws.  See Section 9.15.(a).





“ERISA”
shall mean, the Employee Retirement Income Security Act of 1974, as amended and
in effect from time to time.





“ERISA
Affiliate” shall mean, any Person which is treated as a single employer with the
Borrower under Section 414 of the Code.





“Event of
Default”.    See Section 15.01





“Financing
Statements” shall mean, Uniform Commercial Code Form 1 Financing Statement(s)
from the Borrower in favor of the Lender giving notice of a security interest in
the Collateral, such financing statements to be in form and substance
satisfactory to the Lender.





“Fund the
Expansion” means a commitment by Lender to finance the expansion of the Project
at the Mortgaged Premises following the issuance of a final Certificate of
Occupancy.





“Funding
Date of Construction Loan” shall mean, the date when the proceeds of the
Construction Loan are actually advanced in accordance with this
Agreement.





“Funding
Request Documents” .  See Section 3.01.





“Generally
Accepted Accounting Principles” shall mean, principles that
are  consistent with the principles promulgated or adopted by the
Financial Accounting Standards Board and its predecessors, as in effect from
time to time; provided that a certified public accountant would, insofar as the
use of such accounting principles is pertinent, be in a position to deliver an
unqualified opinion (other than a qualification regarding changes in generally
accepted accounting principles) as to financial statements in which such
principles have been properly applied. ­





“Governmental
Authority” shall mean, the United States of America, the State of Connecticut,
any political subdivision thereof, the City/Town of Windsor, and any agency,
authority, department, commission, board, bureau, or instrumentality of any of
them.





“Gross
Revenues” means for each Loan Month, all rents, revenues and other payments
received by, or for the benefit of Borrower in cash or current funds or other
consideration from any source whatsoever in connection with its ownership,
operation and management of the Mortgaged Premises, including all payments
received by Borrower from all tenants or other occupants of the Mortgaged
Premises; provided, however, secured deposits paid to Borrower by tenants under
leases at the Mortgaged Premises and insurance proceeds following a casualty or
damage by fire or other cause at the Mortgaged Premises, shall not be included
in Gross Revenues.








“Guarantor”
shall mean, Griffin Land & Nurseries, Inc.





“Guaranty”
shall mean, the Unconditional Guaranty of Payment and Per­formance, dated or
to be dated on or prior to the Closing Date, made by the Guarantor in favor of
the Lender, pursuant to which the Guarantor guarantees to the Lender the payment
and perfor­mance of the Obligations (such Guaranty to be in form and
sub­stance satisfactory to the Lender) limited to the period of time from
the Closing to the receipt of the Certificate of Occupancy and performance of
the completion of the Project.





“Hazardous
Materials”.    See, Section 9.15(b).





“Head
Office” shall mean 31 Court Street, Westfield, Massachusetts.





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“Impositions”  means
with respect to Borrower relating to the Mortgaged Premises, all taxes of every
kind and nature, sewer rents, charges for water, for setting or repairing meters
and for all other utilities serving the Mortgaged Premises, and assessments,
levies, inspection and license fees and all other charges imposed or assessed
against the Mortgaged Premises or any portion thereof, including the income
derived from the Mortgaged Premises and any stamp or other taxes which might be
required to be paid with respect to the Loan Documents, any of which might, if
unpaid, result in a lien on the Mortgaged Premises or any portion thereof,
regardless of whom assessed.





“Improvements”
shall mean, a Class “A” build-to-suit industrial warehouse containing 304,200
square feet for the Primary Tenant to be constructed on the Land in accordance
with the Plans and Specifications.





“Incipient
Default” means any event or condition which, with the giving of notice or the
lapse of time, or both, would become an Event of Default.





“Indebtedness”
shall mean, all obligations, contingent and otherwise, that in accordance with
generally accepted accounting principles should be classified upon the
Borrower’s balance sheet as liabil­ities, or to which reference should be
made by footnotes thereto, including in any event and whether or not so
classified: (a) all debt and similar monetary obligations, whether direct or
indi­rect; (b) all liabilities secured by any mortgage, pledge, security
interest, lien, charge, or other encumbrance existing on property owned or
acquired subject thereto, whether or not the liability secured thereby shall
have been assumed; and (c) all guarantees, endorsements and other contingent
obligations whether direct or indirect in respect of indebtedness of others,
includ­ing any obligation to supply funds to or in any manner to invest in,
directly or indirectly, the Borrower, to purchase indebtedness, or to assure the
owner of indebtedness against loss, through an agreement to purchase goods,
supplies, or services for the purpose of enabling Borrower to make payment of
the indebtedness held by such owner or otherwise, and the obligations to
reimburse the issuer in respect of any letters of credit.





“Indemnity
Agreement”  shall mean, the Indemnity Agreement Regarding Hazardous
Materials, dated or to be dated on or prior to the Closing Date, made by the
Borrower and the Guarantor in favor of the Lender, pursuant to which the
Borrower and the Guarantor agree to indemnify the Lender with respect to
Hazardous Materials and Environmental Laws, such Indemnity Agreement to be in
form and substance satisfactory to the Lender.





“Indirect
Costs”  shall mean, Title insurance premiums, survey charges,
engineering fees, architectural fees, real estate taxes, ap­praisal costs,
loan fees and interest payable to the Lender under the Construction Loan,
premiums for insurance, marketing, advertising and leasing costs, brokerage
commissions, legal fees, accounting fees, overhead and administrative costs, and
all other expenses which are expenditures relating to the Project and are not
Direct Costs.





"Interest
Charges" for any period shall mean all interest (including the imputed interest
factor in respect of Capitalized Leases) and all amortization of debt discount
and expense on any particular Indebtedness for which such calculations are being
made. Computations of Interest Charges on a proforma basis for indebtedness
having a variable interest rate shall be calculated at the rate in effect on the
day of any determination.





"Interest
Expense" means for any period, the sum of the following amounts for the
Borrower: (a) the aggregate amount of all interest accrued (whether or not
actually paid) during such period in respect of Debt (including, without
limitation, imputed interest on Capital Leases), plus (b) amortization of debt
discount and expense.








“Investments”
shall mean, all expenditures made and all liabilities incurred
(contingently  or otherwise) for the acquisition of stock or
Indebtedness of, or for loans, advances, capital contributions or transfers of
property to, or in respect of any guaranties (or other commitments as described
under Indebtedness), or obliga­tions of, any Person. In determining the
aggregate amount of Investments outstanding at any particular
time:  (a) the amount of any Investment represented by a guaranty
shall be taken at not less than the principal amount of the obligations
guaranteed and still outstanding; (b) there shall be included as an Investment
all interest accrued with respect to Indebtedness constituting an Investment
unless and until such interest is paid; (c) there shall be deducted in respect
of each such Investment any amount received as a return of capital (but only by
repurchase, redemp­tion, retirement, repayment, liquidating dividend or
liquidating distribution); (d) there shall not be deducted in respect of any




5




Investment
any amounts received as earnings on such Investment, whether as dividends,
interest or otherwise, except that accrued interest included as provided in the
foregoing clause (b) may be deducted when paid; and (e) there shall not be
deducted from the aggregate amount of Investments any decrease in the value
there­of.





“Land”
shall mean, the real property located at 100 International Drive, Windsor,
Connecticut, and described in Exhibit “C” to this
Agreement.





“Lease(s)”
shall mean, leases, licenses and agreements, whether written or oral, relating
to the use or occupation of space in the Improve­ments or on the Land by
Persons other than the Borrower, and as of the date hereof, it shall mean that
certain Lease between the Borrower and the Primary Tenant dated January 9, 2009
concerning the Mortgaged Premises.





“Lender”  shall
mean, Berkshire Bank, its successors and assigns.





“LIBOR” (London Interbank Offered Rate)
means the rate for deposits in U.S. Dollars for a period of the Designated
Maturity, which appears on Telerate Page 3750 as of 11:00 AM. London time, on
the day that is two London banking days prior to the Reset Date.  If
such rate does not appear on Telerate Page 3750, the rate for that adjustment
date will be the arithmetic mean of the rates quoted by major banks in London,
selected by the Lender for the Designated Maturity, as of 11:00 A.M., London
time, on the day that is two London banking days prior to the Reset
Date.





"LIBOR
Interest Rate" means, for the purpose of this Agreement, the 30-day LIBOR Rate
as announced in the Telerate from time-to-time, plus two hundred seventy-five
(275) basis points; provided, however, for the purposes of this Agreement the
30-day LIBOR Rate, plus two hundred seventy-five (275) basis points, shall have
a floor of (and shall never be lower then) 4% during the Interest Only Period
(as defined in the Note).








"LIBOR
Loan" means any Loan when and to the extent that the interest rate therefore is
determined by reference to the LIBOR Interest Rate.





“Loan
Documents” shall mean, this Agreement, the Construction Note, the Indemnity
Agreement and the Security Documents, and all other agreements, documents and
instruments now or hereafter evidencing, securing or otherwise relating to the
Construction Loan.





"London
Banking Day" shall mean any BankingDay on which commercial
banks are open for international business (including dealing in U.S. dollar ($)
deposits) in London, England and Boston, Massachusetts.





“Maturity
Date” shall mean, the earlier of (i) the date of the termination of the Lender’s
obligation to make Advances pursuant to Section 15.02 hereof of (ii) ten
(10)  years from the Closing Date, whichever occurs
first.





“Mortgage”  shall
mean, the  Open-End Construction Mortgage, dated or to be dated on or
prior to the Closing Date, made by the Borrower in favor of the Lender, pursuant
to which the Borrower grants a first mortgage lien and first security interest
in and to the Project, such Mortgage to be in form and substance
satis­factory to the Lender.





“Mortgaged Premises” shall mean the
Land, Improvements and other property secured by the Mortgage.








“Net Cash
Flow” for each Loan Month shall mean, Net Operating Income, reduced by all
monthly payments of principal and interest under the Construction
Note.





“Net
Operating Income”  for each Loan Month shall be calculated by Lender
based upon Lender’s review of Borrower’s financial statements provided to
Lender, together with such other financial information as Lender may request,
and shall mean the Gross Revenues for the Loan Month less all Operating Expenses
for the Loan Month.  For the purposes of testing Debt Service Coverage
Ratio for the initial test, annual Net Operating Income shall mean all in-place
Gross Revenues evidenced by a current rent roll (annualized) less budgeted
Operating




6




Expenses
(budget subject to review and approval by Lender) for the upcoming twelve (12)
month period, adjusted for interest and non-cash expenses.





“Obligations”  shall
mean, all indebtedness, obligations and liabilities of the Borrower to the
Lender existing on the date of this Agreement or arising thereafter, direct or
indirect, joint or several, absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured, arising by contract, operation
of law or otherwise, including, without limitation, those arising or incurred
under this Agreement or any of the other Loan Documents, including without
limitation any SWAP Agreement(s) or in respect of any of the Advances or the
Construction Note or other instruments at any time evidencing any
thereof.





“Outstanding”
shall mean, that with respect to the Advances or the Construction Loan, the
aggregate unpaid principal thereof, together with any unpaid and accrued
interest thereon as of any date of determination.








“Permitted
Liens”  shall mean, liens, security interests and other encumbrances,
permitted by Section 11.05, as well as those encumbering the land and
Improvements mortgaged to the Lender as described in Exhibit
“D”.





“Person”
shall mean, any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivi­sion thereof.





“Personal
Property”  shall mean, all materials, furnishings, fixtures,
furniture, machinery, equipment and all items of tangible per­sonal property
now or hereafter owned or acquired by the Borrow­er, wherever located, and
either (i) to be located on or incor­porated into the Land or the
Improvements, (ii) used in connec­tion with the construction of the
Improvements or (iii) to be used in connection with the operation or maintenance
of the Land or the Improvements or both.





“Plans
and Specifications”  shall mean, the plans and specifications for the
Improvements prepared by the Borrower's Architect and more particularly
identified on Exhibit
“E” attached hereto.





“Primary Tenant” means The Tire Rack,
Inc.








“Project”  shall
mean, the Land, Improvements and Personal Property.





“Project
Approvals”  shall mean, all approvals, consents, waivers, orders,
agreements, acknowledgments, authorizations, permits and licenses required under
applicable Requirements or under the terms of any restriction, covenant or
easement affecting the Project, or otherwise necessary or desirable, for the
ownership and acquisition of the Land and the Improvements, the
construc­tion and equipping of the Improvements, and the use, occupancy and
operation of the Project following completion of construction of the
Improvements, whether obtained from a Governmental Au­thority or any other
Person.





“Project
Budget”  shall mean, the budget for total estimated Project Costs,
submitted by the Borrower, approved by the Lender and the Construction
Inspector, and attached hereto as Exhibit “F” (as
amended from time to time with the prior approval of the Lender), which
includes: (a) a line item cost breakdown for Direct Costs by trades, jobs and
subcontractors; (b) a line item cost break­ down for Indirect Costs; (c) a
construction schedule setting forth the anticipated dates of completion of
incremental portions of the various subcategories of work in the construction
and equipping of the Project; and (d) a schedule of the sources of funds to pay
Project Costs, indicating by item the portion of Project Costs to be funded
through the Construction Loan and Required Equity Funds.





“Project
Costs”  shall mean, the sum of all Direct Costs and Indirect Costs
that have been or will be incurred by the Borrower in connection with the
acquisition of the Land, the construction, equipping and completion of the
Improvements, the marketing and leasing of leasable space in the Improvements,
and the operation and carry­ing of the Project through the Maturity
Date.





7




“Real
Estate”  shall mean, all real property at any time owned, leased (as
lessee or sublessee) or operated by the Borrower.





“Record”  shall
mean, the grid attached to the Construction Note, or the continuation of such
grid, or any other similar record, including computer records, maintained by the
Lender with respect to the Construction Loan.





“Release”.  See
Section 9.16(c) (iii).





“Requirements”
shall mean, any law, ordinance, code, order, rule or regulation of any
Governmental Authority relating in any way to the acquisition and ownership of
the Project, the construction of the Improvements, or the use, occupancy and
operation of the Project following the completion of construction of the
Improve­ments, including those relating to subdivision control, zoning,
building, use and occupancy, fire prevention, health, safety, sanitation,
handicapped access, historic preservation and pro­tection, tidelands,
wetlands, flood control, access and earth removal, and all Environmental
Laws.





“Required
Equity Funds” shall mean, with respect to the Construction Loan, Eight Million
Nine Hundred Fifteen Thousand Eight Hundred Ninety One ($8,915,891.00) which
amount shall be infused by Borrower prior to any Advance hereunder.





“Retainage”.  See
Section 2.03.





“Security
Documents” shall mean, the Mortgage,  the Assignment of Project
Documents, the Assignment of Leases, the Financing Statements and the Guaranty,
and any other agreement, document or instrument now or hereafter securing the
Obligations.





“Site
Work Contractor” shall mean the Simscroft Echo Farms Incorporated.





“Survey”  shall
mean, an instrument survey of the Land and the
Improve­ments  prepared in accordance with the Lender's survey
require­ments, such survey to be satisfactory to the Lender in form and
substance.





“Surveyor
Certificate”  shall mean, with respect to any Survey, a
cer­tificate executed by the surveyor who prepares such Survey dated as of a
recent date and containing such information relating to the Project as the
Lender or the Title Insurance Company may require, such certificate to be
satisfactory to the Lender in form and substance.





“Swap
Agreement” means the ISDA Master Agreement (1992 multicurrency – cross border)
dated as of  February 6, 2009 between Lender and Borrower, together
with the Schedule thereto and the Confirmation thereunder, each dated as
of  February 6, 2009.





“Telerate”
means, when used in connection with any designated page and any floating rate
option, the display page so designated on Bridge’s Telerate Service (or such
other page as may replace that page on that service), or such other service as
may be nominated as the information vendor, for the purpose of displaying rates
or prices comparable to that floating rate option.








“Taking”
shall mean, any condemnation for public use of, or damage by reason of, the
action of any Governmental Authority, or any transfer by private sale in lieu
thereof, either temporarily or permanently.





"Tangible
Net Worth" means as of any date of determination, the net value of the
Borrower's Stockholder's Equity, as defined according to GAAP less the book
value as of such date of Intangible Assets.





“Termination
Date”  shall mean, (i) the Maturity Date, or (ii)  the date
of the termi­nation of the Lender's obligations to make Advances pursuant to
Section 15.02 hereof, whichever date occurs first.





“Title
Insurance Company” shall mean, First American Title Insurance
Company.





8




“Title
Policy” shall mean, an ALTA standard form title insurance policy issued by the
Title Insurance Company (with such reinsurance or co-insurance as the Lender may
require, any such reinsurance to be with direct access endorsements) in an
amount not less than Twelve Million and 00/100 Dollars ($12,000,000.00) insuring
the priority of the Mortgage and that the Borrower holds marketable fee simple
title to the Project, subject only to such exceptions as the Lender may approve
and which shall not contain exceptions for mechanics liens, persons in occupancy
or matters which would be shown by a survey, shall not insure over any matter
except to the extent that any such affirmative insurance is acceptable to the
Lender in its sole discretion, and shall contain a pending disbursements clause
or endorsement and such other endorsements and affirmative insurance as the
Lender in its sole discretion may require.








1.02           RULES OF
INTERPRETATION.





(a) A
reference to any agreement, budget, document or schedule shall include such
agreement, budget, document or schedule as revised, amended, modified or
supplemented from time to time in accordance with its terms and the terms of
this Agreement.





(b) The
singular includes the plural and the plural includes the singular.





(c) A
reference to any law includes any amendment or modification to such
law.





(d) A
reference to any Person includes its permitted successors and permitted
assigns.





(e)
Accounting terms not otherwise defined herein have the meaning assigned to them
by generally accepted accounting principles applied on a consistent basis by the
accounting entity to which they refer.





(f) The
words "include", "includes" and "including" are not limiting.





(g) The
words "approval" and "approved", as the context so determines, means an approval
in writing given to the party seeking approval after full and fair disclosure to
the party giving approval of all material facts necessary in order to determine
whether approval should be granted.





(h)
Reference to a particular Section refers to that section of this Agreement
unless otherwise indicated.





(i) The
words "herein", "hereof", "hereunder" and words of like import shall refer to
this Agreement as a whole and not to any particular section or subdivision of
this Agreement.





2.00   AGREEMENT TO MAKE ADVANCES;
LIMITATIONS.





2.01   AGREEMENT
TO MAKE ADVANCES.





Subject
to the terms and conditions of this Agreement and following the infusion of the
Required Equity Funds from the Borrower into the Project, the Lender agrees to
lend to the Borrower and the Borrower  shall borrow from time to time
between the Closing Date and the Termination Date upon submission by the
Borrower of a Draw Request in accordance with Section 3.01, such amounts as are
requested by the Borrower up to a maximum aggregate principal amount equal to
the Construction Loan Amount to pay for Project Costs actually incurred by the
Borrower and reflected in the Project Budget as being funded by the Construction
Loan. Each Draw Request for an Advance hereunder shall constitute a
representation and warranty by the Borrower that the conditions set forth in
Section 12.00, in the case of the initial Advance, and Section 13.00, in the
case of all other Advances, have been satisfied on the date of such Draw
Request.





2.02   PROJECT
BUDGET.





The
Project Budget reflects, by category and line items, the purposes and the
amounts for which funds to be Advanced by the Lender under this Agreement are to
be used. The Lender shall not be required to disburse for any




9




category
or line item more than the amount specified therefore in the Project Budget,
unless reflected on a revised Project budget previously approved by
Lender.





2.03  AMOUNT OF
ADVANCES.





In no
event shall the Lender be obligated to Advance more than the Construction Loan
Amount, or, if less, total Project Costs actually incurred by the Borrower,
less, in either case, the Required Equity Funds. In no event shall any Advance
for Direct Costs of constructing the Improvements exceed an amount equal to (a)
the total value of the labor, materials, fixtures, machinery and equipment
completed, approved and incorporated into the Land or the Improvements prior to
the date of the Draw Request for such Advance, less (b) retainage in an amount
equal to five  percent (5%) of such total value ("Retainage"), less
(c) the total amount of any Advances previously made by the Lender for such
Direct Costs. Retainage shall not be required to be Ad­vanced by the Lender
to the Borrower.    With respect to any other Direct Costs
and all Indirect Costs, in no event shall any Advance exceed an amount equal to
the amount of such Direct Costs and Indirect Costs approved by the Lender,
incurred by the Borrower prior to the date of the Draw Request for such
Advances, and theretofore paid or to be paid with the proceeds of such Advance,
less the total amount of any Advances previously made by the Lender for such
Direct Costs and Indirect Costs.





2.04
QUALITY OF
WORK.





No
Advance shall be due unless all work done at the date the Draw Request for such
Advance is submitted is done in a good and workmanlike manner and without
defects, as confirmed by the report of the Construction
Inspec­tor.





2.05
COST OVERRUNS AND
SAVINGS.





If the
Borrower becomes aware of any change in Project Costs which will increase or
decrease a category or line item of Project Costs reflected on the Project
Budget (as the Project Budget is revised from time to time and approved by the
Lender), the Borrower shall immediately notify the Lender in writing and
promptly submit to the Lender for its approval a revised Project Budget. If the
revised Project Budget indicates an increase in a category or line item of
Project Costs, no further Advances need be made by the Lender unless and until
(a) the revised Project Budget so submitted by the Borrower is approved by the
Lender, and (b) the Borrower has deposited with the Lender any additional
Required Equity Funds required in accordance with this Agreement (if any). If
the revised Project Budget indicates a decrease in a category or line item of
Project Costs, no reductions in Project Costs will be made or savings
reallocated by the Borrower unless and until (a) the revised Project Budget so
submitted by the Borrower is approved by the Lender, and (b) in the case of
decreases in a category or line item of Direct Costs, the Borrower has furnished
the Lender and the Construction Inspector with evidence satis­factory to
them that the labor performed and materials supplied in connection with such
category or line item of Direct Costs have been satisfactorily completed in
accordance with the Plans and Specifications and paid for in full.





2.06CONTINGENCY
RESERVE





The
amount allocated as Con­tingency Reserve in the Project Budget is not
intended to be disbursed and will only be disbursed upon the prior approval of
the Lender, which approval will not be unreasonably withheld. The disbursement
of a portion of Contingency Reserve shall in no way prejudice the Lender from
withholding disburse­ment of any further portion of Contingency
Reserve.





2.07
OVER
ADVANCES





The
making of loans, Advances or credits by the Lender in excess of the Construction
Loan Amount is for the benefit of the Borrower hereunder and shall be at the
Lender's sole discretion. Such loans, Advances, and credits shall
con­stitute Advances and shall be repayable with interest as provided in the
Construction Note. The making of any such loans, Advances or credits in excess
of the Construction Loan Amount on any one occasion shall not obligate the
Lender to make any such loans, Advances or credits on any other occasion nor
permit such loans, Advances or credits to remain outstanding.





2.08  MANDATORY
BORROWING





10




Subject
to Section 10.14, notwithstanding anything to the contrary contained herein, and
provided that the Lender has not commenced exercise of its cumulative rights and
remedies following an Event of Default, the Borrower must borrow the Twelve
Million and 00/100 Dollars ($12,000,000.00) on or before the last day of the
Interest Only Period (defined in the Construction Note).  In the event
that the Borrower completes construction for less than the Project Budget, it is
still required to draw down the unused portion of the Loan which shall be held
in an interest bearing cash collateral account with the Lender (the “Reserve
Account”).  The Borrower, provided no Event of Default has occurred,
may  use the Reserve Account following the first anniversary of the
date hereof, to pay its monthly principal obligations to the Lender under the
Construction Note.








2.09  FUNDS DEPOSITED WITH
LENDER





All funds
of Borrower which are deposited with Lender pursuant to this Agreement or any
other Loan Documents shall be held in an interest bearing account and all funds
which are deposited in the Reserve Account may be co-mingled with Lender’s
general funds.  Notwithstanding any information or requirement to the
contrary set forth earlier in this Agreement, any interest which accrues on said
funds shall, at Lender’s sole option, be paid to Borrower or be held as part of
the applicable funds being held by Lender for the same purpose for which the
principal sum of said funds are being held by the Lender.  To secure
all of Borrower’s Obligations to Lender under the Loan Documents, Borrower
hereby grants to Lender a security interest in all funds now or hereafter
deposited with the Lender in the Reserve Account or otherwise in Lender’s
possession, custody or control  pursuant to the provisions of this
Agreement.  So long as any Event of Default exists, Lender shall have
such rights with respect to such funds and any interest accrued thereon as are
provided by applicable law and may apply such funds toward the satisfaction of
Borrower’s Obligations hereunder or under any other Loan Documents in Lender’s
sole discretion.  Without limiting any of the foregoing provisions, at
the exclusive request of Lender, Borrower shall execute and deliver from
time-to-time such documents as may be necessary or appropriate, in Lender’s sole
discretion to assure Lender that it has a first priority perfected security
interest in and lien on, all funds deposited in the Reserve Account or otherwise
with the Lender.








3.00
MAKING THE
ADVANCES





3.01
DRAW
REQUEST





At such
time as the Borrower shall desire to obtain an Advance, the Borrower shall
complete, execute and deliver to the Lender the Borrower's Requisition and the
Funding Request Documents in the form of Exhibit “G”attached
hereto (hereinafter referred to as "Bor­rower's Requisition"). Each
Borrower's Requisition shall be accompanied by:





(a) If
the Borrower's Requisition includes payments for Direct Costs, it shall be
accompanied by a completed and itemized Direct Cost Statement in the form of
Schedule I of
Exhibit “G”
attached hereto, executed by the Borrower, ­ together with invoices for all
items of Direct Cost covered thereby; .





(b) If
the Borrower's Requisition includes amounts to be paid to the Contractor under
the Construction Contract, it shall be accompanied by: (i) a completed and fully
itemized Application and Certificate for Payment (AIA Document G702 or similar
form approved by the Lender) containing the certification of the Contractor and
the Borrower's Architect as to the accuracy of same, and showing all
subcontractors and materialmen by name and trade or job, the total amount of
each subcontract or purchase order, the amount theretofore paid to each
subcontractor or materialman as of the date of such application, and the amount
to be paid from the proceeds of the Advance to each subcontractor and
materialman; (ii) a certificate of the Contractor in the form of Exhibit “H” attached
hereto; (iii) a certificate of the Borrower's Architect in the form of Exhibit
“I”  attached hereto; and (iv) copies of requisitions and
invoices from subcontractors and materialmen supporting all items of cost
covered by such application;





11




(c) If
the Borrower's Requisition includes payments for Indirect Costs, it shall be
accompanied by a completed and itemized Indirect Cost Statement in the form of
Schedule II of
Exhibit “G”
attached hereto, executed by the Borrower, together with invoices for all items
of Indirect Costs covered thereby;





(d)
written lien waivers from the Contractor and such laborers, subcontractors and
materialmen for work done and materials supplied by them which were paid for
pursuant to the next preceding Draw Request;





(e) a
written request of the Borrower for any neces­sary changes in the Plans and
Specifications, the Project Budget, the Disbursement Schedule or the
Construction Schedule;





(f)
copies of all change orders and construction change directives, accompanied by a
change order summary prepared by and executed by the Borrower, copies of all
subcontracts, and, to the extent requested by the Lender, of all inspection or
test reports and other documents relating to the construction of the
Improvements, not previously delivered to the Lender;





(g) copy
of the Construction Inspection Report; and





(h) such
other information, documentation and certi­fication as the Lender shall
reasonably request.





3.02
NOTICE AND FREQUENCY
OF ADVANCES





Each Draw
Request shall be submitted to the Lender at least fourteen (14) Business Days
prior to the date of the requested Advance, and no more fre­quently than
once each month.­





3.03
DEPOSIT OF FUNDS
ADVANCED





The
Borrower shall open and maintain a non-interest bearing Construction Loan
checking account with the Lender (the "Construction Loan Checking Account").
Except as otherwise provided for in Sections 3.04 and 3.05 hereof, the Lender
shall deposit the proceeds of each Advance into the Construction Loan Checking
Account.











3.04 ADVANCES
TO CONTRACTOR





In its
sole discretion, following an Event of Default, the Lender may make any or all
Advances through the Title Insurance Company and any portion of the Construction
Loan so disbursed by the Lender shall be deemed disbursed as of the date on
which the Lender makes such disbursement.  At its option, in its sole
discretion, the Lender may make any or all Advances for Direct Costs incurred
under the Construction Contract directly to Contractor for deposit in an
appropriately designated special bank account, and the execution of this
Agreement by the Borrower shall, and hereby does, con­stitute an irrevocable
authorization so to advance the proceeds of the Construction Loan. No further
authorization from the Borrower shall be necessary to warrant such direct
advances to the Contractor and all such advances shall satisfy pro tanto the
obligations of the Lender hereunder and shall be secured by the
Mortgage  and the other Security Documents as fully as if made
directly to the Borrower.





3.05
ADVANCES TO TITLE
INSURANCE COMPANY OR TO OTHERS





In its
sole discretion, following an Event of Default, the Lender may make any or all
Advances through the Title Insurance Company and any portion of the Construction
Loan so disbursed by the Lender shall be deemed disbursed as of the date on
which the Lender makes such disbursement.  At its option, the Lender
may make Advances of portions of the proceeds of the Construction Loan to any
Person to whom the Lender in good faith determines payment is due and any
portion of the Construction Loan so disbursed by the Lender shall be deemed
disbursed as of the date on which the Lender makes such
disbursement.  The execution of this Agreement by the Borrower shall,
and hereby does, constitute an irrevocable authorization so to advance the
proceeds of the Construction Loan. No further authorization from the Borrower
shall be necessary to warrant such direct Advances and all such Advances shall
satisfy pro tanto the obligations of the Lender hereunder and shall be secured
by the Mortgage and the other Security Documents as fully as if made directly to
the Borrower.





12




3.06
ADVANCES DO NOT
CONSTITUTE A WAIVER





No
Advance made by the Lender shall constitute a waiver of any of the conditions to
the Lender's obligation to make further Advances nor, in the event the Borrower
fails to satisfy any such condition, shall any such Advance have the effect of
precluding the Lender from thereafter declaring such failure to satisfy a
condition to be an Event of Default.





4.00  THE CONSTRUCTION NOTE;
INTEREST; MATURITY; SWAP AGREEMENT; PAYMENTS AND PREPAYMENT.





4.01  THE
CONSTRUCTION NOTE





The
obligation of the Borrower to pay the Construction Loan Amount or, if less, the
aggregate unpaid principal amount of all Advances made by the Lender hereunder
plus accrued interest thereon, shall be evidenced by the Construction Note, a
copy of which is annexed hereto as Exhibit
“J”.  In the event the Construction Note­ is lost,
destroyed or mutilated at any time prior to payment in full of the indebtedness
evidenced thereby, the Borrower shall execute a new note substantially in the
form of the Note. The Construction Note shall not be necessary to establish the
indebtedness of the Borrower to the Lender on account of Advances made under
this Agreement.





4.02  [RESERVED]





4.03           SWAP
AGREEMENT





Borrower
shall enter into the Swap Agreement with Lender or its affiliates with respect
to all of the Construction Note (any such agreement or arrangement shall be in
form and substance reasonably satisfactory to Lender) in order to hedge or
minimize risk with respect to the fluctuation of interest rates.  The
Swap Agreement shall be for a stipulated term equal to the term of the Note
shall, at all times, be in a notional amount equal to Twelve Million and 00/100
Dollars ($12,000,000.00).  If the Swap Agreement shall expire and
leave any principal of the Construction Note uncovered thereby, or if for any
other reason any principal portion of the Construction Note be uncovered by the
Swap Agreement, such uncovered amount shall be immediately due and payable if
the Borrower is unable to negotiate a new Swap Agreement for such uncovered
amount with Lender within four (4) business days following notice from Lender to
Borrower.  In the event Lender no longer offers Swap Agreements,
Borrower may negotiate a new Swap Agreement with a different lender for such
uncovered amount.  The Swap Agreement is subject to termination
pursuant to certain provisions described therein, including without limitation,
any payment of principal of the Construction Note prior to the due date of such
payment.







4.04
THE
RECORD





The
Borrower irrevocably authorizes the Lender to make or cause to be made, at or
about the time of the Drawdown Date of any Advance or at the time of receipt of
any payment of the principal of the Construction Note, an appropriate notation
on the Lender's Record reflecting the making of such Advance or (as the case may
be) the receipt of such payment. The outstanding amount of the Construction Loan
set forth on the Lender's Record shall be prima facie evidence of the principal
amount thereof owing and unpaid to the Lender, but the failure to record, or any
error in so recording, any such amount on the Lender's Record shall not limit or
otherwise affect the obligations of the Borrower here­ under or under the
Note to make payments of principal or interest on the Construction Note when
due.







4.05
INTEREST ON
ADVANCES





13




Each
Advance shall bear interest for the period commencing on the Drawdown Date of
such Advance until paid in full at the rate or rates set forth in the
Construction Note. The Borrower promises to pay interest on each Advance in
arrears in the manner and at the time set forth in the Construction
Note.





4.06  CALCULATION AND PAYMENT OF
INTEREST





Interest
on each LIBOR Loan shall be calculated on the basis of a year of 360 days for
the actual number of days elapsed for the applicable interest
period.





Interest
on the Loans shall be paid in immediately available funds at the Principal
Office of the Lender.  Interest shall be calculated daily and payable
monthly, in arrears, in accordance with the terms of the Construction
Note.





4.07 PRINCIPAL
PAYMENTS





Principal
payments shall be made in accordance with the Construction
Note.   All unpaid  principal and all unpaid
and  accrued interest thereon shall be due and payable, in full on the
Maturity Date.





4.08MATURITY





The
Borrower promises to pay the Lender on the Maturity Date, and there shall become
absolutely due and payable on the Maturity Date, all of the unpaid principal on
the Construction Loan outstanding on such date together with any  and
all accrued and unpaid interest thereon.





4.09FUNDING
LOSS INDEMNIFICATION





The Borrower shall also pay to the
Lender, upon the request of the Lender, such amount or amounts as shall be
sufficient (in the reasonable opinion of the Lender) to compensate it for any
loss, cost, or expense (including the then present value of any lost interest
earnings as a result of any re-deployment of prepaid funds) incurred as a result
of any payment of a LIBOR Loan on a date other than a scheduled principal
payment day or the last day of the interest period for such Loan including, but
not limited to, acceleration of the Loans by the Lender pursuant to Section
15.00


.





Upon
request, Lender will provide Borrower with reasonable documentation of the
calculation of compensation requested and relating hereto.





4.10  PREPAYMENT
PREMIUM





The
Borrower may prepay the Construction Note in whole or in part with accrued
interest from the date of such prepayment on the amount prepaid provided that it
pays any termination or adjustment or other breakage fees or costs pursuant to
the Swap Agreement as well as any other costs and expenses required under this
Agreement including without limitation those described in section
4.09.








5.00           [RESERVED]





6.00           LOAN FEES; PAYMENTS AND
COMPUTATIONS; CAPITAL ADEQUACY, ETC.





6.01           LOAN FEE





The
Borrower agrees to pay to the Lender on or before the Closing Date of the
Construction Loan a loan commitment fee in the amount of $60,000.





6.02           FUNDS FOR
PAYMENT





14




(a) All
payments of principal, interest, fees and any other amounts due under the
Construction Note or under any of the other Loan Document shall be made to the
Lender at its Head Office or at such other location that the Lender may from
time to time designate, in each case not later than 2:00 p.m. (Boston time) on
the date when due in immediately available funds in lawful money of the United
States.





(b) All
payments by the Borrower under the Construction Note and under any of the other
Loan Documents shall be made without setoff or counterclaim and free and clear
of and without deduc­tion for any taxes, levies, imposts, duties, charges,
fees, deductions, withholdings, compulsory loans, restrictions or conditions of
any nature now or hereafter imposed or levied by any jurisdiction or any
political subdivision thereof or taxing or other authority therein unless the
Borrower is compelled by law to make such deduction or withholding. If any such
obligation to deduct or withhold is imposed upon the Borrower with respect to
any amount payable by it under the Construction Note or under any of the other
Loan Documents, the Borrower will pay to the Lender, on the date on which such
amount is due and payable under the Construction Note or under such other Loan
Document, such additional amount as shall be necessary to enable the Lender to
receive the same amount which the Lender would have received on such due date
had no such obligation been imposed upon the Borrower. The Borrower will deliver
promptly to the Lender certificates or other valid vouchers for all taxes or
other charges deducted from or paid with respect to payments made by the
Borrower under the Construction Note or under such other Loan
Document.





­           6.03COMPUTATIONS





Except as
otherwise provided in this Agreement, the Construction Note, whenever a payment
thereunder or under any of the other Loan Documents becomes due on a day that is
not a Business Day, the due date for such payment shall be extended to the next
succeeding Business Day, and interest shall accrue during such extension. The
outstanding amount of the Construction Loan as reflected on the Record from time
to time shall be considered correct and binding on the Borrower unless within
ten (10) Business Days after receipt of any notice by the Borrower of such
outstanding amount, the Borrower shall notify the Lender to the
contrary.





6.04
ILLEGALITY





Notwithstanding
any other provision in this Agreement, if the Lender determines that any
applicable law, rule, or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank, or comparable agency charged with the interpretation or administration
thereof, or compliance by the Lender (or its Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank, or comparable agency shall make it unlawful or impossible for the
Lender (or its Lending Office) to (1) maintain the Construction Loan, then upon
notice to the Borrower by the Lender the Construction Loan shall terminate; or
(2) maintain or fund LIBOR Loans, then upon notice to the Borrower by the Lender
the outstanding principal amount of the LIBOR Loans, together with interest
accrued thereon, and any other amounts payable to the Lender under this
Agreement shall be repaid or converted to a prime Loan at the option of the
Borrower (a) immediately upon demand of the Lender if such change or compliance
with such request, in the judgment of the Lender, requires immediate repayment;
or (b) at the expiration of the last Interest Period to expire before the
effective date of any such change or request.








6.05
DISASTER





Notwithstanding
anything to the contrary herein, if the Lender determines (which determination
shall be conclusive) that quotations of interest rates for the relevant deposits
referred to in the definition of LIBOR  is not being provided in the
relevant amounts or for the relative maturities for purposes of determining the
rate of interest on LIBOR Loan as provided in this Agreement then the Lender
shall forthwith give notice thereof to the Borrower, whereupon (a) the
obligation of the Lender to make LIBOR Loans shall be suspended until the Lender
notifies the Borrower that the circumstances giving rise to such suspension no
longer exist; and (b) the Borrower shall repay in full, or convert to
a  Loan with a comparable rate of interest, in full, the then
outstanding principal amount of  the Loan, together with accrued
interest thereon.





6.06  ADDITIONAL
PAYMENTS





15




If after
the date of this Agreement the Lender determines that (i) the adoption of or
change in any law, rule, regulation or guideline regarding capital requirements
for banks or bank holding companies, or any change in the interpretation or
application thereof by any governmental authority charged with the
administration thereof, or (ii) as a result from any change after the date of
this Agreement in United States, Federal, State, Municipal or Foreign Laws or
Regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof which changes the basis of taxation of any amounts
payable to the Lender under this Agreement, including the Construction
Loan,  (other than taxes imposed on the overall net income of the
Lender for any of such loans by the jurisdiction where the principal office of
the Lender is located), then the Lender shall notify the Borrower
thereof.  The Borrower agrees to pay to the Lender the amount of such
reduction in the return on capital as and when such reduction is determined,
upon presentation by the Lender of a statement in the amount and setting forth
the Lender's calculation thereof, which statement shall be deemed true and
correct absent manifest error.  In determining such amount, the Lender
may use reasonable averaging and attribution methods.





7.00  COLLATERAL SECURITY AND
GUARANTY





7.01MORTGAGE
LIEN





The
Obligations shall be secured by, inter alia,  (i)
a perfected first priority mortgage lien on the Project, (ii) a perfected first
absolute assignment of rentals and leases concerning the Project, and (iii) a
first perfected priority  security interest in all Collateral, whether
now owned or hereafter acquired, pursuant to the terms of Section 14.00 of this
Agreement and the Security Documents to which the Borrower is a
party.  The Obligations shall also be guaranteed pursuant to the terms
of the Guaranty.  This security interest is in addition to, and not in
substitution of, a security interest of even date granted from Borrower to
Lender, pursuant to an Open-End Construction Mortgage  and the
definition of "Collateral" therein shall be incorporated herein by reference as
if originally stated herein.  Any conflict between this Agreement and
the Mortgage and Security Agreement shall be resolved in each instance, in the
sole discretion of the Lender.





7.02           CONTROL





Borrower will cooperate with Lender,
and execute agreements required by Lender, in obtaining control with respect to
Collateral consisting of:





(i) deposit accounts;





(ii)  investment
property;





(iii)  letter of credit
rights; and





(iv)  electronic and chattel
paper.





The Borrower grants Lender a limited
power of attorney to enter into a Control Agreement on behalf of the Borrower to
effectuate the forgoing.





Borrower will not create any chattel
paper without placing a legend on the chattel paper acceptable to Lender,
indicating that Lender has a security interest in the chattel
paper.





7.03  CROSS
DEFAULT





A default
of any of the terms and conditions of any Obligation, of the Borrower and/or
Guarantor to the Lender (including, without limitation any reimbursement
obligations arising out of any Letters of Credit which the Lender may later
issue on behalf of the Borrower and/or Guarantor) or any document or instrument
evidencing such an obligation, shall constitute a default of the Construction
Note, this Agreement, and all Obligations of the Borrower and Guarantor to the
Lender whether evidenced by notes or otherwise.





8.00
CERTAIN RIGHTS OF
LENDER





16




8.01 RIGHT TO
RETAIN THE CONSTRUCTION INSPECTOR





The
Lender shall have the right to retain, at the Borrower's cost and expense, the
Construction Inspector to perform the following services on behalf of the
Lender:





(a) to
review and advise the Lender whether in the opinion of the Construction
Inspector, the Project Budget accurately reflects all Project
Costs;





(b) to
review and advise the Lender whether, in the opinion of the Construction
Inspector, the Plans and­ Specifications are satisfactory for the intended
purposes thereof;





(c) to
make periodic inspections (approximately at the date of each Draw Request) for
the purpose of assuring that construction of the Improvements to date is in
accordance with the Plans and Specifications and to approve the Bor­rower's
then current Draw Request as being consistent with the Project Budget and the
Borrower's obligations under this Agreement, and to advise the Lender of the
anticipated cost of and time for completion of construction of the Improvements
and the adequacy of any Contingency Reserve;





(d) to
review and advise the Lender on any proposed change orders or construction
change directives; and





(e) to
review the Construction Contract and subcon­tracts, for the purpose of
providing the Lender with an opinion as to the cost of construction to be
incurred to complete the Project, and also for the purpose of assuring that all
such subcontracts are for work required by the Plans and Specifications to be
performed.





The fees
of the Construction Inspector shall be paid by the Borrower forthwith upon
billing therefore and expenses incurred by the Lender on account thereof shall
be reimbursed to the Lender forthwith upon request therefore, but neither the
Lender nor the Construction Inspector shall have any liability to the Borrower
on account of (i) the services performed by the Construction Inspector, (ii) any
neglect or failure on the part of the Con­struction Inspector to properly
perform its services, or (iii) any approval by the Construction Inspector of
construction of the Improvements. Neither the Lender nor the Construction
Inspector assumes any obligation to the Borrower or any other Person concerning
the quality of construction of the Improvements or the absence therefrom of
defects.





8.02  APPRAISAL





At any
time during the term of the Loan, Borrower shall cooperate with Lender and use
reasonable efforts to assist Lender in obtaining an appraisal of the Mortgaged
Premises.  Such cooperation and assistance from Borrower shall include
but not be limited to the obligation to provide Lender or Lender’s appraiser
with the following: (i) reasonable access to the Mortgaged Premises, (ii) a
current certified rent roll for the Mortgaged Premises in form and substance
satisfactory to Lender, including current asking rents and a history of change
in asking rents and historical vacancy for the past three years, (iii) current
and budgeted income and expense statements for the prior three years, (iv) a
site plan and survey of Mortgaged Premises and the Building, (v) the building
plans and specifications, including typical elevation and floor plans, (vi) a
photocopy of the transfer documents conveying the beneficial interest in the
Mortgaged Premises to Borrower, together with the legal description of the
Mortgaged Premises, (vii) the current and prior year real estate tax bills,
(viii) a detailed list of past and scheduled capital improvements and the costs
thereof, (ix) a summary of the then current ownership entity, (x) all
environmental reports and other applicable information relating to the Mortgaged
Premises and the Building, and (xi) copies of all recent appraisals/property
description information or brochures, including descriptions of amenities and
services relating to the Mortgaged Premises and the Building.  The
appraiser performing any such appraisal shall be engaged by Lender, and Borrower
shall be responsible for any fees payable to said appraiser in connection with
an appraisal of the Mortgaged Premises; provided, however, so long as no Event
of Default exists, Borrower shall not be required to pay for more than one
appraisal during the initial thirty-six (36) months hereof.





8.03
CHARGES AGAINST
CONSTRUCTION LOAN CHECKING ACCOUNT





17




The
Lender shall have the right, and the Borrower hereby irrevocably au­thorizes
the Lender, to charge any account of the Borrower with the Lender, including the
Construction Loan Checking Account referred to in Section 3.03 hereof, without
the further approval of the Borrower, for (i) any installment of principal or
interest­ due under the Construction Note, (ii) after the Borrower has been
given notice thereof (provided, that no such notice need be given if there has
occurred a Default or Event of Default), any costs or expenses incurred by the
Lender which are to be paid or reimbursed by the Borrower under the terms of
this Agreement or any of the other Loan Documents (including, without limiting
the generality of the foregoing, all Construction Inspector, Appraisal and
reasonable attorney's fees) or (iii) after the Borrower has been given notice
thereof (provided, that no such notice need be given if there has occurred a
Default or Event of Default), any other sums due to the Lender under the
Construction Note, this Agreement or any of the other Loan Documents, all to the
extent that the same are not paid by the respective due dates thereof. The
Borrower agrees that at all times, the unadvanced portion of the Construction
Loan, together with the collected balance in the Construction Loan Checking
Account shall not be less than the total remaining Project Costs, exclusive of
change orders which have been paid for by the Primary Tenant within fifteen (15)
days of the date of the Change  Order, which monies shall be deposited
in the Construction Loan account and if such negative balance exists, Borrower
shall immediately deposit “good funds” into the Construction Loan Checking
Account to remedy the negative balance.





9.00
REPRESENTATIONS AND
WARRANTIES





The
Borrower  repre­sents and warrants to the Lender as follows with
respect to Sections 9.01 – 9.41.  The Guarantor represents and
warrants to the Lender, Sections 9.01, 9.03 and 9.04:





9.01
ORGANIZATION,
AUTHORITY, ETC.





(a) Organization; Good
Standing. The Borrower is a limited liability company duly organized
pursuant to the Articles of Organization dated October 20,
2008  and  filed with the Connecticut Secretary of State
on  October 20, 2008, and is validly existing and in good standing
under the laws of the  State of Connecticut. The Borrower, (i) has all
requisite power to own its property and conduct its business as now conducted
and as presently contemplated, and (ii) is in good standing and is duly
authorized to do business in the jurisdiction where the Land is located and in
each other jurisdiction where such qualification is necessary.





The
Guarantor is a corporation duly organized pursuant to the Articles of
Organization dated March 10, 1970 and  filed with the Delaware
Secretary of State on March 10, 1970 and is validly existing and in good
standing under the laws of the State of Delaware. The Guarantor, (i) has all
requisite power to own its property and conduct its business as now conducted
and as presently contemplated, and (ii) is in good standing and is duly
authorized to do business in the jurisdiction where the Land is located and in
each other jurisdiction where such qualification is necessary.








(b) Authorization. The
execution, delivery and performance of this Agreement and the other Loan
Documents to which the Borrower or  the Guaran­tor is or is to
become a party and the transaction contemplated hereby and thereby (i) are
within the authority of such Person, (ii) have been duly authorized by all
necessary proceedings on the part of such Person, (iii) do not conflict with or
result in any breach or contravention of any provision of law, statute, rule or
regulation to which such Person is subject or any judg­ment, order, writ,
injunction, license or permit applicable to such Person, (iv) do not conflict
with any provision of any operating agreement and articles of organization, or
any agreement or other instrument binding upon, such Person, and (v) do not
require the approval or consent of, or filing with, any governmental agency or
authority other than those already obtained and the filing of the Mortgage, the
Assignment of Leases and the Financing Statements in the appro­priate public
records with respect thereto.





(c) Enforceability. The
execution and delivery of this Agreement and the other Loan Documents to which
the Borrower or  the Guarantor is or is to become a party will result
in valid and legally binding obliga­tions of such Person enforceable against
it in accordance with the respective terms and provisions hereof and thereof,
except as enforceability is limited by bankruptcy, insolvency,
reorganiza­tion, moratorium or other laws relating to or




18




affecting
generally the enforcement of creditors' rights and except to the extent that
availability of the remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding therefore may
be brought.





9.02
TITLE TO PROJECT AND
OTHER PROPERTIES





Excluding the Permitted
Liens:





(a) The
Borrower holds good clear record and market­able fee simple absolute title
to the Land and the Improvements, and owns the Personal Property, subject to no
rights of others, including any mortgages, leases, conditional sale agreements,
title retention agreements, liens or other encumbrances.





(b) The
Borrower owns all of the assets reflected in any financial statements provided
to Lender as at the Balance Sheet Date or acquired since that date (except
property and assets sold or otherwise disposed of in the ordinary course of
business since that date), subject to no rights of others, including any
mort­gages, leases, conditional sales agreements, title retention
agreements, liens or other encumbrances except Permitted Liens.





9.03
FINANCIAL
STATEMENTS





There has
been furnished to the Lender financial information of the Borrower and Guarantor
in connection with the application for the Loan (the “Financial Information”).
Such Financial Information, to the best of Borrower’s knowledge, has been
prepared in accordance with generally accepted accounting principles and fairly
present the financial condition of the  Guarantor as at the close of
business on the date thereof and the results of operations for the fiscal year
then ended.





9.04  NO MATERIAL CHANGES,
ETC.





Since
the date of the Financial Information, there has occurred no material adverse
change in the financial condition or business of the  Guarantor other
than changes in the ordinary course of business that have not had any material
adverse effect either individually or in the aggregate on the­ business or
financial condition of the  Guarantor.





9.05  INTELLECTUAL
PROPERTY





Borrower
owns or has a valid right to use all patents, copyrights, trademarks, licenses,
trade names or franchises now being used or necessary to conduct its business,
all of which are listed on Exhibit “K”, hereto
and the conduct of its business as now operated does not conflict with valid
patents, copyrights, trademarks, licenses, trade names or franchises of others
in any manner that could materially adversely affect in any manner the business
or assets or condition, financial or otherwise, of Borrower.  True and
complete copies of each license and franchise agreement, and evidence of all
patents, copyrights, trademarks and trade names, have previously been delivered
to the Lender.





9.06
LITIGATION





There
are no actions, suits, proceedings or investigations of any kind pending or
threatened against the Borrower before any court, tribunal or administrative
agency or board that, if adversely determined, might, either in any case or in
the aggre­gate, adversely affect the properties, assets, financial
condi­tion or business of such Person or materially impair the right of such
Person to carry on business substantially as now conducted by it, or result in
any liability not adequately covered by insurance, or for which adequate
reserves are not maintained on the balance sheet of such Person, or which
question the validity of this Agreement or any of the other Loan Documents, any
action taken or to be taken pursuant hereto or thereto, or any lien or security
interest created or intended to be created pursuant hereto or thereto, or which
will adversely affect the ability of the Borrower to construct, use and occupy
the Improvements or to pay and perform the Obligations in the manner
contemplated by this Agreement and the other Loan Documents.





9.07
NO MATERIALLY ADVERSE
CONTRACTS, ETC.





19




The
Borrower is not subject to any charter, corporate or other legal restriction, or
any judgment, decree, order, rule or regulation that has or is expected in the
future to have a materially adverse effect on the business, assets or financial
condition of the Borrower. The Borrower is not a party to any contract or
agreement that has or is expected, in the judgment of the Borrower's officers,
to have any materially adverse effect on the business of the
Borrower.





9.08
COMPLIANCE WITH OTHER
INSTRUMENTS





The
Borrower is not in violation of any provision of its Certificate of Organization
or Operating Agreement  or any agreement or instrument to which it may
be subject or by which it or any of its properties may be bound or any decree,
order, judgment, statute, license, rule or regulation, in any of the foregoing
cases in a manner that could result in the imposition of penal­ties or
materially and adversely affect the financial condition, properties or business
of the Borrower­





9.09
TAX
STATUS





The
Borrower (a) has made or filed all federal and state income and all other tax
returns, reports and declarations required by any jurisdic­tion to which it
is subject, (b) has paid all taxes and other governmental assessments and
charges shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and by appropriate proceedings. There
are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of the Borrower knows of no
basis for any such claim.





9.10
NO EVENT OF
DEFAULT





No
Default or Event of Default has occurred and is continuing.





9.11
INVESTMENT COMPANY
ACT





The
Borrower is not an "investment company", or an "affiliated company" or a
"principal underwriter" of an "invest­ment company", as such terms are
defined in the Investment Company Act of 1940.





9.12
ABSENCE OF FINANCING
STATEMENTS, ETC.





There is
no financing statement, security agreement, chattel mortgage, real estate
mortgage or other document filed or recorded with any filing records, registry,
or other public office, that purports to cover, affect or give notice of any
present or possible future lien on, or security interest in, (a) any Collateral
or (b) any other assets or property of the Borrower or any rights relating
thereto, except with respect to Permitted Liens.





9.13
SETOFF,
ETC.





The
Collateral and the Lender's rights with respect to the Collateral are not
subject to any setoff, claims, withholdings or other defenses. The Borrower is
the owner of the Collateral free from any lien, security interest, encumbrance
and any other claim or demand.








9.14
CERTAIN
TRANSACTIONS





Except as
set forth on Exhibit
“L”  hereto, none of the officers, trustees, directors,
partners, members or employees of the Borrower are presently a party to any
transaction with the Bor­rower (other than for services as employees,
officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
officer, trustee, director, partner or such employee or, to the knowledge of the
Borrower, any corporation, partnership, trust or other entity in which any
officer, trustee, director, partner, member or any such employee has a
substantial interest or is an officer, director, trustee, member or
partner­





20




9.15.           EMPLOYEE BENEFIT PLANS
MULTI-EMPLOYER PLANS GUAR­ANTEED


PENSION
PLANS





Neither
the Borrower nor any ERISA Affiliate other than the Guarantor, maintains­ or
contributes to any Employee Benefit Plan, Multi- employer Plan or Guaranteed
Pension Plan.








9.16
ENVIRONMENTAL
COMPLIANCE





The
Borrower has taken all necessary action to investigate the past and present
condition and usage of the Real Estate and the operations conducted thereon and,
based upon such diligent investigation, makes the following representations and
warranties to its knowledge.








(a) None
of the Borrower, or any operator of the Real Estate, or any operations thereon,
is in violation, or alleged violation, of any judgment, decree, order, law,
license, rule or regulation pertaining to environmental matters, including
without limitation, those arising under the Resource Conservation and Recovery
Act ("RCRA"), the Comprehen­sive Environmental Response, Compensation and
Liability Act of 1980 as amended ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986 ("SARA"), the Federal Clean Water Act, the Federal
Clean Air Act, the Toxic Substances Control Act or any state or local statute,
regulation, ordinance, order or decree relating to health, safety or the
environment (hereinafter "Environmental Laws"), which violation involves the
Land or would have a material adverse effect on the environment or the
busi­ness, assets or financial condition of the Borrower.








(b) The
Borrower has not received notice from any third party including, without
limitation any federal, state or local governmental authority, (i) that it has
been identified by the United States Environmental Protection Agency ("EPA") as
a potentially respon­sible party under CERCLA with respect to a site listed
on the National Priorities List, 40 C.F.R. Part 300 Appendix B (1986); (ii) that
any hazardous waste, as defined by  42 U.S.C. § 9601(5), any hazardous
substances as defined by 42 U.S.C. § 9601(14), any pollutant or contaminant as
defined by 42 U.S.C.§ 9601(33) or any toxic substances, oil or hazardous
materials as defined by M.G.L. c. .21E, or other chemicals or substances
regulated by any Environmental Laws ("Hazardous Materials") which it has
generated, transported or disposed of have been found at any site at which a
federal, state or local agency or other third party has conducted or has ordered
that the Borrower  or the Guarantor conduct a remedial investigation,
removal or other response action pursuant to any Environmental Laws; or (iii)
that it is or shall be a named party to any claim, action, cause of action,
complaint, or legal or administrative proceeding (in each case, contingent or
otherwise) arising out of any third party's incurrence of costs, expenses,
losses or damages of any kind whatsoever in connection with the release of
Hazardous Materials.








(c)
Except as set forth on Exhibit “M” attached
hereto: (i) no portion of the Real Estate has been used for the­ handling,
processing, storage or disposal of Hazardous Materials except in accordance with
applicable Environmental Laws; and no underground tank or other underground
storage receptacle for Hazardous Materials is located on any portion of the Real
Estate; (ii) in the course of any activities conducted by the Borrower, or the
operators of their properties, no Hazardous Materials have been generated or are
being used on the Real Estate except in accordance with applicable Environmental
Laws; (iii) there has been no past or present releasing, spill­ing, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
disposing or dumping (a "Release") or threatened Release of Hazardous Materials
on, upon, into or from the Real Estate, which Release would have a material
adverse effect on the value of any of the Real Estate or adjacent
prop­erties or the environment; (iv) to the best of the Borrower's
knowledge, there have been no Releases on, upon, from or into any real property
in the vicinity of any of the Real Estate which, through soil or groundwater
contamination, may have come to be located on, and which would have a material
adverse effect on the value of, the Real Estate; and (v) any Hazardous Materials
that have been generated on any of the Real Estate have been transported
off-site only by carriers having an identification number issued by the EPA,
treated or disposed of only by treatment or disposal facilities maintaining
valid permits as required under applicable Environmental Laws, which
transporters and facilities have




21




been and
are, to the best of the Borrower's knowledge, operating in compliance with such
permits and applicable Envi­ronmental Laws.








(d)
Except as set forth in Exhibit M, none of the Real Estate is or shall be subject
to any applicable environmental clean-up responsibility law or environmental
restrictive transfer law or regulation, by virtue of the transactions set forth
herein and contemplated hereby.





9.17
MEMBERS AND
MANAGERS





The
members and managers of the Borrower are:





Members &
Managers                                                                Class                                           Percentage of
Ownership





Griffin Land & Nurseries,
Inc.                                                                N/A                                                      100%














In each case, the named Member/Manager
is the Manager for the Class owned.








9.18
AVAILABILITY OF
UTILITIES





All
utility services necessary and sufficient for the construction, development and
operation of the Project for its intended purposes are presently (or will be
prior to the issuance of the final Certificate of Occupancy) available to the
boundaries of the Land through dedicated public rights of way or through
perpetual private easements, approved by the Lender, with respect to which the
Mortgage creates a valid and enforceable first lien, including, but not limited
to, water supply, storm and sanitary sewer, gas, electric and tele­phone
facilities, and drainage.








9.19
ACCESS





The
rights of way for all roads necessary for the full utilization of the
Improvements for their intended purposes have either been acquired by the
appropriate Governmen­tal Authority or have been dedicated to public use and
accepted by such Governmental Authority, and all such roads shall have been
completed, or all necessary steps have been taken by the Borrower and such
Governmental Authority to assure the complete­ construction and installation
thereof prior to the date upon which access to the Project via such roads will
be necessary. All curb cuts, driveways and traffic signals shown on the Plans
and Specifications are existing or have been fully approved by the appropriate
Governmental Authority.





9.20
CONDITION OF
PROJECT





Neither
the Project nor any part thereof is now damaged or injured as result of any
fire, explosion, accident, flood or other casualty or has been the subject of
any Taking, and to the knowledge of the Borrower, no Taking is pending or
contemplated.








9.21
COMPLIANCE WITH
REQUIREMENTS





The Plans
and Speci­fications and construction of the Improvements pursuant thereto
and the use and occupancy of the Project contemplated thereby comply with all
Requirements.





9.22
PROJECT
APPROVALS





22




Except as
set forth on Exhibit
“N” hereto, the Borrower has obtained all Project Approvals. All Project
Approvals obtained by the Borrower are listed and described on Exhibit
“O”  hereto, have been validly issued and are in full force and
effect. The Borrower has no reason to believe that any of the Project Approvals
not heretofore obtained by the Borrower will not be obtained by the Borrower in
the ordinary course following completion of the construction of the Improvements
in accordance with the Plans and Specifications. No Project Approvals will
terminate, or become void or voidable or terminable, upon any sale, transfer or
other disposition of the Project, including any transfer pursuant to foreclosure
sale under the Mortgage.





9.23
CONSTRUCTION
CONTRACT





The
Construction Contract is in full force and effect and both the Borrower and the
Contractor are in full Compliance with their respective obligations under the
Construction Contract. The work to be performed by the Contractor under the
Construction Contract is the work called for by the Plans and Specifications,
and all work required to com­plete the Improvements in accordance with the
Plans and Specifi­cations is provided for under the Construction
Contract.





9.24
ARCHITECT’S
CONTRACT





The
Architect's Contract is in full force and effect and both the Borrower and the
Borrower's Architect are in full Compliance with their respective
obliga­tions under the Architect's Contract.








9.25
OTHER
CONTRACTS





The
Borrower has made no contract or arrangement of any kind or type whatsoever
(whether oral or written, formal or informal), the performance of which by the
other party thereto could give rise to a lien or encumbrance on the
Project.





9.26
REAL PROPERTY TAXES;
SPECIAL ASSESSMENTS





There are
no unpaid or outstanding real estate or other taxes or assess­ments on or
against the Project or any part thereof which are payable by the Borrower
(except only real estate taxes not yet due and payable). The Borrower has
delivered to the Lender true and correct copies of real estate tax bills for the
Project for the past fiscal tax year. No abatement proceedings are pending with
reference to any real estate taxes assessed against the Project. There are no
betterment assessments or other special assessments presently pending with
respect to any part of the Project, and the Borrower has received no notice of
any such special assessment being contemplated.





9.27
VIOLATIONS





The
Borrower has received no notices of, or has any knowledge of, any violations of
any applicable Requirements or Project Approvals.





9.28
PLANS AND
SPECIFICATIONS





The
Borrower has fur­nished the Lender with true and complete sets of the Plans
and Specifications. The Plans and Specifications so furnished to the Lender
comply with all Requirements, all Project Approvals, and all restrictions,
covenants and easements affecting the Project, and have been approved by the
Contractor, the Borrower's Archi­tect, the Primary Tenant, the Lender, and
such Governmen­tal Authority as is required for construction of the
Improve­ments.





9.29
PROJECT
BUDGET





To the
best of Borrower’s knowledge, the Project Budget accurately reflects all Project
Costs.





9.30
FEASIBILITY





23




Each of
the Construction Schedule and the Disbursement Schedule is realistic and
feasible, and is accurate to date.








9.31
EFFECT ON DRAW
REQUEST





Each Draw
Request submitted to the Lender as provided in Section 3.01 hereof shall
constitute an affirmation that the representations and warranties contained in
Section 9.00 of this Agreement and in the other Loan Documents remain true and
correct as of the date thereof; and unless the Lender is notified to the
contrary, in writing, prior to the Drawdown Date of the requested Advance or any
portion thereof, shall constitute an affirmation that the same remain true and
correct on the Drawdown Date.





9.32
PRINCIPAL
DEPOSITORY





The
Borrower further agrees that it shall conduct its principal (majority) banking
business with the Lender, including, without limitation, retaining the Lender as
its principal depository savings accounts, checking accounts, general demand
depository accounts, and such other accounts as are utilized by the Borrower
from time-to-time.





9.33FINANCIAL
STATEMENTS





The
balance sheet of the Guarantor and the related statements of income and retained
earnings and cash flow of the Guarantor for the fiscal year then ended, and the
accompanying footnotes, together with any interim financial statements of the
Guarantor, copies of which have been furnished to the Lender, are complete and
correct and fairly present the financial condition of the Guarantor as at such
dates and the results of the operations of the Guarantor for the periods covered
by such statements, all in accordance with GAAP consistently applied (subject to
year-end adjustments in the case of the interim financial statements), and there
has been no material adverse change in the condition (financial or otherwise),
business, or operations of the Guarantor since the presentation to the Lender of
the most recently dated financial statements, nor are there any liabilities of
the Guarantor , fixed or contingent, which are material but are not reflected in
such financial statements or in the notes thereto, other than liabilities
arising in the ordinary course of business. No information, exhibit or report
furnished by the Guarantor to the Lender in connection with the negotiation of
this Agreement contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statement contained therein not
materially misleading.





9.34LABOR
DISPUTES AND ACTS OF GOD





Neither
the business nor the properties of the Borrower are affected by any fire,
explosion, accident, strike, lockout or other labor dispute, drought, storm,
hail, earthquake, embargo, act of God or of the public enemy, or other casualty
(whether or not covered by insurance), materially and adversely affecting such
business or properties or the operation of the Borrower.








9.35OTHER
AGREEMENTS





The
Borrower is not a party to any indenture, loan or credit agreement, or to any
lease or other agreement or instrument, or subject to any charter or limited
liability company  restriction which could have a material adverse
effect on the business, properties, assets, operations, or conditions, financial
or otherwise, of the Borrower, or the ability of the Borrower to carry out its
obligations under the Loan Documents to which it is a party. The Borrower is not
in default in any material respect in the performance, observance, or
fulfillment of any of the obligations, covenants, or conditions contained in any
agreement or instrument material to its business to which it is a
party.








9.36  LITIGATION





There is
no pending or threatened action or proceeding against or affecting the Borrower
before any court, governmental agency, or arbitrator, which may, in any one case
or in the aggregate, materially adversely affect the




24




financial
condition, operations, properties, or business of the Borrower, or the ability
of the Borrower to perform their obligations under the Loan Documents to which
it is a party.





9.37  NO
JUDGMENTS





The
Borrower has satisfied all judgments, and the Borrower is  not in
default with respect to any judgment, writ, injunction, decree, rule or
regulation of any court, arbitrator, or Federal, state, municipal, or other
governmental authority, commission, board, bureau, agency, or instrumentality,
domestic or foreign.





9.38  ERISA





The
Borrower is to the best of its knowledge in compliance in all material respects
with all applicable provisions of ERISA.  Neither a Reportable Event
nor a Prohibited Transaction has occurred and is continuing with respect to any
Plan; no notice of intent to terminate a Plan has been filed, nor has any Plan
been terminated; no circumstances exist which constitute grounds entitling the
PBGC to institute proceedings to terminate, or appoint a trustee to administer,
a Plan, nor has the PBGC instituted any such proceedings; the Borrower, nor any
Commonly Controlled Entity has completely or partially withdrawn from a
Multiemployer Plan; the Borrower and each Commonly Controlled Entity have met
their minimum funding requirements under ERISA with respect to all of their
Plans and the present value of all vested benefits under each Plan does not
exceed the fair market value of all Plan assets allocable to such benefits, as
determined on the most recent valuation date of the Plan and in accordance with
the provisions of ERISA; and neither the Borrower, nor any Commonly Controlled
Entity has incurred any liability to the PBGC under ERISA.








9.39  DEBT





Set forth
in the financial statements referred to in this Agreement, to the extent
required by GAAP, is a complete and correct list of all Debt in respect of which
the Borrower is in any manner directly or contingently obligated; and the
maximum principal or face amounts of the credit in question, which are
outstanding and which can be outstanding, are correctly stated, and all Liens of
any nature given or agreed to be given as security therefore are correctly
described or indicated in such financial statements.   Exhibit “P”
correctly  lists all secured and unsecured Debt of the Borrower
outstanding as of the date of this Agreement, and shows, as to each item of Debt
listed thereon, the obligor and obligee, the aggregate principal amount
outstanding on the date hereof.





9.40
EXECUTIVE
AGREEMENTS





None of
the executive officers of the Borrower is subject to any agreement in favor of
anyone, other than Borrower, which limits or restricts that
person’s  right to engage in the type of business activity conducted
or proposed to be conducted by such Borrower or to use therein any property or
confidential information or which grants to anyone other than the Borrower any
rights in any inventions or other ideas susceptible to legal protection
developed or conceived by any such officer.





9.41  FOREIGN ASSET CONTROL
REGULATIONS





Neither the execution of this Agreement
nor the use of the proceeds thereof violates the Trading With the Enemy Act of
1917, as amended, nor any of the Foreign Assets Control Regulations promulgated
thereunder or under the International Emergency Economic Powers Act or the U.N.
Participation Act of 1945.





10.00   AFFIRMATIVE COVENANTS OF THE
BORROWER





The
Borrower covenants and agrees that, so long as the Construction
Loan  is outstanding or the Lender has any obligation to make any
Advances:





10.01
PUNCTUAL
PAYMENT





25




The
Borrower will duly and punc­tually pay or cause to be paid the principal and
interest on the Construction Loan and all other amounts provided for in the
Construction Note, this Agree­ment and the other Loan Documents to which the
Borrower is a party, all in accordance with the terms of the Construction Note,
this Agree­ment and such other Loan Documents.





10.02
COMMENCEMENT, PURSUIT
AND COMPLETION OF CONSTRUCTION





The
Borrower will commence construction of the Improvements­ within ten (10)
days after the Construction Loan Closing Date, will diligently pursue
construction of the Improvements in accordance with the Construction Schedule,
and will complete construction of the Improvements prior to the Completion Date,
all in accordance with the Plans and Specifications, in full compliance with all
re­strictions, covenants and easements affecting the Project, all
Requirements, and all Project Approvals, and with all terms and conditions of
the Loan Documents, without deviation from the Plans and Specifica­tions
unless the Borrower obtains the prior approval of the Lender, and  the
Primary Tenant.  The Borrower will pay all sums and perform all such
acts as may be necessary or appropriate to complete such construction of the
Improvements in accordance with the Plans and Specifications and in full
Compliance with all restrictions, covenants and easements affecting the Project,
all Requirements and all Project Approv­als, and with all terms and
conditions of the Loan Documents, all of which shall be accomplished on or
before the Completion Date, free from any liens, claims or assessments (actual
or contingent) asserted against the Project for any material, labor or other
items furnished in connection therewith. The Borrower will furnish evidence of
satisfactory Compliance with this Section 10.02 to the Lender on or before the
Completion Date.








10.03
CORRECTION OF
DEFECTS





The
Borrower will promptly correct or cause to be corrected all defects in the
Improvements or any departure from the Plans and Specifications not previously
approved by the Lender. The Borrower agrees that any Advance made by the Lender,
whether before or after such defects or departures from the Plans and
Specifications are discovered by, or brought to the attention of, the Lender,
shall not constitute a waiver of the Lender's right to require Compliance with
this Section 10.03.





10.04
MAINTENANCE OF
OFFICE





After the
Completion Dates, the Borrower will maintain its chief executive office in
Bloomfield, Connecticut or at such other place in the United States of America
as the Borrower shall designate upon written notice to the Lender, where
notices, presentations and demands to or upon the Borrower in respect of the
Loan Documents may be given or made.





10.05
RECORDS AND
ACCOUNTS





The
Borrower will (a) keep true and accurate records and books of account in which
full, true and correct entries will be made in accordance with gener­ally
accepted accounting principles and (b) maintain adequate accounts and reserves
for all taxes (including income taxes), depreciation and amortization of its
properties, contingencies, and other reserves.





10.06
FINANCIAL STATEMENTS,
CERTIFICATES AND INFORMATION





The
Borrower (as indicated), at its sole expense, will deliver to the
Lender:­





(a)  within
fifteen (15) days after the filing of its Form 10K with the Securities Exchange
Commission, the Guarantor will provide Lender with its audited financial
statement;





(b)
within one hundred twenty (120) days of fiscal year end, the  internal
statement of




26




operations,
statement of cash flow and balance sheets of Borrower;





(c)
within thirty (30) days after the receipt of the Primary Tenant’s audited
financial statements, the Borrower shall provide them to Lender;
and





(d) from
time to time such other reasonable financial data and information  as
the Lender may request.








10.07
NOTICES





(a)
Defaults. The Borrower will promptly notify the Lender in writing of the
occurrence of any Default or Event of Default, specifying the nature and
existence of such Default or Event of Default and what action the Borrower is
taking or proposes to take with respect thereto. If any Person shall give any
notice or take any other action in respect of a claimed default (whether or not
constituting an Event of Default) under this Agreement or under any note,
evidence of indebtedness, indenture or other obligation to which or with respect
to which the Borrower is a party or obligor, whether as principal or surety, and
such default would permit the holder of such note or obligation or other
evidence of indebtedness to accelerate the maturity thereof,  ­the
Borrower shall forthwith give written notice thereof to the Lender, describing
the notice or action and the nature of the claimed default.





(b)
Environmental Events. The Borrower will promptly give notice to the Lender (i)
of any violation of any Environ­mental Law that the Borrower reports in
writing or is reportable by such Person in writing (or for which any written
report supplemental to any oral report is made) to any federal, state or local
environmental agency and (ii) upon becoming aware thereof, of any inquiry,
proceeding, investigation, or other action, including a notice from any agency
of potential environmental liability, or any federal, state or local
environmental agency or board, that in either case involves the Project or has
the potential to materially affect the assets, liabilities, financial conditions
or operations of the Borrower or such general partner or the Lender's liens or
security interests pursuant to the Security Documents.





(c)
Notification of Claims against Collateral.  The Borrower will,
immediately upon becoming aware thereof, notify the Lender in writing of any
material setoff, claims, withholdings or other defenses to which any of the
Collateral, or the Lender's rights with respect to the Collateral, are
subject.





(d)
Notice of Nonpayment. The Borrower will immedi­ately notify the Lender in
writing if the Borrower receives any notice, whether oral or written, from any
laborer, subcontractor or materialman to the effect that such laborer,
subcontractor or materialman has not been paid when due for any labor or
materials furnished in connection with the construction of the
Improvements­





(e)
Notice of Litigation and Judgments.  The Borrower will give notice to
the Lender in writing within fifteen (15) days of becoming aware of any
litigation or proceeding threatened in writing or any pending litigation and
proceedings affecting the Project or affecting the Borrower or to which the
Borrower is or is to become a party involving an uninsured claim against the
Borrower that could reasonably be expected to have a materially adverse effect
on the Borrower or any of its general partners and stating the nature and status
of such litigation or proceedings. The Borrower will give notice to the Lender,
in writing, in form and detail satisfactory to the Lender, within ten (10) days
of any judgment not covered by insurance, final or otherwise, against the
Borrower in an amount in excess of $10,000.00.





(f)
Notice of Occupancy by Tenants. Excluding the Primary Tenant, the Borrower will
give written notice to the Lender at least ten (10) days prior to the
commencement of, and again on the date of, occupancy of the Improvements by any
tenant under a Lease, stating the name of the tenant, the date of occupancy, and
the area so occupied.





10.08
EXISTENCE





The
Borrower will do or cause to be done all things necessary to preserve and keep
in full force and effect its existence as a Connecticut  limited
liability company. The Borrower will do or cause to be done all things




27




necessary
to preserve and keep in full force all of its rights and franchises. The
Borrower (a) will cause all of its proper­ties used or useful in the conduct
of its business to the main­tained and kept in good condition, repair and
working order and supplied with all necessary equipment, (b) will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Borrower may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times, and (c) will continue to engage primarily in the
busi­nesses now conducted by it and in related businesses.





10.09
INSURANCE;
BONDS





10.09.1  CONTRACTOR AND
ARCHITECT INSURANCE





(a) The
Borrower will require the Contractor to obtain and maintain at all times during
the construction of the Im­provements the insurance required by the
Construction Contract and such other insurance as may be required by the­
Lender (including, without limitation, commercial general lia­bility
insurance, comprehensive automobile liability insurance, all-risk contractor's
equipment floater insurance, workmen's compensation insurance and employer
liability insurance), all such insurance to be in such amounts and form, to
include such coverage and endorsements, and to be issued by such insurers as
shall be approved by the Lender, and to contain the written agreement of the
insurer to give the Lender thirty (30) days prior written notice of
cancellation, nonrenewal, modification or expiration. The Borrower will provide
or will cause the Con­tractor to provide the Lender with certificates
evidencing such insurance upon the request of the Lender.





(b)  The
Borrower will require the Borrower's Architect or any other architect, engineer
or design professional providing design or engineering services in connection
with the construction of the Improvements, to obtain and maintain professional
liability insurance covering any claims asserted with respect to the Project for
a period of not less than five (5) years after the date of completion of the
Improvements, such insurance to be in such amounts and form, to include such
coverage and endorsements, and to be issued by such insurers as shall be
approved by the Lender, and to contain the written agreement of the insurer to
give the Lender thirty (30) days prior written notice of cancellation,
nonrenewal, modification or expiration.  The Borrower will provide or
will cause the Borrower's Architect or such other design professional to provide
the Lender with certificates evidencing such insurance upon the request of the
Lender.








10.09.2                      INSURANCE.   Borrower,
at its sole cost and expense, shall, or shall cause the Primary Tenant
to  insure and keep insured the Mortgaged Premises, against such
perils and hazards, and in such amounts and with such limits, as Lender may from
time to time reasonably require.   Borrower shall also carry such
other insurance, and in such amounts, as Lender may from time to time reasonably
require, against insurable risks which at the time are commonly insured against
in the case of premises similarly situated, due regard being given to the
availability of insurance and to the type of construction, location, utilities,
use and occupancy of the Mortgaged Premises or any replacements or substitutions
therefor ("Additional Insurance"). Such Additional Insurance may include flood,
earthquake, , business interruption and demolition and shall be obtained within
30 days after demand by Lender. Otherwise, Borrower shall not obtain any
separate or additional insurance which is contributing in the event of loss,
unless it is properly endorsed and otherwise reasonably satisfactory to Lender
in all respects.  Except as otherwise required under the existing
Lease with the Primary Tenant, any proceeds of insurance in excess of Two
Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) paid on account of any
damage to or destruction of the Mortgaged Premises or any portion thereof shall
be paid over to the Lender and shall be applied and distributed as provided for
herein and in the Mortgage.





10.09.2(a)                      EVIDENCE
OF COVERAGE.  The insurance shall be evidenced by the original
policy or a true and certified copy of the original policy, or in the case of
liability insurance, by certificates of insurance. Certificates evidencing such
insurance shall be delivered to Lender at or prior to Closing and certified
copies or original policies shall be delivered to Lender within thirty (30) days
following Closing. On or before the stated due date, Borrower or the Primary
Tenant shall pay all premiums and fees for the insurance policies required
hereunder. Borrower shall deliver certified copies of all policies and renewals
(or certificates evidencing the same) to Lender at least thirty (30) days before
the expiration of existing policies. Each such policy shall provide that such
policy may




28




not be
canceled or materially changed except upon 30 days prior written notice of
intention of non-renewal, cancellation or material change to Lender, and that no
act or thing done by Borrower shall invalidate the policy as against
Lender.  Lender shall be named as Mortgagee, loss payee and addtional
insured on all such policies.  Notwithstanding anything to the
contrary contained herein or in any provision of law, the proceeds of insurance
policies coming into the possession of Lender and which are not to be used for
the Work (as hereinafter defined) shall not be deemed trust funds and Lender
shall be entitled to dispose of such proceeds as hereinafter provided and as set
forth in the Mortgage. If Lender has not received satisfactory evidence of such
renewal or substitute insurance in the time frame herein specified, Lender shall
have the right, but not the obligation, to purchase such insurance for Lender's
interest only. Any amounts so disbursed by Lender pursuant to this Section 10.09
shall be deemed to be a part of the Loan and shall bear interest at the Default
Rate. Nothing contained in this Section 10.09 shall require Lender to incur any
expense or take any action hereunder, and inaction by Lender shall never be
deemed a waiver of any rights accruing to Lender on account of this Section
10.09.





10.09.2(b)                      SEPARATE
INSURANCE.  Borrower shall not carry any separate insurance on
the Mortgaged Premises concurrent in kind or form with any insurance required
hereunder or contributing in the event of loss without Lender's prior written
consent, and any such policy shall have attached a standard non-contributing
mortgagee clause, with loss payable to Lender, and shall meet all other
requirements set forth herein.





10.09.2(c)                      DAMAGE TO
OR DESTRUCTION OF MORTGAGED PREMISES.    In the event
of any damage to or destruction of the Mortgaged Premises, Borrower shall give
prompt written notice to Lender and provided that no Event of Default has
occurred hereunder, Lender  shall relesae any insurance proceeds
received by it to the Borrower provided that the Borrower uses it strictly in
compliance with its obligations under the Lease with the Primary Tenant,
Borrower shall promptly commence and diligently continue to complete the repair,
restoration and rebuilding of the Mortgaged Premises so damaged or destroyed in
full compliance with all legal requirements and with the provisions of
the  Lease and as set forth in Section 10.9.2(d) below, and free and
clear from any and all liens and claims. Such repair, restoration and rebuilding
of the Mortgaged Premises are sometimes herein­after collectively referred
to as the "Work." Borrower shall not adjust, compromise or settle any claim for
insurance proceeds without the prior written consent of Lender, which consent
shall not be unreasonably withheld or delayed.





10.09.2(d)                      RESTORATION. Borrower warrants, covenants
and represents that:





(i)
During the period following a casualty until the Work has been completed,
Borrower shall cause the insurance proceeds, together with any additional sums
deposited by Borrower with the Lender in respect of the applicable casualty to
equal or exceed such estimated cost of effecting such repair and restoration, or
such portion thereof as then remains to be completed and paid for;





(ii) Upon
completion of the Work, the monthly rents from all Leases remaining in full
force and effect shall, in Lender's reasonable judgment, be sufficient to pay
all Operating Expenses of the Mortgaged Premises and all regularly scheduled
principal, interest and other sums due and payable under the Construction Note,
this Agreement and the other Loan Documents.








(iii) At
all times, there shall be in force and effect for the benefit of Borrower and
Lender rental interruption insurance sufficient to provide coverage for one
hundred percent (100%) of all rental income lost as a consequence of such
casualty for a total of at least twelve (12) months;





(iv) The
Work will be effected pursuant to plans and specifications reasonably approved
in writing by Lender, and by a general contractor and major subcontractors, and
pursuant to contracts, approved in writing by Lender; and





(v) The
Work can be effected in compliance with all applicable laws and Borrower shall
have obtained all licenses, permits, consents and approvals from all applicable
governmental authorities or private parties required to permit Borrower to
effect such restoration and repair and to use, operate and occupy the repaired
and restored premises upon completion thereof (other than those which will issue
in the ordinary course upon completion) and that the same shall be in full force
and effect.





29




10.09.2(e)                      DISTRIBUTION
OF PROCEEDS.If any insurance
Proceeds are used for the Work, Borrower warrants, covenants and
represents:





(i) If
the Work is structural or if the cost of the Work is reasonably estimated by
Lender to exceed Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00),
the Work shall be conducted under the supervision of a certified and registered
architect or engineer. Before Borrower commences any Work, other than temporary
work to protect property or prevent interference with business, Lender shall
have approved in writing the plans and specifications for the Work, which
approval shall not be unreasonably withheld or delayed, it being nevertheless
understood that such plans and specifications shall provide for Work so that,
upon completion thereof, the Mortgaged Premises shall be at least equal in value
and general utility to the Mortgaged Premises prior to the damage or
destruction.





(ii)
Borrower shall deliver to Lender a certificate of the architect or engineer in
(i) above (or a certificate given by Borrower if no architect or engineer is so
required) stating (A) that all of the Work completed has been done in compliance
with the approved plans and specifica­tions, if required under (i) above,
(B) that the proceeds to be distributed are justly required to reimburse the
Borrower for payments made by Borrower, or are justly due to the contractor,
subcontractors, materialmen, laborers, engineers, architects or other persons
rendering services or materials for the Work (giving a brief description of such
services and materials), and that when added to all sums previously paid out by
the Lender does not exceed the value of the Work done to the date of such
certificate, (C) if the sum to be distributed is to cover payment relating to
repair and restoration of personal property required or relating to the
Mortgaged Premises, that title to the personal property items covered by the
requested payment is vested in Borrower, and (D) that the amount of such
proceeds remaining in the hands of the Lender will be sufficient on completion
of the Work to pay for the same in full (giving in such reasonable detail as
Lender may require an estimate of the cost of such completion). Additionally,
Borrower shall deliver to Lender a statement signed by Borrower approving both
the Work done to date and the Work covered by the payment in
question.





(iii)
Borrower shall deliver waivers of lien satisfactory to Lender covering that part
of the Work for which payment or reimbursement is being requested and, if
required by Lender, a search prepared by a title company, or by other evidence
satisfactory to Lender that there has not been filed with respect to the
Mortaged Premises any mechanics' or other lien or instrument for the retention
of title relating to any part of the Work not discharged of record.
Additionally, as to any personal property covered by the request for payment,
Lender shall be furnished with evidence of payment therefor and such further
evidence satisfactory to assure Lender of its valid first lien on the personal
property.





(iv)
Lender or its designee shall have the right to inspect the Work at all
reasonable times. The reasonable cost of any such inspection of the Work shall
be paid by Borrower upon demand. Neither the approval by Lender of the plans and
specifications for the Work nor the inspection by Lender of the Work shall make
Lender responsible for the preparation of such plans and specifications or the
compliance of such plans and specifications, or of the Work, with any applicable
law, regulation, ordinance, covenant or agreement.





(v)
Borrower shall deliver a copy or copies of any certificate or certificates
required by law to render occupancy and full operation of the Mortgaged Premises
legal.





10.09.2(f)                                MISCELLANEOUS
INSURANCE PROVISIONS.





(i) The
insurance requirements contained in this Section 10.9.2(f) are in addition to,
and supplement the insurance requirements contained in the
Mortgage.





(ii) In
the event of the foreclosure of the Mortgage or other transfer of title to or
assignment of the Mortgaged Premises in extinguishment of the debt due Lender in
whole or in part, all right, title and interest of Borrower in and to all
policies of insurance required by this Agreement and any insurance proceeds
shall inure to the benefit of and pass to Lender or any purchaser or transferee
of the Mortgaged Premises.





(iii)
Borrower hereby authorizes Lender, during all periods in which an Event of
Default has occurred and remains uncured, to settle any insurance claims, to
obtain insurance proceeds, and to endorse any




30




checks,
drafts or other instruments representing any insurance proceeds whether payable
by reason of loss thereunder or otherwise.








10.10
TAXES





(a) The
Borrower will pay, or cause to be paid and discharged, all taxes, assessments
and other governmental charges imposed upon it with respect to the Project or
imposed upon the Project at the time and in the manner required by the Mortgage,
before the same shall become overdue. The Borrower will promptly pay and
discharge (by bonding or otherwise) all claims for labor, material or supplies
that if unpaid might by law become a lien or charge against the Project or any
part thereof or might affect the priority of the lien created by the Mortgage
with respect to any Advance made or to be made by the Lender under this
Agreement.





(b) The
Borrower will duly pay and discharge, or cause to be paid and discharged, before
the same shall become overdue, all taxes, assessments and other governmental
charges imposed upon it and its other real properties, sales and activities, or
any part thereof, or upon the income or profits therefrom, as well as all claims
for labor, materials, or supplies that if­ unpaid might by law become a lien
or charge upon any of its property; provided that any such tax, assessment,
charge, levy or claim with respect to properties other than the Project need not
be paid if the validity or amount thereof shall currently be contested in good
faith by appropriate proceedings and if the Borrower shall have set aside on its
books adequate reserves with respect thereto; and provided further that the
Borrower will pay all such taxes, assessments, charges, levies or claims
forthwith upon the commencement of proceedings to foreclose any lien that may
have attached as security therefore.





10.11
INSPECTION OF PROJECT,
OTHER PROPERTIES AND BOOKS





(a) The
Borrower shall permit the Lender and the Construction Inspector, at the
Borrower's expense, to visit and inspect the Project and all materials to be
used in the con­struction thereof and will cooperate with the Lender and the
Construction Inspector during such inspections (including making available
working drawings of the Plans and Specifications); provided that this provision
shall not be deemed to impose on the Lender or the Construction Inspector any
obligation to undertake such inspections.





(b) The
Borrower shall permit the Lender at the Borrower's expense to visit and inspect
any of the other proper­ties of the Borrower to examine the books of account
of the Borrower (and to make copies thereof and extracts therefrom) and to
discuss the affairs, finances and accounts of the Borrower with, and to be
advised as to the same by, its officers, all at such reasonable times and
intervals as the Lender may reasonably request.








10.12
COMPLIANCE WITH LAWS,
CONTRACTS, LICENSES AND PERMITS





The
Borrower will comply with, (a) the applicable laws and regulations wherever its
business is conducted, including all Environmental Laws and, in the case of the
Borrower, all Re­quirements, (b) the provisions of its operating agreement
and other charter documents and by-laws, (c) all agreements and instruments by
which it or any of its properties may be bound, including, in the case of the
Borrower, the Architect's Contract, the Construction Contract ­and all
restrictions, covenants and easements affecting the Project, (d) all applicable
decrees, orders and judgments, and (e) all licenses and permits required by
applicable laws and regulations for the conduct of its business or the
ownership, use or operation of its properties, including, in the case of the
Borrower, all Project Approvals.





10.13
PROJECT
APPROVALS





The
Borrower will promptly obtain all Project approvals not heretofore obtained by
the Borrower (including those listed and described on ­Exhibit
“N”  hereto and any other Project Approvals which may
hereaf­ter become required, necessary or desirable) and will furnish the
Lender with evidence that the Borrower has obtained such Project Approvals
promptly upon its request. The Borrower will give all such notices to, and take
all such other actions with respect to, such Governmental Authority as may be
required under applicable Requirements to construct the Improvements and to use,
occupy and operate the Project following the completion of the construction




31




of the
Improvements. The Borrower will also promptly obtain all utility installations
and connections required for the operation and servicing of the Project for its
intended purposes, and will furnish the Lender with evidence thereof. The
Borrower will duly perform and comply with all of the terms and conditions of
all Project Approvals obtained at any time, including all Project Approvals
listed and described on Exhibit “Q”
hereto.





10.14
USE OF
PROCEEDS





The
Borrower will use the proceeds of the Construction Loan solely for the purpose
of paying for Project Costs in accordance with the Project
Budget.  Additionally, the Lender agrees that should actual
construction costs be less than the approved Construction Budget (the
“Construction Savings”) and  the Lender has not fully Advanced the
Loan, the Borrower shall be entitled to recoup equity up to Five Hundred
Thousand and 00/100 Dollars ($500,000.00) (on a dollar-for-dollar basis, equal
to the Construction Savings) at the time of issuance of a final Certificate of
Occupancy.





10.15
PROJECT
COSTS





The
Borrower will pay all Project Costs in excess of the Construction Loan Amount,
regardless of the amount, and prior to the same being overdue.





10.16
INSUFFICIENCIES OF
CONSTRUCTION LOAN PROCEEDS





The
Borrower will deposit funds with the Lender as follows: If at any time while the
Construction Loan is outstanding or the Lender has any obligation to make
Advances hereunder, the Lender shall in its reasonable discretion determine that
the remaining undisbursed portion of  the Construction Loan, together
with the Required Equity Funds and any other sums previously deposited by the
Borrower with the Lender in connection with the Construction Loan, is or will be
insufficient to fully complete and equip the Improvements in accordance with the
Plans and Specifications, to operate and carry the Project after completion of
the Improvements until payment in full of the Construction Loan by the Borrower,
to pay all other Project Costs, to pay all interest accrued or to accrue on the
Construction Loan during the term of the Construction Loan from and after the
date hereof, and to pay all other sums due or to become due under the Loan
Documents (or as to any budget category or line item), regardless of how such
condition may be caused, the Borrower will, within seven (7) days after written
notice of such determination from the Lender, deposit with the Lender such sums
of money in cash as the Lender may require, in an amount sufficient to remedy
the condition de­scribed in such notice, and sufficient to pay any liens for
labor and materials alleged to be due and payable at the time in connection with
the Improvements, and, at the Lender's option, no further Advances of the
Construction Loan shall be made by the Lender until the provisions of this
Section 10.16 have been fully complied with. All such deposited sums shall stand
as additional security for the Obligations and shall be disbursed by the Lender
in the same manner as Advances under this Agreement before any further Advances
of the Construction Loan proceeds shall be made. The Lender shall­ have no
obligation to pay the Borrower any interest with respect to such deposited
funds.








10.17
LEASES





The
Borrower will take or cause to be taken all steps within the power of the
Borrower to market and lease the leasable area of the Improvements to such
tenants and upon such terms and conditions as may be approved by the
Lender.  Any proposed standard form of lease to be used by the
Borrower in connection with the Improvements shall be submitted to and approved
by the Lender prior to its submission to any proposed tenant, and the Borrower
will make such amendments, modifications or additions thereto as may be required
by the Lender. The leases to any tenant who will lease or occupy thirty percent
(30%) or more of the net leasable area of the Improvements (other than the
Primary Tenant) will require that such tenant prepare and deliver to the
Borrower and the Lender annual financial statements certified by an independent
certified public account­ant within 120 days following the end of each
fiscal year of such tenant. The Borrower will require, and each Lease will
require, each tenant to enter into a Nondisturbance, Attornment and
Subordination Agreement upon the request of the Lender.  The Lender
shall have




32




the
right, and the Borrower hereby authorizes the Lender, to communicate directly
with any tenant under a Lease to verify any information delivered to the Lender
by the Borrower concerning such tenant or such tenant's Lease.





10.18
LABORERS,
SUBCONTRACTORS AND MATERIALMEN





The
Borrower will furnish to the Lender, upon request at anytime, and from time to
time, affidavits listing all laborers, subcontrac­tors, materialmen, and any
other Persons who might or could claim statutory or common law liens and are
furnishing or have fur­nished labor or material to the Project or any part
thereof, together with affidavits, or other evidence satisfactory to the Lender,
showing that such parties have been paid all amounts then due for Labor and
materials furnished to the Project. The­ Borrower will also furnish to the
Lender, at any time and from time to time upon demand by the Lender, lien
waivers bearing a then current date and prepared on a form satisfactory to the
Lender from the Contractor and such subcontractors or materialmen as the Lender
may designate.





10.19
DEPOSIT OF
INCOME





The
Borrower will deposit with the Lender, upon request at any time following an
Event of Default, any sums (other than base rent, which is being paid to a lock
box) received by the Borrower from tenants under Leases (other than amounts paid
by tenants to reimburse the Borrower for construction work performed for tenants
the cost of which has not been disbursed to the Borrower by the Lender under the
Construction Loan), in a special account, from which no funds shall be drawn by
the Borrower without the Lender's prior approval, and which sums shall stand as
additional security for the Obligations.  It is expressly agreed that
at the Lender's option, such sums shall be disbursed in the same manner as
Advances before any further Advance of the Construction Loan is
made.





10.20
PUBLICITY





The
Borrower will permit the Lender to obtain publicity in connection with the
construction of the Improvements through press releases and participation in
such events as ground breaking and opening ceremonies. The Borrower will give
the Lender ample advance notice of such events and will cooperate with and
provide to the Lender as much assistance as possible in connection with
obtaining such publicity.





10.21
SIGN REGARDING
CONSTRUCTION FINANCING





If
requested by the Lender, the Borrower will, at its cost and expense, erect and
maintain on a suitable location on the Land a sign indicating that the
construction financing for the Project is being provided by the Lender, such
location and sign to be subject to the approval of the Lender.





10.22
FURTHER
ASSURANCES





(a)
Regarding Construction. The Borrower will furnish or cause to be furnished to
the Lender all instruments­ documents, boundary surveys, footing or
foundation surveys, certificates, plans and specifications, title and other
insur­ance, reports and agreements and each and every other document and
instrument required to be furnished by the terms of this Agreement or the other
Loan Documents, all at the Borrower's expense.





(b)
Regarding Preservation of Collateral. The Bor­rower will execute and deliver
to the Lender such further docu­ments, instruments, assignments and other
writings, and will do such other acts necessary or desirable, to preserve and
protect the Collateral at any time securing or intended to secure the
Obligations, as the Lender may require.





(c)  Regarding  title.
If at any time the Lender or the Lender's counsel has reason to believe that any
Advance is not secured or will or may not be secured by the Mortgage as a first
lien or security interest on the Project, then the Borrower shall, within ten
(10) days after written notice from the Lender, do all things and matters
necessary, to assure to the satisfaction of the Lender and the Lender's counsel
that any Advance previously made hereunder or to be made hereunder is secured or
will be secured by the Mortgage as a first lien or security interest on the
Project, and the Lender, at its option, may decline to make further Advances
hereunder until the Lender has received such assurance, but nothing in this
Section 10.22 shall limit the Lender's right to require endorsements extending
the effective date of the Title Policy as herein set forth.





33




(d)
Regarding this Agreement. The Borrower will cooperate with, and will do such
further acts and execute such further instruments and documents as the Lender
shall reasonably request to carry out to its satisfaction the transactions
con­templated by this Agreement and the other Loan Documents.







10.23  NO MERGER OR
ACQUISITION





Borrower
will not merge or consolidate or be merged or consolidated with or into any
other corporation or business entity, nor acquire substantially all of the
assets and/or stock of another corporation or other business entity, unless
specifically authorized by Lender, in writing, in advance.





10.24  NO
SUBSTITUTION





This
Agreement may but need not be supplemented by separate assignments and pledges
and, if such assignments and pledges are given, the rights and security
interests given thereby shall be in addition to and not in limitation of the
rights and security interests given by this Agreement.  This Agreement
shall not act to terminate, cancel, revoke, nor otherwise cause a novation,
estoppel, or waiver of any or all prior security interests granted by Borrower
to Lender in and to any collateral contemplated by these presents, or other,
wholly or in part, and without exception; and any and all such security
interests shall continue to remain properly perfected by Borrower to Lender in
their terms and without interruption.





10.25  PROTECTION OF
COLLATERAL





Borrower
will maintain all Collateral in a condition which is comparable to that which
exists on the date of the issuance of the final Certificate of Occupancy, and
make any necessary repairs thereto, or replacements thereof; ordinary wear and
tear and obsolescence excepted.





Borrower
will at the request of Lender, promptly furnish Lender the receipted bills for
all payments required by this Agreement.  At its option, but without
liability so to do, Lender may discharge taxes, assessments, liens or security
interests or other encumbrances at any time levied or placed on the Collateral,
may pay for insurance on the Collateral and may pay for the maintenance and
preservation of the Collateral. Borrower agrees to reimburse Lender on demand
for any payments made by Borrower, or any expenses including attorneys' fees
incurred by Lender pursuant to the foregoing authorization, and upon failure of
Borrower so to reimburse Lender, any such sums paid or advanced by Lender shall
be deemed secured by the Collateral and constitute part of the
Loans.





10.26COMPLIANCE
WITH ERISA





The
Borrower will not:





(A)
engage in any prohibited transaction (within the meaning of Section 406 of ERISA
or Section 4975 of the Code), or commit any other breach of its fiduciary
responsibility under Part 4 of Title I of ERISA, which could subject the
Borrower or any Borrower Group Member to any material liability under Section
406, 409, 502(i) or 502(d) of ERISA or Section 4975 of the Code, or under any
agreement or other instrument pursuant to which the Borrower or such Borrower
Group Member could be required to indemnify any Person against any such
liability or which could otherwise have a Material Adverse Effect on the
Borrower or any Plan; or





(B) fail
to make any contribution required to be made by it to any Plan or Multiemployer
Plan or permit to exist with respect to any Plan any "accumulated funding
deficiency" (as such term is defined in Section 412 of the Code or Section 302
of ERISA), whether or not waived; or





34




(C) (i)
commence proceedings to terminate any Plan, other than in a "standard
termination" within the meaning of Section 4041 of ERISA, or (ii) permit to
exist any proceedings instituted by the PBGC to terminate or to have a trustee
appointed to administer any Plan, or (iii) withdraw from any Multiemployer Plan
in a manner which could result in the imposition of a withdrawal liability under
Part 1 of Subtitle E of Title IV of ERISA.





10.27  FINANCING
STATEMENTS





Prior to
any loan being made from Lender to Borrower, the Borrower hereby agrees that
Lender may file and record at Borrower’s cost, any financing statement, or other
notices appropriate under applicable law, in respect of any security interest
created pursuant to this Agreement or at any other time which may at any time be
required by the Lender.  The Borrower authorizes the Lender to file
any and all financing statements on behalf of the Borrower describing the
Collateral, as well as any agricultural liens or other statutory liens held by
Lender.  In the event that any re-recording or re-filing thereof (or
the filing of any statements of continuation or assignment of any financing
statement) is required to protect and preserve such lien or security interest,
the Borrower shall, at its cost and expense, cause the same to be re-recorded
and/or re-filed at the time and in the manner requested by the
Lender.  The Borrower hereby irrevocably designates the Lender, its
agents, representatives and designees as agents and attorneys-in-fact for the
Borrower to sign such financing statements, or other instruments in connection
herewith, on behalf of the Borrower and file the same, as
required.





10.28
TAXES AND
IMPOSITIONS





(A)
Borrower shall (i) pay and discharge all Impositions prior to delinquency, and
(ii) provide Lender validated receipts or such other evidence satisfactory to
Lender showing the payment of such Impositions within thirty (30) days after the
same would have otherwise become delinquent.  Borrower’s obligation to
pay the Impositions pursuant to this Agreement shall include, to the extent
permitted by applicable law, taxes resulting from future changes in law which
impose upon Lender an obligation to pay any property taxes or other
Impositions.  Should Borrower default on any payment of any
Impositions, Lender may (but shall not be obligated to) pay such Impositions or
any portion thereof and Borrower shall reimburse Lender on demand for all such
payment(s).





(B)
Borrower shall not be required to pay, discharge or remove any Imposition so
long as Borrower contests in good faith such Impositions or the validity,
applicability or amount thereof by an appropriate legal proceeding which
operates to prevent the collection of such amounts and the sale of the Mortgaged
Premises, or any portion thereof; provided, however, that prior to the date on
which such Imposition would otherwise have become delinquent, Borrower shall
have (i) given Lender prior written notice of such contest and (ii) deposited
with Lender, and shall deposit such additional amounts as are necessary to keep
on deposit at all times, in an amount equal to at least one
hundred  percent (100%) of the total of (A) the balance of such
Imposition then remaining unpaid, and (B) all interest, penalties, costs and
charges accrued or accumulated thereon.   Lender shall keep said
deposited amounts in an interest bearing, aggregated account (the “Account”) for
the Borrower and shall pay out interest at least annually
thereon.  Any such contest shall be prosecuted with due diligence, and
Borrower shall promptly pay from the Account, the amount of such Imposition as
finally determined, together with all interest and penalties payable in
connection therewith.  Lender shall have full power and authority to
apply any amount deposited with Lender pursuant to this clause to the payment of
any unpaid Imposition to prevent the sale or forfeiture of the Mortgaged
Premises or any portion thereof for non-payment thereof.  Lender shall
have no liability, however, for failure to so apply any amount
deposited.  Any surplus retained by Lender after payment of the
Imposition for which a deposit was made, shall be repaid to Borrower unless an
Event of Default shall have occurred, in which case said surplus may be retained
by Lender to be applied to the obligations in the sole discretion of the
Lender.  Notwithstanding any provisions of this clause to the
contrary, Borrower shall pay any Imposition which it might otherwise be entitled
to contest if, in the sole and absolute discretion of Lender, the Mortgaged
Premises, or any portion thereof or any Collateral, is in jeopardy or in danger
of being forfeited or foreclosed.  If Borrower refuses to pay any such
Imposition, Lender may (but shall not be obligated to) make such payment and
Borrower shall reimburse Lender on demand for all such advances.





10.29MAINTENANCE
OF RECORDS





35




Keep
adequate records and books of account, in which complete entries will be made in
accordance with GAAP consistently applied, reflecting all financial transactions
of the Borrower.





10.30MAINTENANCE
OF PROPERTIES





Maintain,
preserve and keep, its properties which are used or useful in the conduct of its
business (whether owned in fee or a leasehold interest) in good repair and
working order and from time-to-time will make all necessary repairs,
replacements, renewals and additions so that at all times the efficiency thereof
shall be maintained.  Borrower agrees that it will maintain and repair
the Collateral and the Mortgaged Premises and keep all of the same in good and
serviceable condition and in at least as good condition and repair as same were
on the date hereof or in such better condition and repair as same may have been
put thereafter.  Borrower will not waste or destroy or suffer the
waste or destruction of the Collateral or the Mortgaged Premises or any part
thereof.  Borrower will not use any of the Collateral or the Mortgaged
Premises in violation of any insurance thereon.  In the event of
damage to or destruction of all or any part of the Collateral or the Mortgaged
Premises from any cause, the Borrower shall repair, replace, restore and
reconstruct the Collateral and the Mortgaged Premises to the extent necessary to
restore each portion of same to its condition immediately prior to such damage
or destruction and this obligation shall not be limited by the amount of any
insurance proceeds available.





10.31COMPLIANCE
WITH LAWS





Promptly
pay and discharge all lawful taxes, assessments and governmental charges or
levies imposed upon the Borrower, or upon, or in respect of, all or any part of
the property or business of the Borrower, all trade accounts payable in
accordance with usual and customary business terms, and all claims for work,
labor or materials, which if unpaid might become a lien or charge upon any
property of the Borrower; provided the Borrower shall not be required to pay any
such tax, assessment, charge, levy, account payable or claim if (i) the
validity, applicability or amount thereof is being contested in good faith by
appropriate actions or proceedings which will prevent the forfeiture or sale of
any property of the Borrower or any material interference with the use thereof
by the Borrower, and (ii) the Borrower shall set aside on its books, reserves
deemed by it to be adequate with respect thereto. The Borrower will promptly
comply with all laws, ordinances or governmental rules and regulations to which
it is subject, including without limitation, the Occupational Safety and Health
Act of 1970, ERISA, the Americans with Disabilities Act and all Environmental
Laws in all applicable jurisdictions, the violation of which would materially
and adversely affect the properties, business, prospects, profits or condition
of the Borrower or would result in any lien or charge upon any property of the
Borrower.








10.32ENVIRONMENT





Notify
the Lender immediately of any notice of a hazardous discharge or environmental
complaint received from any governmental agency or any other party; notify the
Lender immediately of any hazardous discharge from or affecting its premises;
immediately contain and remove the same, in compliance with all applicable laws;
promptly pay any fine or penalty assessed in connection therewith, except such
assessments as are being contested in good faith, against which adequate
reserves have been established; upon receipt of such notification, permit the
Lender to inspect the premises, and to inspect all books, correspondence, and
records pertaining thereto; and at the Lender's request, and at the Borrower's
expense, provide a report of a qualified environmental engineer, satisfactory in
scope, form, and content to the Lender, arid such other and further assurances
reasonably satisfactory to the Lender that the condition has been
corrected.








10.33  PAYMENT OF
LOANS





The
Borrower will duly and punctually pay the Principal of, and interest on the
Loans in accordance with the terms of the Loans and this Agreement.





10.34  [RESERVED]





10.35  MORTGAGE
TAXES





36




Borrower
shall pay all taxes, charges, filing, registration, recording fees, excises and
levies imposed upon Lender by reason of their respective interest in, or
measured by amounts payable under the Note, this Agreement, the Mortgage or any
other Loan Document (other than income, franchise and doing business taxes), and
shall pay all stamp taxes and other taxes required to be paid on the Note, this
Agreement, the Mortgage or the other Loan Documents.  If Borrower
fails to make such payment within five days after notice thereof from Lender,
Lender may (but shall not be obligated to) pay the amount due, and Borrower
shall reimburse Lender on demand for all such Advances.  If applicable
law prohibits Borrower from paying such taxes, charges, filing, registration and
recording fees, excises, levies, stamp taxes or other taxes, then Lender may
declare the Indebtedness then unpaid to be immediately due and
payable.  In such event, no Prepayment Fee (as defined in the Note)
shall be charged.





10.36  LENDER’S
EXPENSES





Borrower
shall pay, on demand by Lender, all reasonable expenses, charges, costs and fees
in connection with the negotiation, documentation and closing of the Loan,
including all registration, recording fees and insurance consultant fees, if
any, environmental consultant fees, costs of appraisals, costs of engineering
reports, fees and disbursements of all counsel (both local and special) of
Lender, escrow fees, cost of surveys, fees and expenses of Lender’s Consultant
or others employed by Lender to inspect the Collateral from time to time and
reasonable out-of-pocket travel expenses incurred by Lender and Lender's agents
and employees in connection with the Loan.  At Closing, Lender may pay
directly from the proceeds of the Loan each of the forgoing
expenses.








10.37           OPERATING
BUDGET. On or before December 31st of each year during the term of the
Loan Borrower shall submit to Lender for Lender's review and approval Borrower's
Operating Budget for the Mortgaged Premises for the following calendar year. The
Operating Budget shall include all budgeted Gross Revenues, Operating Expenses
and capital expenditures for the Mortgaged Premises.   Operating
Expenses and capital expenditures shall be in a detailed line item format, and
the Operating Budget shall include a comparison to the immediately preceding
year.




11.00
NEGATIVE COVENANTS OF
THE BORROWER
 
 The
Borrower covenants and agrees that, so long as the Construction Loan is
outstanding or the Lender has any obligation to make any Advances:
 
 11.01
RESTRICTION ON CHANGE
ORDERS
 
 The
Borrower will not cause, permit or suffer to exist any deviations from the Plans
and Specifications, which will result in a decrease in the Project Costs of
Fifty Thousand and 00/100 Dollars ($50,000.00) or an increase in the Project
Costs of Fifty Thousand and 00/100 Dollars ($50,000.00) and will not approve or
consent to any change order or construction change directive except where the
same is being paid for by the Borrower and has in fact been fully paid by the
Borrower simultaneous with the request for a change order or construction change
directive without the prior approval which will not be unreasonably withheld or
delayed, of the Lender.
 
 11.02
RESTRICTIONS ON
EASEMENTS, COVENANTS AND RESTRICTIONS
 
 The
Borrower will not create or suffer to be created or to exist any easement, right
of way, restriction, covenant, condition, license or other right in favor of any
Person which affects or might affect title to the Project or the use and
occupancy of the Project or any part thereof without (i) submit­ ting to the
Lender and the proposed instru­ment creating such easement, right of way,
covenant, condition, license or other right, accompanied by a survey showing the
exact proposed location thereof and such other information as the Lender may
reasonably request, and (ii) obtaining the prior approval of the
Lender.
 
 11.03
NO AMENDMENTS,
TERMINATIONS OR WAIVERS
 
 37
 (a) The
Borrower will not amend, supplement or other­wise modify, whether by change
order or otherwise, any of the terms and conditions of the Architect's Contract
or the Construc­tion Contract  without in each case the prior
approval of the Lender, and in the case of the Con­struction Contract,
without the prior approval of the Lender.
 
 (b) The
Borrower will not, directly or indirectly, terminate or cancel, or cause or
permit to exist any condition which would result in the termination or
cancellation of, or which would relieve the performance of any obligations of
any other party under, the Architect's Contract or the Construction
Contract.
 
 (c) The
Borrower will not, directly or indirectly, waive or agree or consent to the
waiver of, the performance of any obligations or any other party under the
Architect's Con­tract of the Construction Contract.
 
 
 11.04
RESTRICTIONS ON
INDEBTEDNESS
 
 Excluding
a mortgage, junior to the Lender’s mortgage, when it does not agree to Fund the
Expansion (the “Expansion Mortgage” the Borrower will not create, incur, assume,
guarantee or be or remain liable, contin­gently or otherwise, with respect
to any Indebtedness other than:
 
 (a)
Indebtedness to the Lender arising under any of the Loan Documents;
 
 (b)
current liabilities of the Borrower incurred in the ordinary course of business
but not incurred through (i) the borrowing of money, or (ii) the obtaining of
credit­ except for credit on an open account basis customarily extended and
in fact extended in connection with normal purchases of goods and
services;
 
 (c)
Indebtedness in respect of taxes, assessments, governmental charges or levies
and claims for labor, mate­rials and supplies to the extent that payment
therefore shall not at the time be required to be made in accordance with the
provisions of Section 10.10 (provided, however, that with respect to any
Indebtedness to the Contractor, the Contrac­tor shall have entered into a
subordination agreement (the "Contractor's Subordination Agreement"), in form
and substance satisfactory to the Lender, subordinating the Bor­rower's
obligation to pay Retainage to the full payment and performance of the
Obligations);
 
 (d)
Indebtedness in respect of judgments or awards that have been in force for less
than the applicable period for taking an appeal so long as execution is not
levied thereunder or in respect of which the Borrower shall at the time in good
faith be prosecuting an appeal or proceeding for review and in respect of which
a stay of execution shall have been obtained pending such appeal or
review;
 
 (e)
endorsements for collection, deposit or negotia­tion and warranties of
products or services, in each case incurred in the ordinary course of business;
and
 
 (f)
unsecured Indebtedness of the Borrower owing to any member of the Borrower
(including the Required Equity Funds), that is ex­pressly subordinated and
made junior to the payment and performance in full of the Obligations and
evidenced as such by a written instrument containing subordination provisions in
form and substance approved by the Lender.
 
 11.05
RESTRICTIONS ON LIENS,
ETC.
 
 Excluding
the Expansion Mortgage, the Borrower will not (a) create or incur or suffer to
be created or incurred or to exist any lien, encumbrance, mortgage, pledge,
charge­ restriction or other security interest of any kind upon any of its
property or assets of any character whether now owned or hereafter acquired, or
upon the income or profits therefrom; (b) transfer any of its property or assets
or the income or profits therefrom for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in prior­ity
to payment of its general creditors; (c) acquire or agree or have an option to
acquire, any property or assets upon condi­tional sale or other title
retention or purchase money security agreement, device or arrangement; (d)
suffer to exist for a period of more than thirty (30) days after the same shall
have been incurred any Indebtedness or claim or demand against it that if unpaid
might by law or upon bankruptcy or insolvency, or otherwise, be given any
priority whatsoever over
  38
  its
general creditors; or (e) sell, assign, pledge or otherwise transfer any
accounts, contract rights, general intangibles, chattel paper or instruments,
with or without recourse; provided that the Borrower may create or incur or
suffer to be created or incurred or to exist, the following Permitted
Liens:
 
 (i) liens
to secure taxes, assessments and other governmental charges or claims for labor,
material or supplies in respect of obligations not overdue;
 
 (ii)
deposits or pledges made in connection with, or to secure payment of, workmen's
compensation, unemployment  insurance, old age pensions or other
social security obli­gations;
 
 (iii)
liens of carriers, warehousemen, mechanics and materialmen, and other like liens
on properties other than the Project in existence less than 120 days from the
date of creation thereof in respect of obligations not overdue;
 
 (iv)
encumbrances on properties other than the Project consisting of easements,
rights of way, covenants, restric­tions on the use of real property and
defects and irregu­larities in the title thereto, landlord's or lessor's
liens under leases to which the Borrower is a party, and other minor liens or
encumbrances on properties other than the Project none of which in the opinion
of the Borrower inter­feres materially with the use of the property affected
in the ordinary conduct of the business of the Borrower, which defects do not
individually or in the aggregate have a materially adverse effect on the
business of the Borrower;
 
 (v) liens
in favor of the Lender under the Loan Documents; and
 
 (vi)
other liens on the Project consisting of ease­ments, rights of way,
covenants and restrictions if and to­ the extent the same have been approved
by the Lender.
 
 11.06
RESTRICTIONS ON
INVESTMENTS
 
 The
Borrower will not make or permit to exist or to remain outstanding any
Investment except Investments in:
 
 (a)
marketable direct or guaranteed obligations of the United States of America that
mature within one (1) year from the date of purchase by the
Borrower;
 
 (b)
demand deposits, certificates of deposit, bankers acceptances and time deposits
of United States banks having total assets in excess of $1,000,000,000;
and
 
 (c)
securities commonly known as "commercial paper" issued by a corporation
organized and existing under the laws of the United States of America or any
state thereof that at the time of purchase have been rated and the ratings for
which are not less than "P 1" if rated by Moody's Investors Services, Inc., and
not less than "A 1" if rated by Standard and Poor's.
 
 11.07
MERGER, CONSOLIDATION
AND DISPOSITION OF ASSETS
 
 (a) The
Borrower will not become a party to any merger or consolidation, or agree to or
effect any asset acquisition or stock acquisition (other than the acquisition of
assets in the ordinary course of business consistent with past
practices).
 
 (b) The
Borrower will not become a party to or agree to or effect any disposition of the
Project or any part thereof, unless such agreement provides for the payment, in
full, of all of Borrower's Obligations.
 
 (c) The
Borrower will not become a party to or agree to effect any disposition of
assets, other than the disposition of assets not included in the Project in the
ordinary course of business, consistent with the past practices.
 
 11.08
SALE AND
LEASEBACK
 
 39
  The
Borrower will not enter into any arrangement, directly or indirectly, whereby
the Bor­rower shall sell or transfer any property owned by it in order then
or thereafter to lease such property or lease other property that the Borrower
intends to use for substantially the same purpose as the property being sold or
transferred.
 
 
 11.09
COMPLIANCE WITH
ENVIRONMENTAL LAWS
 
 Except as
set forth on Exhibit “M”, the Borrower will not do any of the following: (a) use
any of the Real Estate or any portion thereof as a facility for the handling,
processing, storage or disposal of Hazardous Materials, (b) cause or permit to
be located on any of the Real Estate any underground tank or other underground
storage receptacle for Hazardous Materials except in full compliance with
Environmental laws, (c) generate any Hazardous Materials on any of the Real
Estate except in full compliance with Environmental Laws, or (d) conduct
any­ activity at any Real Estate or use any Real Estate in any manner so as
to cause a Release.
 
 11.10
DISTRIBUTIONS
 
 The
Borrower will not make any Distributions during the tenure of its Construction
Loan; provided, however, that during the tenure of the Construction Loan, the
Borrower may make distributions provided that (i) no Event of Default has
occurred and (ii) the Borrower has complied with all terms, covenants and
conditions of this Agreement, including, without limitation, the covenants set
forth in Section 17.01 hereof.
 
 11.11  NO
GUARANTEES
 
 Borrower
will not assume, guaranty, endorse or otherwise become directly or contingently
liable, or permit any of its subsidiaries to assume, guaranty, endorse, or
otherwise become directly or contingently liable (including, without limitation,
liable by way of agreement, contingent or otherwise, to purchase, to provide
funds for payment, to supply funds to or otherwise invest in any debtor or
otherwise to assure any creditor against loss) in connection with any Debt of
any other Person.
 
 11.12
CORPORATE
LOANS
 
 Subject
to Section 11.04, the Borrower agrees that it shall neither make any
loans,  nor investments in other corporations, business entities or to
any other Persons, until all Obligations are fully paid.
 
 11.13
ADVERSE
TRANSACTIONS
 
 The
Borrower shall not enter into any transaction which adversely affects the
Collateral or its ability to repay the Obligations in full as and when
due.
 
 11.14  PREPAYMENT
 
 The
Borrower shall not prepay any Debt other than the Obligations, except in the
ordinary course of business and to the extent that it does not have a material
adverse effect on the financial condition of the Borrower.
 
 11.15
AFFILIATE
TRANSACTIONS
 
 Excluding
distributions to the sole member where no Event of Default has occurred or will
occur after giving effect to the distribution, the Borrower shall not, sell,
transfer, distribute or pay any money or property to any Affiliate or invest in
(by capital contribution or otherwise) or purchase or repurchase any stock or
debt, or any property, of any Affiliate, or become liable on any guaranty of the
indebtedness, dividends or other obligation of any Affiliate.
 
 12.00
CONDITIONS TO INITIAL
ADVANCE
 
 40
  The
obligation of the Lender to make the initial Advance shall be subject to the
satisfaction of the following conditions precedent:
  
 12.01
LOAN
DOCUMENTS
 
 Each of
the Loan Documents shall have been duly executed and delivered by the respective
parties thereto, shall be in full force and effect and shall be in form and
substance satisfactory to the Lender. The Lender shall have received a fully
executed copy of each such document.
 
 12.02
CONSTRUCTION
DOCUMENTS
 
 Each of
the Architect's Contract and Construction Contract shall have been duly executed
and delivered by the respective parties thereto, shall be in full force and
effect, and shall be in form and substance satisfactory to the Lender. The
Lender shall have received a certified or a fully executed copy of each such
document. The Borrower's Architect and the Contractor shall have duly executed
and deliv­ered to the Lender a consent to the assignment of the Architect's
Contract and the Construction Contract, in form and substance satisfactory to
the Lender, and the Lender shall have received a fully executed copy
thereof.
 
 12.03
SUBCONTRACTS
 
 The
Borrower shall have delivered to the Lender, and the Lender shall have approved,
a list of all subcontractors and materialmen who have been or, to the extent
identified by the Borrower, will be supplying labor or materials for the
Project, a copy of the standard form of subcontract to be used by the
Contractor, and correct and complete photocopies of all executed subcontracts
and contracts.
 
 12.04
OTHER
CONTRACTS
 
 The
Borrower shall have delivered to the Lender correct and complete photocopies of
all other executed contracts with contractors, engineers or consultants for the
Project, the Project Budget, and of all development, management, brokerage,
sales or leasing agreements for the Project.
 
 12.05
EQUITY
INFUSION
 
 Borrower
shall have contributed its equity into the Project and the amount of the loan,
less the Interest Reserve is sufficient to fully build out the Project in
accordance with the Budget.
 
 12.06
CERTIFIED COPIES OF
ORGANIZATION DOCUMENTS
 
 The
Lender shall have received from the Borrower, a copy, certified as of a recent
date by the appropriate officer of the State in which the Borrower is organized,
to be true and complete, of its operating agreement and any other of its
organization documents as in effect on such date of certification.
 
 12.07
RESOLUTIONS
 
 All
action necessary for the valid execution, delivery and performance by the
Borrower  of this Agreement and the other Loan Docu­ments to which
it is or is to become a party shall have been duly and effectively taken, and
evidence thereof satisfactory to the Lender shall have been provided to the
Lender. The Lender shall have received from the Borrower, true copies of the
resolutions adopted by its members authoriz­ing the transactions described
herein, each certified as of a recent date to be true and complete.
 
 12.08
INCUMBENCIES
CERTIFICATE; AUTHORIZED SIGNERS
 
 41
  The
Lender shall have received from the Borrower and each of its members, an
incumbency certificate, dated as of the Closing Date, signed by a duly
authorized members of the Borrower and giving the name and bearing a
speci­men signature of each individual who shall be authorized: (a) to sign,
in the name and on behalf of the Borrower, each of the Loan Documents to which
such Person is or is to become a party; (b) in the case of the Borrower, to make
Draw Requests; and (c) to give notices and to take other action on its behalf
under the Loan Documents.
 
 12.09
VALIDITY OF
LIENS
 
 The
Security Documents shall be effective to create in favor of the Lender a legal,
valid and enforceable first lien and security interest in the Collateral and
first mortgage on the Project. All filings, recordings, deliveries of
instruments and other actions necessary or desirable in the opinion of the
Lender to protect and preserve such lien and security interest shall have been
duly effected. The Lender shall have received evidence thereof in form and
substance satisfactory to the Lender.
 
 12.10  DELIVERY OF
DOCUMENTS
 
 The
following items or documents shall have been delivered to the Lender by the
Borrower and shall be in form and substance satisfactory to the
Lender:
 
 (a) Plans and
Specifications. Two complete sets of the Plans and Specifications and
approval thereof by any necessary Governmental Authority, with a certification
from the Borrower's Architect that the Improvements to be constructed comply
with all Requirements and Project Approvals.
 
 (b) Title Policy. The
Title Policy, together with proof of payment of all fees and premiums for such
policy and true and accurate copies of all documents listed as exceptions under
such policy.
 
 (c) Other Insurance.
Duplicate originals or certified copies of all policies of insurance required by
the Mortgage to be obtained and maintained by the Borrower during the
construction of the Improvement; provided, however, at the Closing, Binders of
insurance policies and/or Certificates of Insurance will be
provided.  Photocopies will be delivered within fifteen (15) days
following the Closing, and certificates of insurance evidencing the insurance
required by Sections 10.09(b) and (c) to be obtained and maintained by the
Contractor and the Borrower's Architect.
 
 (d) Evidence of Sufficiency of
Funds.  Evidence that the proceeds of the Construction Loan,
together with the Required Equity Funds delivered to the Lender on the Closing
Date, will be sufficient to cover all Project Costs reasonably anticipated to be
incurred to complete the Improvements prior to the Completion Date, to carry the
Project through the Maturity Date and to satisfy the obligations of the Borrower
to the Lender under this Agreement.
 
 (e) Evidence of Access,
Availability of Utilities, Project Approvals.  Evidence as
to:
 
 (i) the
methods of access to and egress from the Project, and nearby or adjoining public
ways, meeting the reasonable requirements of the Project and the status of
completion of any required improvements to such access;
 
 (ii) the
availability of water supply and storm and sanitary sewer facilities meeting the
reasonable requirements of the Project;
 
 (iii) the
availability of all other required utilities, in location and capacity
sufficient to meet the reasonable needs of the Project; and
 
 (iv) the
obtaining of all Project Approvals which are required, necessary or desirable
for the construc­tion of the Improvements and the access thereto, together
with copies of all such Project Approvals.
 
 42
  (f) Environmental Report.
An environmental site assessment report or reports of one or more qualified
environmental engineering or similar inspection firms approved by the Lender,
which report or reports shall indicate a condition of the Land and any existing
improve­ments thereon in all respects satisfactory to the Lender in­ its
sole discretion and upon which report or reports the Lender is expressly
entitled to rely.
 
 (g)  Soils
Report.  A soils report for the Land prepared by a soils
engineer approved by the Lender, which report shall indicate that, based upon
actual surface and subsurface examinations of the Land, the soils conditions are
fully satisfactory for the proposed construction and operation of the
Improvements in accordance with the Plans and Specifications.
 
 (h) Surveys and Taxes. A
Survey of the Land (and any existing improvements thereon) and Surveyor's
Certificate, and evidence of payment of all real estate taxes and munic­ipal
charges on the Land (and any existing improvements thereon) which were due and
payable prior to the Closing Date.
 
 (i)
Draw Request. A
Draw Request complying with the provisions of Section 3.01 hereof.
 
 12.11  [RESERVED]
 
 12.12
CONSTRUCTION INSPECTOR
REPORT
 
 The
Lender shall have received a report or written confirmation from the
Con­struction Inspector that (a) the Construction Inspector has reviewed the
Plans and Specifications, (b) the Plans and Speci­fications have been
received and approved by each Governmental Authority to which the Plans and
Specifications are required under applicable Requirements to be submitted, (c)
the Construc­tion Contract satisfactorily provides for the construction of
the Improvements, and (d) in the opinion of the Construction Inspec­tor,
construction of the Improvements can be completed on or before the Completion
Date for an amount not greater than the amount allocated for such purpose in the
Project Budget.
 
 12.13
LEGAL
OPINIONS
 
 The
Lender shall have received favorable opinions in form and substance satisfactory
to the Lender and the Lender's counsel, addressed to the Lender and dated as of
the Closing Date, from Borrower’s legal counsel­, opining to those matters
described on Exhibit
“R”.
 
 12.14
LIEN
SEARCH
 
 The
Lender shall have received a certification from Title Insurance Company or
counsel satisfac­tory to the Lender (which shall be updated from time to
time at the Borrower's expense upon request by the Lender) that a search of the
public records disclosed no conditional sales contracts, security agreements,
chattel mortgages, leases of personalty, financing statements or title retention
agreements which affect the Collateral.
 
 12.15
NOTICES
 
 All
notices required by any Governmental Authority under applicable requirements to
be filed prior to commencement of construction of the Improvements shall have
been filed.
 12.16
APPRAISAL
 
 The
Lender shall have received an Appraisal, in form and substance satisfactory to
the Lender, stating that the Project, assuming completion in accordance with the
Plans and Specifications, has a fair market value of at least Seventeen Million
One Hundred Forty Two Thousand Eight Hundred Fifty Seven and 00/100 Dollars
($17,142,857.00).
 
 43
  12.17
PERFORMANCE; NO
DEFAULT
 
 The
Borrower shall have performed and complied with all terms and conditions herein
required to be performed or complied with by it on or prior to the Drawdown Date
of the initial Advance, and on the Drawdown Date of the initial Advance, there
shall exist no Default or Event of Default.
 
 12.18
REPRESENTATIONS AND
WARRANTIES
 
 The
representa­tions of warranties of  the Borrower and the Guarantor
in the Loan Documents or otherwise made by or on behalf of the Borrower or the
Guarantor in connection therewith or after the date thereof shall have been true
and correct in all material respects when made and shall be true and correct in
all material respects on the Drawdown Date of the initial Advance.
 
 
 12.19
PROCEEDINGS AND
DOCUMENTS; COSTS
 
 All
proceedings in connection with the transactions contemplated by this
Agree­ment and the other Loan Documents shall be satisfactory to the Lender
and the Lender's counsel in form and substance, and the Lender shall have
received all information and such counterpart originals or certified copies of
such documents and such other certificates, opinions or documents as the Lender
and the Lend­er's counsel may reasonably require. The Borrower shall
reim­burse Lender on demand for all reasonable costs and expenses incurred
by Lender in connection with the Construction Loan, including, without
limitation, legal, engineering, inspection and appraisal fees.
 
 12.20   LEASES/SUBORDINATION
AGREEMENTS AND ESTOPPELS
 
 Certified
copies of all Leases, together with a Subordination, Nondisturbance and
Attornment Agreements executed by  the Primary Tenant located at the
Mortgaged Premises as are required by the title company in order to confirm that
no Lease has priority over the Mortgage all as more fully described in Exhibit
S.”
 
 
 12.21
LICENSES, PERMITS AND
APPROVALS
 
 A copy of
the final unconditional Certificate of Occupancy (“CO”) issued with respect to
the Mortgaged Premises if (a CO has been issued and is reasonably available from
the City authorities), together with such other applicable licenses, permits and
approvals as Lender or any governmental authority may require.
 
 
 ­           13.00CONDITIONS
OF SUBSEQUENT ADVANCES
 
 The
obligation of the Lender to make any Advance after the initial Advance shall be
subject to the satisfaction of the following conditions
prece­dent:
 
 13.01
PRIOR CONDITIONS
SATISFIED
 
 All
conditions prece­dent to the initial Advance and any prior Advance shall
continue to be satisfied as of the Drawdown Date of such subsequent
Advance.
 
 13.02
PERFORMANCE; NO
DEFAULT
 
 The
Borrower shall have performed and complied with all terms and conditions herein
required to be performed or complied with by it on or prior to the Drawdown Date
of such Advance, and on the Drawdown Date of such Advance there shall exist no
Default or Event of Default.
 
 13.03
REPRESENTATIONS AND
WARRANTIES
 
 44
  Each of
the repre­sentations and warranties made by the Borrower in the Loan
Documents or otherwise made by or on behalf of the Borrower and/or Guarantor in
connection therewith after the date thereof shall have been true and correct in
all respects on the date on when made and shall also be true and correct in all
material respects on the Drawdown Date of such Advance (except to the extent of
changes resulting from transactions contemplated or permitted by the Loan
Documents and changes occurring in the ordinary course of business that singly
or in the aggregate are not adverse).
 
 13.04
NO
DAMAGE
 
 The
Improvements shall not have been injured or damaged by fire, explosion,
accident, flood or other casualty.
 
 13.05
RECEIPT OF
LENDER
 
 The
Lender shall have re­ceived:
 
 (a) Draw Request. A Draw
Request complying with the requirements hereof, including those set forth in
Section 3.01 hereof;
 
 (b) Endorsement to Title
Policy. A "date down" endorsement to the Title Policy indicating no
change in the state of title and containing no survey exceptions not approved by
the Lender, which endorsement shall, expressly or by virtue of a proper "pending
disbursements" clause of endorsement in the Title Policy, increase the coverage
of the Title Policy to the aggregate amount of all proceeds of the Construction
Loan advanced on or before the effective date of such endorsement, and prior to
the final advance, an endorsement which confirms that the Project is located as
set forth in the “as built” survey.
 
 (c) Current Survey. An
updated Survey if required by the Title Insurance Company or the Lender and
prior to the last advance, an “as built”  survey;
 
 (d) Approval by Construction
Inspector. Approval of the Draw Request for such Advance by the
Construction­ Inspector, accompanied by a certificate or report from the
Construction Inspector to the effect that in its opinion, based on on-site
observations and submissions by the Contractor, the construction of the
Improvements to the date thereof was performed in a good and workmanlike manner
and in accordance with the Plans and Specifications, stating the estimated total
cost of construction of the Improvements, stating the percentage of in-place
construction of the Improvements, and stating that the remaining non-disbursed
portion of the Construction  Loan and Required Equity Funds allocated
for such purpose in the Project Budget is adequate to complete the construction
of the Improvements;
 
 (e)  Approval by
Lender.  At the option of the Lender, inspection of work in
place;
 
 (f)
Contracts.
Evidence that one hundred percent (100%) of the cost of the remaining
construction work is covered by firm fixed price or guaranteed maximum price
contracts or subcontracts, or orders for the supplying of materials, with
contractors, subcontractors, materialmen or suppliers satisfactory to the
Lender; and
 
 (g) Change Orders.
Documentation to the effect that the Borrower has paid for the cost of any
change orders relating to the Project.
 
 14.00
SECURITY
INTEREST
 
 Borrower,
for valuable consideration received, hereby pledges, assigns, transfers and
grants to Lender a continuing lien and security interest in all tangible and
intangible personal property of Borrower (whether now existing or hereafter
acquired or arising, and wherever located) upon, concerning or in any way
relating to, or unrelated to, the Mortgaged Premises, including, without
limitation, (i) all fixtures, machinery, equipment, furniture, inventory,
building supplies, appliances and other personal property, including, but not
limited to, furnaces, ranges, heaters, plumbing goods, gas and electric
fixtures, screens, screen doors, mantels, shades, storm doors and windows,
  45
  awnings,
oil burners and tanks, gas or electric refrigerators and refrigerating systems,
ventilating and air conditioning apparatus and equipment, doorbell and alarm
systems, sprinkler and fire extinguishing systems, portable or sectional
buildings, and all other fixtures and equipment of whatever kind or nature now
or hereafter located in or on the Mortgaged Premises, or used or intended to be
used in connection with the use, operation, construction or enjoyment of the
Mortgaged Premises, all of which shall be deemed fixtures and a part of the
Mortgaged Premises as between the parties hereto and all persons claiming by,
through or under them, (ii) all leases, contracts or agreements relating to the
lease, rental, hire or use by Borrower of any of the aforementioned personal
property, (iii) all leases, tenancies, occupancies and license arrangements
heretofore or hereafter entered into affecting the use, enjoyment or occupancy
of or the conduct of any activity upon or in to the Mortgaged Premises or any
portion thereof, and all guaranties and security relating thereto (individually,
a “Lease” and collectively, the “Leases”), (iv)  all rents, issues,
profits and other benefits from the Mortgaged Premises, any of the personal
property described herein, and any of the leases, tenancies, occupancies,
license arrangements and rental agreements relating thereto, (v) all contracts,
agreements, accounts, chattel paper, general intangibles, licenses, rights,
permits and approvals, privileges, warranties and representations relating to
the ownership, use, operation, management, construction, repair or service of
any of the Mortgaged Premises or personal property described herein, (vi) any
and all agreements to sell the Mortgaged Premises or any portion thereof, (vii)
all funds held by Lender  as tax or insurance escrow payments or for
other purposes, (viii) all insurance policies and all proceeds or unearned
insurance premiums relating thereto, (ix) all claims, awards, damages or
proceeds resulting from any condemnation or other taking of, or for any damage
to, any of the Mortgaged Premises or personal property described herein, (x) all
claims to rebates, refunds or abatements of any property taxes relating to any
of the Mortgaged Premises or personal property described herein, (xi) all
construction contracts, subcontracts, architectural agreements, labor, material
and payment bonds, guaranties and warranties, and plans and specifications
relating to the construction of improvements upon the Mortgaged Premises, (xii)
all proceeds, products, substitutions and accessions to any of the foregoing,
together with, and whether or not related to the Mortgaged Premises, and all
machinery, equipment, goods, inventory, accounts, including health care
insurance receivables, chattel paper, general intangibles, including payment
intangibles and amounts owed by other than customers, regardless of whether or
not they constitute proceeds of other collateral; all chose-in-action, cash,
cash deposits, deposit accounts, investment property, including without
limitation, securities, stocks, bonds,  warrants, options, documents,
documents of title, instruments, including promissory notes, deposits, debts,
refunds, letter of credit rights, supporting obligations,  policies
and certificates of insurance, obligations and liabilities in whatever form
owing from any person, corporation, or other legal entity; all books, records,
evidences of title, goodwill and all papers relating to the operation of the
Borrower's business; all federal, state, and local tax refunds and/or abatements
and any loss carryback tax refunds; all patents, patents rights, trade secrets,
know-how, trademarks, trade names, logos, registrations, customer lists,
computer programs, and assignments of patents all intellectual property as
defined in 11 USC 101 (53) to the extent that such intellectual property is
assignable; all fixtures, real estate leases, any and all equipment leases,
rentals and other sums payable thereunder, other chattel paper, purchase option
payments, lessor's interest in leased equipment and insurance proceeds; any
licenses or interests in real estate; all liens, guarantees, securities, rights,
remedies and privileges pertaining to all of the foregoing, all property
allocable to unshipped orders and all merchandise returned by or reclaimed by or
repossessed from customers, all rights of stoppage in transit, replevin,
repossession and reclamation and all other rights of an unpaid vendor or lienor;
and all interest of the Borrower in goods or merchandise as to which an account
receivable for goods sold or delivered has arisen;
 
 And all
of the above, wherever located, whether now owned or now due or hereafter
arising or acquired or coming due and including the products and proceeds
thereof (if any) and all accessions and additions thereto and all replacements
and substitutions therefore, cash and stock dividends (if applicable), and all
proceeds of credit, fire, casualty, or other insurance upon said property, or
any of the above which are acquired with any cash proceeds or other
collateral.  The term "proceeds" shall include, without limitation,
all types or classifications of non-cash proceeds acquired with cash proceeds
(all of the foregoing shall collectively be referred to as the
“Collateral”).
 
 14.01  The security
interest granted hereby is to secure payment and performance of all Obligations
from Borrower to Lender, together with all interest, fees, charges and expenses
including the reasonable expenses of the Lender's counsel in the maintaining,
foreclosing and selling of any of the Collateral.
 
 14.02  IT IS THE
TRUE, CLEAR, AND EXPRESS INTENTION OF THE Borrower that the continuing grant of
this security interest remain as security for payment and performance of all
Obligations, whether now existing, or which may hereinafter be incurred by
future advances, or otherwise; and whether, or not, such obligation
  46
  is
related to the transaction described in this Agreement, by class, or kind, or
whether or not contemplated by the parties at the time of the granting of this
security interest.  The notice of the continuing grant of this
security interest therefore shall not be required to be stated on the face of
any document representing any such obligation, nor otherwise identified it as
being secured hereby.
 
 15.00
EVENTS OF DEFAULT AND
REMEDIES
 
 15.01
EVENTS OF
DEFAULT
 
 The
occurrence of any one or more of the following conditions or events shall
constitute an "Event of Default":
 
 (a) any
failure by the Borrower to pay when due and payable any interest on or principal
of or other sum payable under the Construction Note; or
 
 (b) any
failure by the Borrower following five (5) days notice from Lender to Borrower
to deposit with the Lender any funds required by Section 10.16 hereof to be
deposited with the Lender, at the time and otherwise in accordance with Section
10.16; or
 
 (c) any
failure by the Borrower following five (5) days notice from Lender to Borrower
to pay as and when due and payable any other sums to be paid by the Borrower to
the Lender under this Agreement or any of the Loan Documents; or
 
 (d) title
to the Collateral is or becomes unsatisfac­tory to the Lender by reason of
any lien, charge,­ encumbrance, title condition or exception (including
without limitation, any mechanic's, materialmen's or similar statu­tory or
common law lien or notice thereof), and such matter causing title to be or
become unsatisfactory is not cured or removed (including by bonding) within
thirty (30) days after notice thereof from the Lender to the Borrower;
or
 
 (e) any
refusal by the Title Insurance Company to insure any Advance as being secured by
the Mortgage as a valid first lien and security interest on the Project and
continuance of such refusal for a period of thirty (30) days after notice
thereof by the Lender to the Borrower; or
 
 (f) the
Improvements are not completed by the Comple­tion Date or, in the reasonable
judgment of the Lender, construction of the Improvements will not be completed
by the Completion Date; or
 
 (g) the
Project or any part thereof is injured by fire, explosion, accident, flood or
other casualty, provided, however, no Event of Default under this Agreement or
any of the Loan Documents has occurred, and there are sufficient insurance
proceeds to restore the Project and the cost to remedy the casualty is less then
available insurance proceeds then, in this case, this Section 15.01(g) shall not
constitute an Event of Default; or
 
 (h) the
Project or any part thereof is subject to a Taking, provided, however, Lender
agrees to allow payments to be made in accordance with the terms of the
Mortgage
 ;
or
 
 (w) any
of the members of the Borrower and/or any Guarantor shall be convicted for a
federal crime, a punish­ment for which could include the forfeiture of any
of its assets; or­
 
 (x) any
failure by the Borrower and/or any Guarantor to duly observe or perform any
other term, covenant, condition or agreement under this Agreement and
continuance of such failure for a period of thirty (30) days after notice
thereof from the Lender; or
 
 15.02
TERMINATION OF
COMMITMENT AND ACCELERATION
 
 If
any one or more of the Events of Default shall occur, the Lender may declare its
obligations to make Advances hereunder to be terminated, whereupon the same
shall terminate and the Lender shall be relieved of all
  47
  obligations
to make Advances to the Borrower, and/or declare all unpaid princi­pal of
and accrued interest on the Construction Note, together with all other amounts
owing under the Loan Documents, to be immediately due and payable, whereupon
same shall become and be immediately due and payable, ­and without
presentment, protest, demand or other notice of any kind, all of which are
hereby expressly waived by the Borrower.
 
 15.03
COMPLETION OF
PROJECT
 
 If any
one or more of the Events of Default shall have occurred and continue past any
applicable grace period,  and whether or not the Lender shall have
terminated its obligations to make Advances and accelerated the maturity of the
Construction Loan pursuant to Section 15.02, the Lender, if the construction of
the Improvements has not been fully completed, may cause the Project to be
completed and may enter upon the Land and construct, equip and complete the
Project in accordance with the Plans and Specifications, with such changes
therein as the Lender may, from time to time, and in its sole discretion, deem
appropriate. In connection with any construction of the Project undertaken by
the Lender pursuant to the provisions of this Section 15.03, the Lender
may:
 
 (a) use
any funds of the Borrower, including any balance which may be held by the Lender
as security or in escrow, and any funds remaining unadvanced under the
Construction Loan;
 
 ­           (b)
employ existing contractors, subcontractors, agents, architects, engineers, and
the like, or terminate the same and employ others;
 
 (c)
employ security watchmen to protect the Project;
 
 (d) make
such additions, changes and corrections in the Plans and Specifications as
shall, in the judgment of the Lender, be necessary or desirable;
 
 (e) take
over and use any and all Personal Property contracted for or purchased by the
Borrower, if appropriate, or dispose of the same as the Lender sees
fit;
 
 (f)
execute all applications and certificates on behalf of the Borrower which may be
required by any Govern­mental Authority or Requirements or contract
documents or agreements;
 
 (g) pay,
settle or compromise all existing or future bills and claims which are or may be
liens against the Project, or may be necessary for the completion of the
Improvements or the clearance of title to the Project;
 
 (h)
complete the marketing and leasing of leasable space in the Improvements, enter
into new Leases, and modify or amend existing Leases, all as the Lender shall
deem to be necessary or desirable;
 
 (i)
prosecute and defend all actions and proceedings in connection with the
construction of the Improvements or in any other way affecting the Land;
and
 
 (j) take
such action hereunder, or refrain from acting hereunder, as the Lender may, in
its sole and absolute discretion, from time to time determine, and without any
limitation whatsoever, to carry out the intent of this Section
15.03.
 
 The
Borrower shall be liable to the Lender for all costs paid or incurred for the
construction, equipping and completion of the Project, whether the same shall be
paid or incurred pursuant to the provisions of this Section 15.03 or otherwise,
and all payments made or liabilities incurred by the Lender hereunder of any
kind whatsoever shall be deemed Advances made to the Borrower under this
Agreement and shall be secured by the Mortgage and the other Security Documents.
To the extent that any costs so paid or incurred by the Lender, together with
all other Advances made by the Lender hereunder, exceed the Construction Loan
Amount, the amount of such excess costs shall be added to the Construction Loan
Amount, and the Borrower's obligation to repay the same, together with interest
thereon at the Default Rate, shall be deemed to be evidenced by­ this
Agreement and secured by the Mortgage and the other Security Documents. In the
event the Lender takes possession of the Project and assumes control of such
construction as afore­said, it shall not be obligated to continue such
construction longer than it shall see fit and may
  48
  thereafter,
at any time, change any course of action undertaken by it or abandon such
construction and decline to make further payments for the account of the
Borrower whether or not the Project shall have been com­pleted. For the
purpose of this Section 15.03, the construction, equip­ping and completion
of the Project shall be deemed to include any action necessary to cure any Event
of Default by the Borrower under any of the terms and provisions of any of the
Loan Docu­ments.
 
 15.04
OTHER
REMEDIES
 
 If any
one or more of the Events of Default shall have occurred, and whether or not the
Lender shall have terminated its obligations to make Advances or accelerated the
maturity of the Construction Loan pursuant to Section 15.02, the Lender may
proceed to protect and enforce its rights and remedies under this Agreement, the
Construction Note or any of the other Loan Documents by suit in equity, action
at law or other appropriate proceeding, whether for the specific performance of
any covenant or agreement con­tained in this Agreement and the other Loan
Documents or any instrument pursuant to which the Obligations are evidenced,
including as permitted by applicable law the obtaining of the ex parte
appointment of a receiver, and, if any amount owed to the Lender shall have
become due, by declaration or otherwise, proceed to enforce the payment thereof
or any other legal or equitable right of the Lender. No remedy conferred upon
the Lender or the holder of the Note in this Agreement or in any of the other
Loan Documents is intended to be exclusive of any other remedy and each and
every remedy shall be cumulative and shall be in addition to every other legal
or equitable right of the Lender. No remedy conferred upon the Lender or the
holder of the Construction Note in this Agreement or in any of the other Loan
Documents is intended to be exclusive of any other remedy and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or thereunder or now or hereafter existing at law or in equity or by
statute or any other provision of law.
 
 
 15.05
RIGHTS AS TO
COLLATERAL
 
 Upon the
occurrence of an Event of Default and after any applicable grace period, and at
any time thereafter, in addition to other rights and remedies the Lender has
under this Agreement, the Lender may:
 
 15.05.1  Notify
account debtors at Borrower's expense, that the Collateral has been assigned to
Lender and that payments shall be made directly to Lender and upon request of
Lender, Borrower will so notify such account debtor that their accounts must be
paid to Lender.  This right may be exercised by the Lender at any
time, even prior to default.  Borrower will immediately upon receipt
of all checks, drafts, cash and other remittances deliver the same in kind to
the Lender. Lender shall have full power to collect, compromise, endorse, sell
or otherwise deal with the Collateral or proceeds thereof in its own name or in
the name of Borrower and Borrower hereby, for consideration paid, irrevocably
appoints the Lender its attorney-in-fact for this purpose.
 
 15.05.2                      Without
notice to Borrower, enter and take possession of all Collateral and the Project
on which they are now or hereafter located, including without limitation,
breaking the close and changing and replacing locks as may be required without
the same being considered as a trespass, as Borrower hereby expressly provides
authority for the same.  The Lender, at its sole discretion, may
operate and use Borrower's equipment, complete work in process and sell
inventory without being liable to the Borrower on account of any losses, damage
or depreciation that may occur as a result thereof so long as Lender shall act
reasonably and in good faith and may lease or license the Collateral to third
persons or entities for such purposes; and in any event, Lender may at its
option and without notice to Borrower, except as specifically herein provided,
sell, lease, assign and deliver, the whole or any part of the Collateral, or any
substitute therefore, or any addition thereto, at public or private sale, for
cash, upon credit, or for future delivery, at such prices and upon such terms as
Lender deems advisable, including without limitation the right to sell or lease
in conjunction with other property, real or personal, and allocate the sale
proceeds or leases among the items of property sold without the necessity of the
Collateral being present at any such sale, or in view of prospective purchasers
thereof.  Lender shall give Borrower timely notice by hand delivery to
Borrower or by United States mail, postage prepaid (in which event notice shall
be deemed to have been given when so deposited in the mail), at the address
specified herein, of the time and place of any public or private sale or other
disposition unless the Collateral is perishable, threatens to decline speedily
in value, or is the type customarily sold in a recognized
market.  Upon such sale, Lender may become the purchaser of the whole
or any part of the Collateral sold, discharged from all claims and free from any
right of redemption.  In case of any such sale by
  49
  Lender of
all or any of said Collateral on credit, or for future delivery, such property
so sold may be retained by Lender until the selling price is paid by the
purchaser.  The Lender shall incur no liability in case of the failure
of the purchaser to take up and pay for the Collateral so sold.  In
case of any such failure, the said Collateral may be again, from time-to-time,
sold.
 
 15.05.3.                      Continue
to occupy and use all premises which the Borrower now occupies or may hereafter
have or occupy, to the extent Borrower could legally do so, and may use all
trademarks, service marks, trade names, trade styles, logos, goodwill, trade
secrets, franchises, licenses and patents which the Borrower now has or may
hereafter acquire, including the following rights:
 
 (i)  the
rights in said marks, name, styles, logos and goodwill acquired by the common
law of the United States or of any state thereof or under the law of any foreign
nation, organization, or subdivision thereof;
 
 (ii)  the
rights acquired by registrations of said marks, names, styles, and logos under
the statute of any foreign country, or the United States, or any state or
subdivision thereof;
 
 (iii)  the
rights acquired in each and every form of said mark, name, style and logo as
used by the Borrower notwithstanding that less than all of such forms would be
registered and notwithstanding the form of said mark, name and
style;
 
 (iv)  the
right to use or license any party to the use of all or any of said marks, names,
styles, logos and goodwill in connection with the sale of goods and/or the
rendering of services in the conduct of services advertising, promotion and the
like anywhere in the world;
 
 (v)  the
right to use said marks, names, styles, logos and goodwill either in connection
with or entirely independent from the Collateral;
 
 (vi)  the
right to assign, transfer and convey a partial interest or the entire interest
in any one or more of said marks, names, styles or logos;
 
 (vii)  the
right to seek registration, foreign or domestic, of any of said marks, names,
styles or logos which was not registered as of the date hereof or registered
subsequently;
 
 (viii)  the
right to prosecute pending trademark applications for foreign or domestic
registration (federal or state) of any of said marks, names, styles or
logos.
 
 15.05.4                      Act
as attorney-in-fact for Borrower for the purposes herein described, and Borrower
does hereby make, constitute and appoint any officer or agent of Lender as
Borrower's true and lawful attorney-in-fact, with full power: to endorse the
name of Borrower or any of Borrower's officers or agents upon any assignments,
notes, checks, drafts, money orders, or other instruments of payment or
Collateral that may come into possession of Lender for purposes of such recovery
of accounts receivable monies; to sign and endorse the name of Borrower or any
of Borrower's officers or agents upon any negotiable instrument, invoice,
freight or express bill, bill of lading, storage or warehouse receipts, drafts,
assignments, verifications and notices in connection with accounts, and any
instruments or documents relating thereto or to Borrower's rights therein; to
give notice to the United States Post Office to effect changes of address so
that mail addressed to the Borrower may be permanently delivered directly to the
Lender for purposes of accepting same, and obtaining access to contents, in
order to take possession of such accounts receivable monies, and all other
collateral, with full power to do any and all things necessary to be done in and
about the premises as fully and effectually as Borrower might or could do; and
Borrower does hereby ratify all that Lender shall lawfully do, or cause to be
done by virtue hereof.
 
 15.05.5Make all
Obligations immediately due and payable, without presentment, demand, protest,
hearing or notice of any kind and exercise the remedies of a Lender afforded by
the Uniform Commercial Code and other applicable law or by the terms of any
agreement between Borrower and Lender.
  50
  15.05.6  In the case
of any sale or disposition of the Collateral, or the realization of funds
therefrom, the proceeds thereof shall first be applied to the payment of the
reasonable expenses of re-taking, maintaining, and foreclosure of Collateral,
and costs, fees and expenses of such sale, commissions, reasonable attorney's
fees and all charges paid or incurred by Lender pertaining to said sale,
including any taxes or other charges imposed by law upon the Collateral and/or
the owning, holding or transferring thereof; secondly, to pay, satisfy, and
discharge the Obligations secured hereby pro rata in accordance with the unpaid
amount thereof; and thirdly, to pay the surplus, if any, to Borrower, provided
that the time of any application of the proceeds shall be at the sole and
absolute discretion of the Lender.  To the extent such proceeds do not
satisfy the foregoing items, Borrower hereby promises and agrees to pay the
deficiency.
 
 15.05.7                      The
Lender and the holders of the Obligations may take or release other security,
may release any party primarily or secondarily liable for any of the
Obligations, may grant extensions, renewals or indulgences with respect to the
Obligations, or may apply to the Obligations the proceeds of the Collateral or
any amount received on account of the Collateral by the exercise of any right
permitted hereunder, without resorting or regard to other security or sources of
reimbursement.
 
 15.05.8                      Require
the Borrower to assemble the Collateral in a single location at a place to be
designated by Lender and make the Collateral at all times secure and available
to the Lender.
 
 15.05.9                      The
Lender shall hereby also be granted a security interest in, and right of set off
against any balance on any deposit, deposit account, agency, reserve, holdback,
or other account maintained by, or on behalf of, the Borrower with the Lender
and the Lender shall have the right to apply the proceeds of such foreclosure or
set off against such items of Borrowers' Obligations as Lender may
select.
 
 15.05.10                      All
rights and remedies of Lender whether provided for herein or in other
agreements, instruments, or documents, or conferred by law, are cumulative and
not alternative and may be enforced successively.
 
 15.05.11The parties agree
that in the event that a determination of Adequate Protection of Lender is
required under Section 362 or 363 of the Bankruptcy Reform Act of 1978 (Code),
its successor, or Bankruptcy Rules in connection therewith, that:
 
 A.  The
bargain of the parties at the time of lien creation hereunder in order to
provide the Lender with adequate protection to induce it to make the loan(s),
included stated ratios herein.
 
 B.  That
in the event of any proceeding under the Code, that the said ratio of the value
(as determined by the Lender in its sole discretion) Collateral secured to
Lender to the amount of the Obligation (“Collateral-To-Obligation Ratio”), must
be increased by an additional one hundred ten percent (110%) in order to
continue to provide minimum levels of Adequate Protection to Lender due to the
reduced expectation for present and future prospects of lien enforcement
resulting from the existence of proceedings under the Code.  This
agreed minimum increase in said ratio shall not act to bar Lender from
presenting evidence that even such increase is insufficient and leaves the
Lender without Adequate Protection, based upon the deteriorating nature or kind
of Collateral, wholly or in part, in any instance.
 
 C.  That
the parties agree that the costs of liquidating and collecting of Collateral, as
well as the potential for rapid Collateral deterioration if Borrower is, at any
time, subject to the Code, all require that the original
Collateral-To-Obligation Ratio be increased, as aforesaid, as a requirement of
minimum Adequate Protection, in addition to such other additional Adequate
Protection as may be required by the Lender.
 
 D.  The
parties agree that these covenants shall be conclusive evidence in any
proceeding to determine minimum Adequate Protection under the Code, as to the
intention and agreement of the parties at both this time, and at all times
hereinafter, until the Obligations to the Lender, are paid in full.
 
 51
  E.  That
these agreements may be submitted to the Court in any such proceeding, by the
Lender, in its sole and exclusive discretion, as conclusive evidence as to the
agreement of the parties at the time of such hearing, concerning minimum
Adequate Protection to be provided to the Lender at the time of
presentment.  PROVIDED, HOWEVER, that such submission shall not
constitute a waiver of any default or breach hereunder, or of any other
agreement by the Borrower to the Lender, but shall remain only as evidence for
the limited purposes stated herein.
 
 F.  PROVIDED,
FURTHER that at all times the Lender reserves, and does not waive Borrower's
obligation to provide Adequate Protection prior to the Borrower's use of "cash
collateral" as defined in Section 363 of the Code.
 
 15.05.12   The
Lender has no obligation to attempt to satisfy the Obligations by collecting
from any other Person liable for them and Lender may release, modify or waive
any Collateral provided by any other Person to secure any of the Obligations,
all without affecting Lender’s rights against Borrower.  Borrower
waives any right it may have to require Lender to pursue any third Person for
any of the Obligations.
 
 15.05.13Lender may
comply with any applicable state or federal law requirements in connection with
a disposition of the Collateral and compliance will not be considered adversely
to affect the commercial reasonableness of any sale of the
Collateral.
 
 15.05.14Lender may
sell the Collateral without giving any warranties as to the
Collateral.  The Lender may specifically disclaim any warranties of
title or the like.  This procedure will not be considered adversely to
affect, the commercial reasonableness of the sale of the
Collateral.
 
 15.05.15  If Lender
agrees with a purchaser to sell the Collateral upon credit, Borrower will be
credited only with payments actually made by the purchaser, received by Lender
and applied to the indebtedness of the purchaser.  In the event that
purchaser fails to pay for the Collateral, Lender may resell the Collateral and
Borrower shall be credited with the net proceeds of the sale.
 
 15.05.16  In the
event Lender purchases any of the Collateral being sold, Lender may pay for the
Collateral by crediting some or all of the Obligations of the
Borrower.
 
 15.05.17Lender has
no obligation to marshall any assets in favor of Borrower or in payment of any
of the Obligations or any other obligations owed to Lender by Borrower or any
other person.
 
 15.06DISTRIBUTION
OF COLLATERAL PROCEEDS
 
 In the
event that, following the occurrence or during the continuance of any Default or
Event of Default, the Lender receives any monies in connection with the
enforcement of any the Security Documents, or otherwise with respect to the
realization upon any of the Col­lateral, such monies shall be distributed
for application as follows:
 
 (a)
First, to the payment of, or (as the case may be) the reimbursement of the
Lender for or in respect of all reasonable costs, expenses, attorneys fees,
disbursements and losses which shall have been incurred or sustained by the
Lender in connection with the collection of such monies by the
Lender,  for the exercise, protection or enforcement by the Lender of
all or any of the rights, remedies, powers and privileges of the Lender under
this Agreement or any of the other Loan Documents or in respect of the
Collateral or in support of any provision of adequate indemnity to the Lender
against any taxes or liens which by law shall have, or may have, priority over
the rights of the Lender to such monies;
 
 (b)
Second, to all Obligations in such order or preference as the Lender may
determine in its sole discretion; provided, however, that the Lender may in its
discretion make proper allowance to take into account any Obligations not then
due and payable;
 
 52
  (c)
Third, upon payment and satisfaction in full or other provisions for payment in
full satisfactory to the Lender of all of the Obligations, to the payment of any
obligations required to be paid pursuant to Article IX of the Uniform Commercial
Code of the Commonwealth of Massa­chusetts; and
 
 (d)
Fourth, the excess, if any, shall be returned to the Borrower or to such other
Persons as are entitled thereto.
 
 15.07POWER OF
ATTORNEY
 
 For the
purposes of carrying out the provisions and exercising the rights, remedies,
powers and privileges granted by or referred to in this Section 15.07, the
Borrower hereby irrevocably constitutes and appoints the Lender its true and
lawful attorney-in-fact, with full power of substitution, to execute,
acknowledge and deliver any instruments and do and perform any acts which are
referred to in this Section 15.07, in the name and on behalf of the Borrower.
The power vested in such attor­ney-in-fact is, and shall be deemed to be,
coupled with an interest and irrevocable.
 
 15.08
WAIVERS
 
 The
Borrower hereby waives to the extent not prohibited by applicable law (a) all
presentments, demands for performance, notices of nonperformance (except to the
extent required by the provisions hereof or of any of the other Loan Documents),
protests and notices of dishonor, (b) any requirement of diligence or promptness
on the Lender's part in the enforce­ment of its rights (but not fulfillment
of its obligations) under the provisions of this Agreement or any of the other
Loan Docu­ments, and (c) any and all notices of every kind and description
which may be required to be given by any statute or rule of law and any defense
of any kind which the Borrower may now or here­ after have with respect to
its liability under this Agreement or under any of the other Loan
Documents.
 
 16.00           FINANCING  STATEMENTS
 
 Prior to
any Advance the Borrower hereby agrees to execute, deliver, and pay the cost of
filing any financing statement, or other notices appropriate under applicable
law, in respect of any security interest created pursuant to this Agreement or
at any other time which may at any time be required or which, in the opinion of
the Lender, may at any time be desirable.  In the event that any
re-recording or re-filing thereof (or the filing of any statements of
continuation or assignment of any financing statement) is required to protect
and preserve such lien or security interest, the Borrower shall, at its cost and
expense, cause the same to be re-recorded and/or re-filed at the time and in the
manner requested by the Lender.  The Borrower hereby irrevocably
designates the Lender, its agents, representatives and designees as agents and
attorneys-in-fact for the Borrower to sign such financing statements, or other
instruments in connection herewith, on behalf of the Borrower and file the same,
as required.
 
 17.00           FINANCIAL
COVENANTS
 
 17.01           COVENANTS AS TO
BORROWER
 
 Borrower, agrees to comply with the
following financial ratios the default of which shall constitute a default of
this Agreement:
 
 (a)
Maximum loan-to-value ratio shall at all times not be in excess of seventy
percent (70%).
 
 (b)
Commencing at 2010 fiscal year end, the Borrower will be tested for compliance
with the Debt Service Coverage Ratio which shall not be less than
1.15:1.00.
 
 
 18.00           TENURE
 
 Borrower's
liability under this Agreement shall commence with the date hereof and continue
in full force and effect and be binding upon Borrower until all Obligations
whether now in existence, or created hereinafter, shall
  53
  have been
fully paid and satisfied, and until so paid and satisfied, Lender shall be
entitled to retain the security interest granted hereby in all
Collateral.  At any time, either party may advise the other that no
further loans or advances are to be made, but such notice shall in no way cause
any and all obligations of the Borrower to Lender to be waived.
 
 19.00           SETOFF
 
 Regardless
of the adequacy of any Collateral, and at all times, any deposits (general or
specific, time or demand, provisional or final, regardless of currency,
maturity, or the branch of the Lender­ where such deposits are held) or
other sums credited by or due from the Lender to the Borrower and any securities
or other property of the Borrower in the possession of the Lender may be applied
to or set off against the payment of the Obligations and any and all other
liabilities, direct, or indirect, absolute or contingent, due or to become due,
now existing or hereafter arising, of the Borrower to the Lender.
 
 20.00           EXPENSES
 
 The
Borrower agrees to pay (a) the reasonable  costs of producing and
reproducing this Agreement, the other Loan Documents and the other agreements
and instruments mentioned herein, (b) any taxes (including any interest and
penalties in respect thereto) payable by the Lender (other than taxes based upon
the Lender's net income), including any recording, mortgage or intangibles taxes
in connection with the Mortgage, or other taxes payable on or with respect to
the transactions contemplated by this Agreement, including any taxes payable by
the Lender after the Closing Date (the Borrower hereby agreeing to indemnify the
Lender with respect thereto), (c) all title insurance premiums, and the
reasonable fees, expenses and dis­bursements of the Lender's counsel
or  any local counsel to the Lender incurred in connection with the
preparation, administra­tion or interpretation of the Loan Documents and
other instru­ments mentioned herein, the making of each Advance hereunder,
and amendments, modifications, approvals, consents or waivers hereto or
hereunder, (d) the fees, expenses and disbursements of the Lender incurred in
connection with the preparation, administra­tion or interpretation of the
Loan Documents and other instru­ments mentioned herein, and the making of
each Advance hereunder (including all fees paid to the Construction Inspector,
Appraisal fees, and surveyor fees) (e) all reasonable out-of-pocket
ex­penses (including reasonable attorneys' fees and costs, which attorneys
may be employees of the Lender and the fees and costs of consultants,
accountants, auctioneers, receivers, brokers, property managers, appraisers,
investment bankers or other experts retained by the Lender in connection with
(i) the en­forcement of or preservation of rights under any of the Loan
Documents against the Borrower or the Guarantor or the adminis­tration
thereof after the occurrence of a Default or Event of Default and (ii) any
litigation, proceeding or dispute whether arising hereunder or otherwise, in any
way related to the Lend­er's relationship with the Borrower or the
Guarantor, and (f) all reasonable fees, expenses and disbursements of the Lender
in­curred in connection with UCC searches, UCC filings, title rundowns,
title searches or mortgage recordings. The covenants of this Section 20.00 shall
survive payment or satisfaction of payment of all amounts owing with respect to
the Construction Note. The Lender shall act reasonably in incurring any costs
and expenses described in this Section 20.00 which are to be paid by the
Borrower.
 
 21.00           INDEMNIFICATION
 
 Except
for gross negligence committed by Lender, the Borrower  agrees to
indemnify and hold harmless the Lender from and against any and all claims,
actions and suits, whether groundless or otherwise, and from and against any and
all liabilities, losses, damages and expenses of­ every nature and character
arising out of this Agreement or any of the other Loan Documents or the
transactions contemplated hereby and thereby including, without limitations, (a)
any brokerage, leasing, finders or similar fees, (b) any disbursement of the
proceeds of any of the Advances, (c) any condition of the Project whether
related to the quality of construction or other­wise, (d) any actual or
proposed use by the Borrower of the proceeds of any of the Advances, (e) any
actual or alleged violation of any Requirements or Project Approvals, (f) the
Borrower entering into or performing this Agreement or any of the other Loan
Documents or (g) with respect to the Borrower and Guarantor, their respective
properties and assets, the violation of any Environmental Law, the Release or
threatened Release of any Hazardous Materials or any action, suit,
proceed­ing or investigation brought or threatened with respect to any
Hazardous Materials (including, but not limited to claims with respect to
wrongful death, personal injury or damage to proper­ty), in each case
including, without limitation, the reasonable fees and disbursements of counsel
and allocated costs of internal counsel incurred in connection with any such
investigation, litigation or other proceeding. In litigation, or the preparation
­therefore,
  54
  the
Lender shall be entitled to select its own counsel and, in addition to the
foregoing indemnity, the Borrower agrees to pay promptly the reasonable fees and
expenses of such counsel. The obligations of the Borrower under this Section
21.00 shall survive the repayment of the Construction Loan and shall continue in
full force and effect so long as the possibility of such claim, action or suit
exists. If, and to the extent that the obligations of the Borrower under this
Section 21.00 are unenforceable for any reason, the Borrower hereby agrees to
make the maximum contribution to the payment in satisfaction of such obligations
which is permissible under applicable law.
 
 22.00           LIABILITY OF THE
LENDER
 
 No
action shall be commenced by the Borrower or Guarantor for any claim against the
Lender under the terms of this Agreement unless written notice thereof,
specifically setting forth the claim of the Borrower, shall have been given to
the Lender at least fifteen (15) Business Days prior to the commencement of such
action.   The liability of the Lender to the Borrower and
Guarantor for any breach of the terms of this Agreement by the Lender shall not
exceed a sum equal to the amount which the Lender shall be determined to have
failed to Advance in consequence of a breach by the Lender of its obligations
under this Agreement, together with interest thereon at the rate payable by the
Borrower under the terms of the Note for Advances which the Borrower is to
receive hereunder, computed from the date when the Advance should have been made
by the Lender to the date when the Advance is, in fact, made by the Lender and
upon the making of any such payment by the Lender to the Borrower, the same
shall be treated as an Advance under this Agreement, in the same fashion as any
other Advance under the terms of this Agreement.  In no event shall
the Lender be liable to the Borrower and/or Guarantor, or anyone claiming by,
under or through the Borrower and/or Guarantor, for any special, exemplary,
punitive or consequential damages, whatever the nature­ of the breach of the
terms of this Agreement by the Lender, such damages and claims therefore being
expressly waived by the Bor­rower and Guarantor.
 
 23.00           RIGHTS OF THIRD
PARTIES
 
 All
conditions to the per­formance of the obligations of the Lender under this
Agreement, including the obligation to make Advances, are imposed solely and
exclusively for the benefit of the Lender and no other Person shall have
standing to require satisfaction of such conditions in accordance with their
terms or be entitled to assume that the Lender will refuse to make Advances in
the absence of strict compliance with any or all thereof and no other Person
shall, under any circumstances, be deemed to be a beneficiary of such
conditions, any and all of which may be freely waived in whole or in part by the
Lender at any time if in its sole discretion it deems it desirable to do so. In
particular, the Lender makes no representations and assumes no obligations as to
third parties concerning the quality of the construction by the Borrower of the
Improvements or the absence therefrom of defects.
 
 
 24.00           SURVIVAL OF COVENANTS,
ETC.
 
 All
covenants, agreements, representations  and warranties made
herein,  in the Construction Note, in any of the other Loan Documents
or in any documents or other papers delivered by or on behalf of the Borrower or
the Guarantor pursuant hereto and thereto shall be deemed to have been relied
upon by the Lender, notwithstanding any investigation heretofore or hereafter
made by it, and shall survive the making by the Lender of the Advances, as
herein contemplated, and shall continue in full force and effect so long as any
amount due under this Agreement or the Note or any of the other Loan Documents
remains outstanding or the Lender has any obligation to make any Advances. All
statements contained in any certificate or other paper delivered to the Lender
at any time by or on behalf of the Borrower or the Guarantor pursuant hereto or
in connection with the transac­tions contemplated hereby shall constitute
representations and warranties by the Borrower or the Guar­antor
hereunder.
 
 25.00           PARTICIPATION;
ETC.
 
 25.01    PARTICIPATIONS
 The
Lender may sell participations to one or more banks or other entities in all or
a portion of the Lender's rights and obligations under this Agreement and the
other Loan Documents; Provided that (a) any such sale or partic­ipation
shall not affect the rights and duties of the Lender hereunder to the Borrower
and (b) the only rights granted to the participant pursuant to such
participation arrangements with respect to waivers, amendments or modifications
of the Loan Documents shall be the right to approve waivers, amendments or
modifications that
  55
  would
reduce the principal of or the interest rate on the Construction Loan, extend
the term or increase the amount of the Construction Loan  or extend
any regularly scheduled payment date for principal or interest.
 
 25.02 PLEDGE BY THE
LENDER
 
 The
Lender may at any time pledge all or any portion of its interest and rights
under this Agreement (including all or any portion of the Note) to any of the
twelve Federal Reserve Banks organized under Section 4 of the Federal Reserve
Act, 12 U.S.C., § 341. No such pledge or the enforcement thereof shall release
the Lender from its obligations hereunder or under any of the other Loan
Documents.
 
 25.03
NO ASSIGNMENT BY THE
BORROWER
 
 The
Borrower shall not assign or transfer any of its rights or obligations under any
of the Loan Documents without the prior approval of the Lender.
 
 26.00
RELATIONSHIP
 
 The
relationship between the Lender and the Borrower is solely that of a lender and
borrower, and nothing contained herein or in any of the other Loan Documents
shall in any manner be construed as making the parties hereto partners, joint
venturers or any other relationship other than lender and borrower.
 
 27.00
NOTICES
 
 Each
notice, demand, election or request provided for or permitted to be given
pursuant to this Agreement (hereinafter in this Section 27.00 referred to as
"Notice”) must be in writing and shall be deemed to have been properly given or
served by personal delivery or by sending same by overnight courier or by
depositing same in the United States Mail, postpaid and registered or certified,
return receipt requested, and addressed as follows:


If to the
Lender:                                                  
Berkshire Bank
 31 Court Street
 Westfield, MA 01085
 
 Attn:  Shaun Dwyer, Vice
President
 
 with a
copy
to:                                                     Peter
W. Shrair, Esquire
 Cooley,
Shrair, P.C.
 1380 Main
Street
 Springfield,
Massachusetts 01103
 
 If to the
Borrower:                                               Tradeport
Development III, LLC
 204 West Newberry Road
 Bloomfield, CT 06002
 
 With a
copy
to:                                                    Thomas
M. Daniells, Esquire
 Murtha Cullina LLP
 CitiPlace 1
 185 Asylum Street
 Hartford, CT 06103
 
 If to
Guarantor:                                                     Griffin
Land & Nurseries, Inc.
 204 West Newberry Road
 Bloomfield, CT 06002
 
 With a
copy
to:                                                  
Thomas M. Daniells, Esquire
 Murtha Cullina LLP
 CitiPlace 1
  56
 185 Asylum Street
 Hartford, CT 06103
 
 
 Each
Notice shall be effective upon being personally delivered or upon being sent by
overnight courier or upon being deposited in the United States Mail as
aforesaid. The time period in which a response to such Notice must be given or
any action taken with respect thereto (if any), however, shall commence to run
from the date of receipt if personally delivered or sent by overnight courier,
or if so deposited in the United States Mail, the earlier of three (3) Business
Days following such deposit or the date of receipt as disclosed on the return
receipt. Rejection or other refusal to accept or the inability to deliver
because of changed address for which no Notice was given shall be deemed to be
receipt of the Notice sent. By giving at least thirty (30) days prior Notice
thereof, the Borrower or the Lender shall have the right from time to time and
at any time during the term of this Agreement to change their respective
addresses and each shall have the right to specify as its address any other
address within the United States of America.
  28.00
GOVERNING
LAW
 
 This
Agreement and each of the other Loan Documents, except as otherwise specifically
provided there­ in, are contracts under the laws of the Commonwealth of
Massa­chusetts and shall for all purposes be construed in accordance with
and governed by the laws of said Commonwealth (excluding the laws applicable to
conflicts or choice of law).
 
 29.00
CONSENT TO
JURISDICTION
 
 THE
BORROWER AND GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO
PERSONAL JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS OVER ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS, AND (B) WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAWS OF ANY
STATE (I) TO THE RIGHT, IF ANY, TO TRIAL BY JURY, (II) TO OBJECT TO JURISDICTION
WITHIN THE COMMONWEALTH OF MASSACHUSETTS OR VENUE IN ANY PARTICULAR FORUM WITHIN
THE COMMONWEALTH OF MASSACHUSETTS, AND (III) TO THE RIGHT, IF ANY, TO CLAIM OR
RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES
OTHER THAN ACTUAL DAMAGES.  THE BORROWER AGREES THAT, IN ADDITION TO
ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE
OF PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE MADE BY CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED DIRECTED TO THE BORROWER AT THE
ADDRESS SET FORTH IN SECTION 27.00 ABOVE, AND SERVICE SO MADE SHALL BE COMPLETE
FIVE (5) DAYS AFTER THE SAME SHALL BE SO MAILED. NOTHING CONTAINED HEREIN,
HOWEVER, SHALL PREVENT THE LENDER FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
OR EXERCISING ANY RIGHTS AGAINST ANY COLLATERAL AND AGAINST THE BORROWER, AND
AGAINST ANY PROPERTY OF THE BORROWER, IN ANY OTHER STATE. INITIATING SUCH SUIT,
ACTION OR PROCEEDING OR TAKING SUCH ACTION IN ANY STATE SHALL IN NO EVENT
CONSTITUTE A WAIVER OF THE AGREEMENT CONTAINED HEREIN THAT THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS SHALL GOVERN THE RIGHTS AND OBLIGATIONS OF THE
BORROWER AND THE LENDER HEREUNDER OR THE SUBMISSION HEREIN BY THE BORROWER TO
PERSONAL JURISDICTION WITHIN THE COMMONWEALTH OF MASSACHUSETTS.
 
 30.00
HEADINGS
 The
captions in this Agreement are for convenience of reference only and shall not
define or limit the provisions hereof.
 
 31.00
COUNTERPARTS
 This
Agreement and any amendment hereof may be executed in several counterparts and
by each party on a separate counterpart, each of which when so executed and
deliv­ered shall be an original, and all of which together
  57
  shall
constitute one instrument. In proving this Agreement it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom enforcement is sought.
 
 32.00
ENTIRE AGREEMENT,
ETC.
 The Loan
Documents and any other documents executed in connection herewith or therewith
express the entire understanding of the parties with respect to the transactions
contemplated hereby. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except as provided in Section
33.00.
 
 33.00
CONSENTS, AMENDMENTS,
WAIVERS, ETC.
 
 Except as
otherwise expressly set forth in any particular provision of this Agreement, any
consent or approval required or permitted by this Agreement to be given by the
Lender may be given, and any term of this Agreement or of any other instrument
related hereto or mentioned herein may be amended, and the performance or
observance by the Borrower of any terms of this Agreement or such other
instrument or the continuance of any Default or Event of Default may be waived
(either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Lender. No waiver
shall extend to or affect any obligation not expressly waived or impair any
right consequent thereon. No course of dealing or delay or omission on the part
of the Lender in exercising any right shall operate as a waiver thereof or
otherwise be prejudicial thereto. No Advance made by the lender hereunder during
the continuance of any Default or Event of Default shall constitute a waiver
there­ of. No notice to or demand upon the Borrower shall entitle the
Borrower to other or further notice or demand in similar or other
circumstances.
 
 34.00
TIME OF THE
ESSENCE
 
 Time is
of the essence with respect to each and every covenant, agreement and obligation
of the Borrower under this Agreement and the other Loan Documents and the
Guarantor.
 
 35.00
SEVERABILITY
 
 The
provisions of this Agreement are severable, and if any one clause or provision
hereof shall be­ held invalid or unenforceable in whole or in part in any
juris­diction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such juris­diction, and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Agreement in any
jurisdiction.
 
 IN
WITNESS WHEREOF, the undersigned have duly executed this Agreement as a sealed
instrument as of the date first set forth above.
 
 
 
 [THE
REMAINDER OF THIS PAGE INTENTIONALLY ENDS HERE;
 SIGNATURE
PAGE TO FOLLOW]
  58
 BORROWER:
                
                TRADEPORT
      DEVELOPMENT III, LLC BYGRIFFIN
      LAND & NURSERIES, INC.,ITS
      SOLE MEMBER/s/Thomas
      M. Daniels
                
                By:/s/Frederick M.
      DanzigerWitness
                
                Its
      duly authorized/s/Thomas
      M. LescalleetWitness­GUARANTOR:
                
                GRIFFIN
      LAND & NURSERIES, INC./s/Thomas
      M. Daniels
                
                By:/s/Frederick M.
      DanzigerWitness
                
                Its
      duly authorized/s/Thomas
      M. LescalleetWitnessLENDER:
                
                BERKSHIRE
      BANK/s/Peter Shrair
                
                By:/s/Joseph
    MarulloWitness
                
                Its
      duly authorized/s/Candace GoodreauWitness






59