**Exhibit 10.30**

 

**PROMISSORY NOTE**

 
| U.S. $12,700,000.00 | ** ** | **July 6, 2005** |
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FOR VALUE RECEIVED, andat the times hereinafter specified, TRADEPORT DEVELOPMENT II, LLC, aConnecticut limited liability company (“Maker”), whose address is 204 WestNewberry Road, Bloomfield, Connecticut 06002–1308, hereby promises to pay tothe order of FIRST SUNAMERICA LIFE INSURANCE COMPANY, a New York corporation(hereinafter referred to, together with each subsequent holder hereof, as “Holder”),at c/o AIG Global Investment Corp., 1 SunAmerica Center, 38thFloor, Century City, Los Angeles, California 90067-6022, or atsuch other address as may be designated from time to time hereafter by anyHolder, the principal sum of TWELVE MILLION SEVEN HUNDRED THOUSAND ANDNO/100THS DOLLARS ($12,700,000.00), together with interest on the principalbalance outstanding from time to time, as hereinafter provided, in lawful moneyof the United States of America.

 

By its execution anddelivery of this promissory note (this “Note”), Maker covenants and agrees asfollows:

 

1.             Interest Rate andPayments.

 

(a)           The balance ofprincipal outstanding from time to time under this Note shall bear interest atthe rate of five and forty–six one hundredths percent (5.46%) per annum (the “OriginalInterest Rate”), based on a three hundred sixty (360) day year composed oftwelve (12) months of thirty (30) days each; however, interest for partialmonths shall be calculated by multiplying the principal balance of this Note bythe applicable interest rate (i.e., the Original Interest Rate or the New Rate(hereinafter defined)), dividing the product by three hundred sixty (360), andmultiplying that result by the actual number of days elapsed.

 

(b)           Interest only shall bepayable on the date the loan evidenced by this Note (the “Loan”) is funded byHolder, in advance, for the period from and including the date of fundingthrough and including July 31, 2005.

 

(c)           Commencing on September 1,2005 and on the first day of each month thereafter through and including July 1,2015 combined payments of principal and interest shall be payable, in arrears,in the amount of $71,790.80 each (such amount representing an amount sufficientto fully amortize the original principal amount of this Note over a threehundred sixty (360) month period (the “Amortization Period”)).

 

(d)           The entire outstandingprincipal balance of this Note, together with all accrued and unpaid interestand all other sums due hereunder, shall be due and payable in full on August 1,2015 (the “Original Maturity Date”).

 

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2.             Holder’s ExtensionOption; Net Operating Income.

 

(a)           If Maker shall fail topay the outstanding principal balance of this Note and all accrued interest andother charges due hereon at the Original Maturity Date, Holder shall have theright, at Holder’s sole option and discretion, to extend the term of the Loanfor an additional period of five (5) years (the “Extension Term”).  If Holder elects to extend the term of theLoan, Maker shall pay all fees of Holder incurred in connection with such extension,including, but not limited to, attorneys’ fees and title insurancepremiums.  Maker shall execute alldocuments reasonably requested by Holder to evidence and secure the Loan, asextended, and shall obtain and provide to Holder any title insurance policy orendorsement requested by Holder.

 

(b)           Should Holder elect toextend the term of the Loan as provided above, Holder shall (i) reset theinterest rate borne by the then-existing principal balance of the Loan to arate per annum (the “New Rate”) equal to the greater of (A) the OriginalInterest Rate, or (B) Holder’s (or comparable lenders’, if Holder is nolonger making such loans) then-prevailing interest rate for five (5) year loanssecured by properties similar to the Property (hereinafter defined), asdetermined by Holder in its sole discretion; (ii) re-amortize the then-existingprincipal balance of the Loan over the remaining portion of the AmortizationPeriod (the “New Amortization Period”); (iii) have the right to requireMaker to enter into modifications of the non-economic terms of the LoanDocuments as Holder may request (the “Non-Economic Modifications”); and(iv) notwithstanding any provision set forth in the Loan Documents to thecontrary, have the right to require Maker to make monthly payments into escrowfor insurance premiums and real property taxes, assessments and similargovernmental charges.  Hence, monthlyprincipal and interest payments during the Extension Term shall be based uponthe New Rate, and calculated to fully amortize the outstanding principalbalance of the Loan over the New Amortization Period.

 

(c)           If Holder elects toextend the term of the Loan, Holder shall advise Maker of the New Rate withinfifteen (15) days following the Original Maturity Date.

 

(d)           In addition to therequired monthly payments of principal and interest set forth above, commencingon the first day of the second month following the Original Maturity Date andcontinuing on the first day of each month thereafter during the Extension Term(each an “Additional Payment Date”), Maker shall make monthly payments toHolder in an amount equal to all Net Operating Income (hereinafter defined)attributable to the Property for the calendar month ending on the last day ofthe month that is two months preceding each such Additional Payment Date.  For example, assuming the Original MaturityDate is January 1, then Net Operating Income for the period from January 1through January 31 shall be payable to Holder on March 1; NetOperating Income for the period from February 1 through February 28shall be payable to Holder on April 1, and so on.

 

(e)           Holder shall depositall such Net Operating Income received from Maker into an account or accountsmaintained at a financial institution chosen by Holder or its servicer in itssole discretion (the “Deposit Account”) and all such funds shall be invested ina manner acceptable to Holder in its sole discretion.  All interest, dividends and earnings creditedto the Deposit Account shall be held and applied in accordance with the termshereof.

 

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(f)            On the thirdAdditional Payment Date and on each third Additional Payment Date thereafter,Holder shall apply all Excess Funds (hereinafter defined), if any, toprepayment of amounts due under this Note, without premium or penalty.

 

(g)           As security for therepayment of the Loan and the performance of all other obligations of Makerunder the Loan Documents, Maker hereby assigns, pledges, conveys, delivers,transfers and grants to Holder a first priority security interest in and to:  all Maker’s right, title and interest in andto the Deposit Account; all rights to payment from the Deposit Account and themoney deposited therein or credited thereto (whether then due or in the futuredue and whether then or in the future on deposit); all interest thereon; anycertificates, instruments and securities, if any, representing the DepositAccount; all claims, demands, general intangibles, choses in action and otherrights or interests of Maker in respect of the Deposit Account; any monies thenor at any time thereafter deposited therein; any increases, renewals,extensions, substitutions and replacements thereof; and all proceeds of theforegoing.

 

(h)           From time to time, butnot more frequently than monthly, Maker may request a disbursement (a “Disbursement”)from the Deposit Account for capital expenses, tenant improvement expenses,leasing commissions and special contingency expenses.  Holder may consent to or deny any suchDisbursement in its sole discretion.

 

(i)            Upon the occurrence ofany Event of Default (hereinafter defined) (i) Maker shall not be entitledto any further Disbursement from the Deposit Account; and (ii) Holdershall be entitled to take immediate possession and control of the DepositAccount (and all funds contained therein) and to pursue all of its rights andremedies available to Holder under the Loan Documents, at law and in equity.

 

(j)            All of the terms andconditions of the Loan shall apply during the Extension Term, except asexpressly set forth above, and except that no further extensions of the Loanshall be permitted.

 

(k)           For the purposes of theforegoing:

 

(i)            “Excess Funds” shallmean, on any Additional Payment Date, the amount of funds then existing in theDeposit Account (including any Net Operating Income due on the applicableAdditional Payment Date), less an amount equal to the sum of three regularlyscheduled payments of principal and interest due on this Note;

 

(ii)           “Net Operating Income”shall mean, for any particular period of time, Gross Revenue for the relevantperiod, less Operating Expenses for the relevant period; provided, however,that if such amount is equal to or less than zero (0), Net Operating Incomeshall equal zero (0);

 

(iii)          “Gross Revenue” shallmean all payments and other revenues (exclusive, however, of any paymentsattributable to sales taxes) received by or on behalf of Maker from all sourcesrelated to the ownership or operation of the Property, including, but notlimited to, rents, room charges, parking fees, interest, security deposits (unlessrequired to be held in a segregated account), business interruption insurance

 

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proceeds,operating expense pass-through revenues and common area maintenance charges,for the relevant period for which the calculation of Gross Revenue is beingmade; and

 

(iv)          “Operating Expenses”shall mean the sum of all ordinary and necessary operating expenses actuallypaid by Maker in connection with the operation of the Property during therelevant period for which the calculation of Operating Expenses is being made,including, but not limited to, (a) payments made by Maker for taxes andinsurance required under the Loan Documents, and (b) monthly debt servicepayments as required under this Note.

 

3.             Budgets DuringExtension Term.

 

(a)           Within fifteen (15)days following the Original Maturity Date and on or before December 1 ofeach subsequent calendar year, Maker shall deliver to Holder a proposed revenueand expense budget for the Property for the remainder of the calendar year inwhich the Original Maturity Date occurs or the immediately succeeding calendaryear (as applicable).  Such budget shallset forth Maker’s projection of Gross Revenue and Operating Expenses for theapplicable calendar year, which shall be subject to Holder’s reasonableapproval.  Once a proposed budget hasbeen reviewed and approved by Holder, and Maker has made all revisionsrequested by Holder, if any, the revised budget shall be delivered to Holderand shall thereafter become the budget for the Property hereunder (the “Budget”)for the applicable calendar year.  IfMaker and Holder are unable to agree upon a Budget for any calendar year, thebudgeted Operating Expenses (excluding extraordinary items) provided in theBudget for the Property for the preceding calendar year shall be considered theBudget for the Property for the subject calendar year until Maker and Holderagree upon a new Budget for such calendar year.

 

(b)           During the ExtensionTerm, Maker shall operate the Property in accordance with the Budget for theapplicable calendar year, and the total of expenditures relating to theProperty exceeding one hundred and five percent (105%) of the aggregate of suchexpenses set forth in the Budget for the applicable time period shall not betreated as Operating Expenses for the purposes of calculating “Net OperatingIncome,” without the prior written consent of Holder except for emergencyexpenditures which, in the Maker’s good faith judgment, are reasonablynecessary to protect, or avoid immediate danger to, life or property.

 

4.             Reports DuringExtension Term.

 

(a)           During the ExtensionTerm, Maker shall deliver to Holder all financial statements reasonablyrequired by Holder to calculate Net Operating Income, including, withoutlimitation, a monthly statement to be delivered to Holder concurrently withMaker’s payment of Net Operating Income that sets forth the amount of NetOperating Income accompanying such statement and Maker’s calculation of NetOperating Income for the relevant calendar month.  Such statements shall be certified by an executiveofficer of Maker or Maker’s manager, managing member or general partner (asapplicable) as having been prepared in accordance with the terms hereof and tobe true, accurate and complete in all material respects.

 

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(b)           In addition, on orbefore February 1 of each calendar year during the Extension Term, Makershall submit to Holder an annual income and expense statement for the Propertywhich shall include the calculation of Gross Revenue, Operating Expenses andNet Operating Income for the preceding calendar year and shall be accompaniedby Maker’s reconciliation of any difference between the actual aggregate amountof the Net Operating Income for such calendar year and the aggregate amount ofNet Operating Income for such calendar year actually remitted to Holder.  All such statements shall be certified by anexecutive officer of Maker or Maker’s manager, managing member or generalpartner (as applicable) as having been prepared in accordance with the termshereof and to be true, accurate and complete in all material respects.  If any such annual financial statementdiscloses any inconsistency between the calculation of Net Operating Income andthe amount of Net Operating Income actually remitted to Holder, Maker shallimmediately remit to Holder the amount of any underpayment of Net OperatingIncome for such calendar year or, in the event of an overpayment by Maker, suchamount may be withheld from any subsequent payment of Net Operating Incomerequired hereunder.

 

(c)           Holder may notify Makerwithin ninety (90) days after receipt of any statement or report requiredhereunder that Holder disputes any computation or item contained in any portionof such statement or report.  If Holderso notifies Maker, Holder and Maker shall meet in good faith within twenty (20)days after Holder’s notice to Maker to resolve such disputed items.  If, despite such good faith efforts, theparties are unable to resolve the dispute at such meeting or within ten (10)days thereafter, the items shall be resolved by an independent certified publicaccountant designated by Holder within fifteen (15) days after such ten (10)day period.  The determination of suchaccountant shall be final.  All fees ofsuch accountant shall be paid by Maker. Maker shall remit to Holder any additional amount of Net OperatingIncome found to be due for such periods within ten (10) days after theresolution of such dispute by the parties or the accountant’s determination, asapplicable.  The amount of anyoverpayment found to have been made for such periods may be withheld from anyrequired future remittance of Net Operating Income.

 

(d)           Maker shall at alltimes keep and maintain full and accurate books of account and recordsadequate to reflect correctly all items required in order to calculate NetOperating Income.

 

5.             Prepayment.

 

(a)           During the first five(5) years after the date of this Note, Maker shall have no right to prepay allor any part of this Note.

 

(b)           At any time after thefifth (5th) anniversary of the date of this Note, Maker shall havethe right to prepay the full principal amount of this Note and all accrued butunpaid interest hereon as of the date of prepayment, provided that(i) Maker gives not less than thirty (30) days’ prior written notice toHolder of Maker’s election to prepay this Note, and (ii) Maker pays aprepayment premium to Holder equal to the greater of (A) one percent (1%)of the outstanding principal amount of this Note or (B) the Present Valueof this Note (hereinafter defined), less the amount of principal being prepaid,calculated as of the prepayment date.

 

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(c)           Holder shall notifyMaker of the amount and basis of determination of the prepayment premium.  Holder shall not be obligated to accept anyprepayment of the principal balance of this Note unless such prepayment isaccompanied by the applicable prepayment premium and all accrued interest andother sums due under this Note.  Makermay not prepay the Loan on a Friday or on any day preceding a public holiday,or the equivalent for banks generally under the laws of the State in which theProperty is located (the “State”).

 

(d)           Except for makingpayments of Net Operating Income as required above, and except for theapplication of insurance proceeds or condemnation awards to the principalbalance of this Note, as provided in the Mortgage (hereinafter defined), in noevent shall Maker be permitted to make any partial prepayments of this Note.

 

(e)           If Holder acceleratesthis Note for any reason, then in addition to Maker’s obligation to pay thethen outstanding principal balance of this Note and all accrued but unpaidinterest thereon, Maker shall pay an additional amount equal to the prepaymentpremium that would be due to Holder if Maker were voluntarily prepaying thisNote at the time that such acceleration occurred, or if under the terms hereofno voluntary prepayment would be permissible on the date of such acceleration,Maker shall pay a prepayment premium calculated as set forth in the Mortgage.

 

(f)            For the purposes ofthe foregoing:

 

(i)            The “Present Value ofthis Note” with respect to any prepayment of this Note, as of any date, shallbe determined by discounting all scheduled payments of principal and interestremaining to maturity of this Note, attributed to the amount being prepaid, atthe Discount Rate.  If prepayment occurson a date other than a regularly scheduled payment date, the actual number ofdays remaining from the prepayment date to the next regularly scheduled paymentdate will be used to discount within such period;

 

(ii)           The “Discount Rate” isthe rate which, when compounded monthly, is equivalent to the Treasury Rate,when compounded semi-annually;

 

(iii)          The “Treasury Rate” isthe semi-annual yield on the Treasury Constant Maturity Series with maturityequal to the remaining weighted average life of this Note, for the week priorto the prepayment date, as reported in Federal Reserve StatisticalRelease H.15 - Selected Interest Rates, conclusively determined byHolder on the prepayment date.  The ratewill be determined by linear interpolation between the yields reported inRelease H.15, if necessary.  In theevent Release H.15 is no longer published, Holder shall select acomparable publication to determine the Treasury Rate.

 

(g)           Holder shall not beobligated actually to reinvest the amount prepaid in any treasury obligationsas a condition precedent to receiving any prepayment premium.

 

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(h)           Notwithstanding theforegoing, (i) at any time during the Extension Term, Maker shall have theright to prepay the full principal amount of this Note and all accrued butunpaid interest thereon as of the date of prepayment, without prepaymentpremium thereon, and (ii) no prepayment premium shall be due in connectionwith the application of any insurance proceeds or condemnation awards to the principalbalance of this Note, as provided in the Mortgage.

 

6.             Payments.  Whenever any payment to be made under thisNote shall be stated to be due on a Saturday, Sunday or public holiday or theequivalent for banks generally under the laws of the State (any other day beinga “Business Day”), such payment may be made on the next succeeding BusinessDay.

 

7.             Default Rate.

 

(a)           The entire balance ofprincipal, interest, and other sums due upon the maturity hereof, byacceleration or otherwise, shall bear interest from the date due until paid atthe greater of (i) eighteen percent (18%) per annum and (ii) aper annum rate equal to five percent (5%) over the prime rate (forcorporate loans at large United States money center commercial banks)published in *The Wall Street Journal* on thefirst business day of each month (the “Default Rate”); provided, however, thatsuch rate shall not exceed the maximum permitted by applicable state or federallaw.  In the event *The WallStreet Journal*is no longer published or no longer publishes suchprime rate, Holder shall select a comparable reference.

 

(b)           If any payment underthis Note is not made when due, interest shall accrue at the Default Rate fromthe date such payment was due until payment is actually made.

 

8.             Late Charges.  In addition to interest as set forth herein,Maker shall pay to Holder a late charge equal to four percent (4%) of anyamounts due under this Note in the event any such amount is not paid when due.  Notwithstanding the foregoing, Maker shall bepermitted to make one such payment within five (5) days following its due datein any consecutive twelve-month period without incurring a late charge.

 

9.             Application ofPayments.  All payments hereundershall be applied first to the payment of late charges, if any, then to thepayment of prepayment premiums, if any, then to the repayment of any sumsadvanced by Holder for the payment of any insurance premiums, taxes,assessments, or other charges against the property securing this Note (togetherwith interest thereon at the Default Rate from the date of advance untilrepaid), then to the payment of accrued and unpaid interest, and then to thereduction of principal.

 

10.           ImmediatelyAvailable Funds.  Payments under thisNote shall be payable in immediately available funds without setoff,counterclaim or deduction of any kind, and shall be made by electronic fundstransfer from a bank account established and maintained by Maker for suchpurpose.

 

11.           Security.  This Note is secured by a Mortgage Deed,Security Agreement, Fixture Filing, Financing Statement and Assignment ofLeases and Rents of even date herewith granted by Maker for the benefit of thenamed Holder hereof (the “Mortgage”) encumbering

 

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certainreal property and improvements thereon commonly known as 75 International Driveand 758 Rainbow Road, Windsor, Connecticut as more particularly described insuch Mortgage (the “Property”).

 

12.           Certain Definitions.  Capitalized terms used herein and nototherwise defined shall have the meanings set forth in the Mortgage.

 

13.           Event of Default.  Each of the following events will constitutean event of default (an “Event of Default”) under this Note and under theMortgage and each other Loan Document, and any Event of Default under any LoanDocument shall constitute an Event of Default hereunder and under each of theother Loan Documents:

 

(a)           any failure to pay whendue any sum hereunder;

 

(b)           any failure of Maker toproperly perform any obligation contained herein or in any of the other LoanDocuments (other than the obligation to make payments under this Note or theother Loan Documents) and the continuance of such failure for a period of ten(10) days following written notice thereof from Holder to Maker; provided,however, that if such failure is not curable within such ten (10) day period,then, so long as Maker commences to cure such failure within such ten (10) dayperiod and is continually and diligently attempting to cure to completion, suchfailure shall not be an Event of Default unless such failure remains uncuredfor thirty (30) days after such written notice to Maker; or

 

(c)           if, at any time duringthe Extension Term, Gross Revenue for any calendar month shall be less thanninety-three percent (93%) of the amount of projected Gross Revenue for suchmonth set forth in the applicable Budget.

 

14.           Acceleration.  Upon the occurrence of any Event of Default,the entire balance of principal, accrued interest, and other sums owinghereunder shall, at the option of Holder, become at once due and payablewithout notice or demand.  Upon theoccurrence of an Event of Default described in Section 13(c) hereof,Holder shall have the option, in its sole discretion, to either(a) exercise any remedies available to it under the Loan Documents, at lawor in equity, or (b) require Maker to submit a new proposed budget forHolder’s approval.  If Holder agrees toaccept such new proposed budget, then such budget shall become the Budget forall purposes hereunder.

 

15.           Conditions Precedent.  Maker hereby certifies and declares that allacts, conditions and things required to be done and performed and to havehappened precedent to the creation and issuance of this Note, and to constitutethis Note the legal, valid and binding obligation of Maker, enforceable inaccordance with the terms hereof, have been done and performed and happened indue and strict compliance with all applicable laws.

 

16.           Certain Waivers andConsents.  Maker and all parties nowor hereafter liable for the payment hereof, primarily or secondarily, directlyor indirectly, and whether as endorser, guarantor, surety, or otherwise, herebyseverally (a) waive presentment, demand, protest, notice of protest and/ordishonor, and all other demands or notices of any sort whatever with respect tothis Note, (b) consent to impairment or release of collateral, extensionsof time for payment, and acceptance of partial payments before, at, or aftermaturity, (c) waive any right

 

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torequire Holder to proceed against any security for this Note before proceedinghereunder, (d) waive diligence in the collection of this Note or in filingsuit on this Note, and (e) agree to pay all costs and expenses, includingreasonable attorneys’ fees, which may be incurred in the collection of thisNote or any part thereof or in preserving, securing possession of, andrealizing upon any security for this Note.

 

17.           Usury Savings Clause.  The provisions of this Note and of allagreements between Maker and Holder are, whether now existing or hereinaftermade, hereby expressly limited so that in no contingency or event whatever,whether by reason of acceleration of the maturity hereof, prepayment, demandfor payment or otherwise, shall the amount paid, or agreed to be paid, toHolder for the use, forbearance, or detention of the principal hereof orinterest hereon, which remains unpaid from time to time, exceed the maximumamount permissible under applicable law, it particularly being the intention ofthe parties hereto to conform strictly to the laws of the State and Federallaw, whichever is applicable.  If fromany circumstance whatever, the performance or fulfillment of any provisionhereof or of any other agreement between Maker and Holder shall, at the timeperformance or fulfillment of such provision is due, involve or purport torequire any payment in excess of the limits prescribed by law, then theobligation to be performed or fulfilled is hereby reduced to the limit of suchvalidity, and if from any circumstance whatever Holder should ever receive asinterest an amount which would exceed the highest lawful rate, the amount whichwould be excessive interest shall be applied to the reduction of the principalbalance owing hereunder (or, at Holder’s option, be paid over to Maker) andshall not be counted as interest.  To theextent permitted by applicable law, determination of the legal maximum amountof interest shall at all times be made by amortizing, prorating, allocating andspreading in equal parts during the period of the full stated term of thisNote, all interest at any time contracted for, charged, or received from Makerin connection with this Note and all other agreements between Maker and Holder,so that the actual rate of interest on account of the indebtedness representedby this Note is uniform throughout the term hereof.

 

18.           Non-Recourse;Exceptions to Non-Recourse.  Nothingcontained in this Note or any of the other Loan Documents shall be deemed toimpair or limit Holder’s rights:  inforeclosure proceedings or in any ancillary proceedings brought to facilitateHolder’s foreclosure on the Property or any portion thereof or to exercise anyspecific rights or remedies afforded Holder under any other provisions of theLoan Documents or by law or in equity, subject to the non-recourse provisionsset forth below; to recover in accordance with the terms of any guarantee givenin connection with the Loan; or to pursue any personal liability of Maker orany Guarantor under the Environmental Indemnity Agreement or Section 5.10of the Mortgage.  Except as expressly setforth in this Section 18, the recourse of Holder with respect to theobligations evidenced by the Loan Documents shall be solely to the Property,Chattels and Intangible Personalty (as defined in the Mortgage) and any othercollateral given as security for the Loan:

 

(a)           Notwithstandinganything to the contrary contained in this Note or in any Loan Document,nothing shall be deemed in any way to impair, limit or prejudice the rights ofHolder to collect or recover from Maker and Guarantor (as defined in theMortgage):  (i) damages or costs(including without limitation reasonable attorneys’ fees) incurred by Holder asa result of waste by Maker; (ii) any condemnation or insurance proceedsattributable to the Property which were not paid to Holder or used to restorethe Property in accordance with the

 

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termsof the Mortgage; (iii) any rents, profits, advances, rebates, prepaidrents or other similar sums attributable to the Property collected by or forMaker following an Event of Default (as defined in the Mortgage) and not properlyapplied to the reasonable fixed and operating expenses of the Property,including payments of this Note and other sums due under the Loan Documents;(iv) any security deposits collected by or for Borrower and not applied inaccordance with applicable leases; (v) the amount of any accrued taxes,assessments, and/or utility charges affecting the Property (whether or not thesame have been billed to Maker) that are either unpaid by Maker or advanced byHolder under the Mortgage, but excluding any amounts then in escrow with Holderfor any such taxes or assessments; provided, however, that Maker shall not beobligated for those taxes, assessments and/or utility charges accruing afterthe date that is the earlier of (A) Maker’s tender of a deed–in–lieu of foreclosureto Holder, subject to no title exceptions other than the Permitted Exceptionsor those otherwise acceptable to Holder in its sole discretion (provided theProperty is free of any environmental contamination), or (B) the dateHolder takes title to the Property in connection with the foreclosure of theMortgage; (vi) any sums expended by Holder in fulfilling the obligationsof Maker, as lessor, under any leases affecting the Property; provided,however, that Maker shall not be obligated for those sums expended by Holder infulfilling the obligations of Maker accruing after the date that is the earlierof (A) Maker’s tender of a deed–in–lieu of foreclosure to Holder, subjectto no title exceptions other than the Permitted Exceptions or those otherwiseacceptable to Holder in its sole discretion (provided the Property is free ofany environmental contamination), or (B) the date Holder takes title tothe Property in connection with the foreclosure of the Mortgage; (vii) theamount of any loss suffered by Holder (that would otherwise be covered byinsurance) as a result of Maker’s failure to maintain the insurance requiredunder the terms of any Loan Document; (viii) damages or costs (includingwithout limitation reasonable attorneys’ fees) incurred by Holder as a resultof the Property, or any part thereof or any interest therein, or any interestin Maker, being further encumbered by a voluntary lien securing any obligationupon which Maker, any direct or indirect general partner, manager or managing memberof Maker, any guarantor of the Loan, or any principal or affiliate of Makershall be personally liable for repayment, either as obligor or guarantor;(ix) damages or costs (including without limitation reasonable attorneys’fees) incurred by Holder as a result of any breach or violation of Section 5.4,5.5 or 5.7 of the Mortgage; (x) damages or costs (including withoutlimitation reasonable attorneys’ fees) incurred by Holder as a result of anyintentional fraud or material misrepresentation by Maker in connection with theProperty, the Loan Documents, or the Application (as defined in the Mortgage);(xi) damages or costs (including without limitation reasonable attorneys’fees) incurred by Holder as a result of Maker forfeiting the Property orChattels or any portion of the Property or Chattels due to criminal activity;and (xii) damages or costs (including without limitation reasonableattorneys’ fees) incurred by Holder as a result of any amendment, modificationor Maker termination of any lease to Excel Inc., Matheson Flight Extenders,Inc., or FedEx Ground Package System, Inc. (individually, a Major Tenant) orexecution or subsequent amendment, modification or termination of any lease forany space currently occupied by any Major Tenant without the prior writtenconsent of Holder, which consent shall not be unreasonably held.  For purposes of the foregoing, “affiliate”shall mean any individual, corporation, trust, partnership or any other personor entity controlled by, controlling or under common control with Maker.  A person or entity of any nature shall bepresumed to have control when it possesses the power, directly or indirectly,to direct, or cause the direction

 

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of,the management or policies of another person or entity, whether through ownershipof voting securities, by contract, or otherwise.

 

(b)           The agreement set forthin the introductory paragraph of this Section 18 to limit the personalliability of Maker shall become null and void and be of no further force andeffect, and Maker and each Guarantor shall be personally liable for theobligations evidenced by this Note, in the event of any attempt, without a goodfaith defense, by Maker, any Guarantor, or any other person directly orindirectly responsible for the management of Maker or liable for repayment ofMaker’s obligations under the Loan (whether as maker, endorser, guarantor,surety, general partner or otherwise) to materially delay foreclosure againstthe Property, Chattels and/or Intangible Personalty, which attempts shallinclude, without limitation (i) any claim that any Loan Document isinvalid or unenforceable to an extent that would preclude any such foreclosureor other exercise of remedies by Holder to obtain possession of any collateralfor the Loan; (ii) Maker filing a petition in bankruptcy, Maker failing tooppose in good faith the entry of an order for relief pursuant to anyinvoluntary bankruptcy petition filed against it, or Maker seeking anyreorganization, liquidation, dissolution or similar relief under the bankruptcylaws of the United States or under any other similar federal, state or otherstatute relating to relief from indebtedness; or (iii) Maker consentingto, or failing to oppose in good faith, the appointment of a receiver, trusteeor liquidator with respect to Maker or the Property or any part thereof.

 

19.           Severability.  If any provision hereof or of any otherdocument securing or related to the indebtedness evidenced hereby is, for anyreason and to any extent, invalid or unenforceable, then neither the remainderof the document in which such provision is contained, nor the application ofthe provision to other persons, entities, or circumstances, nor any otherdocument referred to herein, shall be affected thereby, but instead shall beenforceable to the maximum extent permitted by law.

 

20.           Transfer of Note.  Each provision of this Note shall be andremain in full force and effect notwithstanding any negotiation or transferhereof and any interest herein to any other Holder or participant.

 

21.           Governing Law.  Regardless of the place of its execution,this Note shall be construed and enforced in accordance with the laws of theState.

 

22.           Time of Essence.  Time is of the essence with respect to all ofMaker’s obligations under this Note.

 

23.           Remedies Cumulative.  The remedies provided to Holder in this Note,the Mortgage and the other Loan Documents are cumulative and concurrent and maybe exercised singly, successively or together against Maker, the Property, andother security, or any guarantor of this Note, at the sole and absolutediscretion of the Holder.

 

24.           No Waiver.  Holder shall not by any act or omission bedeemed to waive any of its rights or remedies hereunder unless such waiver isin writing and signed by the Holder and then only to the extent specificallyset forth therein.  A waiver of one eventshall not be

 

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construedas continuing or as a bar to or waiver of any right or remedy granted to Holderhereunder in connection with a subsequent event.

 

25.           Joint and SeveralObligation.  If Maker is more thanone person or entity, then (a) all persons or entities comprising Makerare jointly and severally liable for all of the Maker’s obligations hereunder;(b) all representations, warranties, and covenants made by Maker shall bedeemed representations, warranties, and covenants of each of the persons orentities comprising Maker; (c) any breach, Default or Event of Default byany of the persons or entities comprising Maker hereunder shall be deemed to bea breach, Default, or Event of Default of Maker; and (d) any referenceherein contained to the knowledge or awareness of Maker shall mean theknowledge or awareness of any of the persons or entities comprising Maker.

 

26.           WAIVER OF JURY TRIAL.  MAKER AND HOLDER KNOWINGLY, IRREVOCABLY,VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BYJURY IN RESPECT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON THIS NOTE,OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE MORTGAGE, OR ANYOTHER LOAN DOCUMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO OR TO ANY LOANDOCUMENT.  THIS PROVISION IS A MATERIALINDUCEMENT FOR MAKER AND HOLDER TO ENTER INTO THE LOAN.

 

27.           WAIVER OF PREPAYMENTRIGHT WITHOUT PREMIUM.  MAKER HEREBYEXPRESSLY WAIVES ANY RIGHT IT MAY HAVE UNDER APPLICABLE LAW TO PREPAY THISNOTE, IN WHOLE OR IN PART, WITHOUT PREPAYMENT PREMIUM, UPON ACCELERATION OF THEMATURITY DATE OF THIS NOTE, AND AGREES THAT, IF FOR ANY REASON A PREPAYMENT OFALL OR ANY PART OF THIS NOTE IS MADE, WHETHER VOLUNTARILY OR FOLLOWING ANYACCELERATION OF THE MATURITY DATE OF THIS NOTE BY HOLDER ON ACCOUNT OF THEOCCURRENCE OF ANY EVENT OF DEFAULT ARISING FOR ANY REASON, INCLUDING, WITHOUTLIMITATION, AS A RESULT OF ANY PROHIBITED OR RESTRICTED TRANSFER, FURTHERENCUMBRANCE OR DISPOSITION OF THE PROPERTY OR ANY PART THEREOF SECURING THISNOTE, THEN MAKER SHALL BE OBLIGATED TO PAY, CONCURRENTLY WITH SUCH PREPAYMENT,THE PREPAYMENT PREMIUM PROVIDED FOR IN THIS NOTE OR, IN THE EVENT OF PREPAYMENTFOLLOWING ACCELERATION OF THE MATURITY DATE HEREOF WHEN THIS NOTE IS CLOSED TOPREPAYMENT, AS PROVIDED IN THE MORTGAGE. MAKER HEREBY DECLARES THAT HOLDER’S AGREEMENT TO MAKE THE LOAN AT THEINTEREST RATE AND FOR THE TERM SET FORTH IN THIS NOTE CONSTITUTES ADEQUATECONSIDERATION, GIVEN INDIVIDUAL WEIGHT BY MAKER, FOR THIS WAIVER AND AGREEMENT.

 

**[Balance of Page Intentionally Left Blank]**

 

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IN WITNESS WHEREOF andintending to be legally bound, Maker has duly executed this Note as of the datefirst above written.

 
|   | **MAKER:**                                                                    |
|--------|-------------------------------------------------------------------------------|
|   |                                                                          |
|   | TRADEPORT DEVELOPMENT II,  LLC, a  Connecticut limited liability company      |
|   |                                                                          |
|   | By: River Bend Associates,  Inc., a Connecticut  corporation, its Sole Member |
|   |                                                                          |
|   | By:                                                                           | /s/ Anthony Galici |   |   |
|   |                                                                          |
|   | Name:                                                                         | Anthony Galici |   |   |
|   |                                                                          |
|   | Title:                                                                        | Vice President |   |   |
|        |                                                                               |  |  |  |  |  |  |  |  |  |

 

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