exv10w64



 





Exhibit 10.64




			
	 	 	 
	When recorded return to: 

Susan M. Saliba, Esq. 

Edwards Angell Palmer & Dodge LLP 

111 Huntington Avenue 

Boston, MA 02199

(617) 951-3318
	 	(400 North Main Street, Rochester, Strafford County, NH)






MORTGAGE, SECURITY AGREEMENT,

ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING




     THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING (as the
same may be amended, restated or otherwise modified from time to time, this “Mortgage”) is
dated as of November 30, 2007, between O.L. DEVELOPMENT, INC., a New Hampshire corporation with its
principal place of business at 2100 Roosevelt Avenue, Springfield, Massachusetts 01102 (the
“Mortgagor”), and TORONTO DOMINION (TEXAS) LLC, a Delaware limited liability company, in
its capacity as administrative agent for itself, the Lenders (as defined below) and the other
Secured Parties (as defined in the Credit Agreement referred to below), with an office at 31 West
52nd Street, 19th Floor, New York, New York 10019 (together with its
successors and assigns, in said capacity, the “Administrative Agent”). Capitalized terms
used but not defined herein shall have the meanings given such terms in the Credit Agreement
referred to below.



RECITALS:




     WHEREAS, Smith & Wesson Holding Corporation, a Nevada corporation (“Holdings”), Smith
& Wesson Corp., a Delaware corporation (“S&W Corp.”), Thompson/Center Arms Company, Inc., a
New Hampshire corporation (“TCAC”) (Holdings, S&W Corp. and TCAC are,



 









 







collectively, the “Borrowers”), the Administrative Agent and the lenders party thereto
from time to time (the “Lenders”), are parties to a Credit Agreement of even date herewith
(as the same may be amended, restated or otherwise modified from time to time, the “Credit
Agreement”). The Credit Agreement provides, among other things, for Loans in the aggregate
original principal amount of $123,303,400.23 and other financial accommodations to and for the
benefit of the Borrowers and the issuance of Letters of Credit thereunder; and



     WHEREAS, the Mortgagor and the other parties thereto from time to time as guarantors, entered
into a certain Subsidiary Guaranty of even date herewith in favor of the Administrative Agent (as
the same may be amended, restated or otherwise modified from time to time, the “Subsidiary
Guaranty”), pursuant to which the Mortgagor and the other guarantors party thereto guaranteed
the payment and performance of all of the obligations, liabilities and indebtedness of the
Borrowers to the Administrative Agent, the Lenders and the other Secured Parties, including,
without limitation, the Loans and the other Obligations, all upon the terms and conditions set
forth in the Subsidiary Guaranty; and



     WHEREAS, to secure the Subsidiary Guaranty, the Mortgagor and the other parties thereto have
entered into a certain Pledge and Security Agreement of even date herewith in favor of the
Administrative Agent (as the same may be amended, restated or otherwise modified from time to time,
the “Security Agreement”); and



     WHEREAS, this Mortgage secures to the Administrative Agent, for the benefit of the
Administrative Agent, the Lenders and the other Secured Parties (all of the following,
collectively, the “Secured Obligations”): (a) the due and punctual payment and performance
of all indebtedness, obligations and liabilities, now or hereafter existing, of the Mortgagor and
the other guarantors arising under, out of or in connection with the Subsidiary Guaranty,
including, without limitation, the Obligations; (b) the due and punctual payment of all other sums,
with interest thereon, advanced in accordance herewith to protect the security of this Mortgage;
(c) the performance of the covenants and agreements of the Mortgagor contained in this Mortgage,
the Credit Agreement, the Subsidiary Guaranty, the Security Agreement, the other Loan Documents,
and any other agreements, documents or instruments now or hereafter evidencing the Secured
Obligations; and (d) each renewal, extension, consolidation or refinancing of any of the foregoing,
in whole or in part; and



     WHEREAS, it is a requirement under the Credit Agreement that the Mortgagor shall have executed
and delivered to the Administrative Agent this Mortgage; and



     WHEREAS, the Mortgagor will obtain benefits from the making of the Loans, the issuance of the
Letters of Credit and the making of the other financial accommodations as set forth in the Credit
Agreement and, accordingly, desires to execute this Mortgage in order to satisfy the condition
described in the preceding paragraph and to induce the Lenders to make the Loans, issue the Letters
of Credit and make the other financial accommodations as set forth in the Credit Agreement.



     NOW THEREFORE, in consideration of the benefits accruing to the Mortgagor, the receipt and
sufficiency of which are hereby acknowledged, the Mortgagor hereby makes the following
representations and warranties to the Administrative Agent and the other Secured



-2-









 







Parties (as hereinafter defined) and hereby covenants and agrees with the Administrative Agent
and the other Secured Parties as follows:



ARTICLE
1 — GRANTS OF SECURITY




     Section 1.1 Property Mortgaged. For good and valuable consideration, in order to
secure the Secured Obligations, the Mortgagor does hereby irrevocably give, grant, bargain, sell,
convey, assign, confirm, grant a first priority mortgage and security interest in, and transfer to
the Administrative Agent, WITH MORTGAGE COVENANTS, UPON THE STATUTORY CONDITIONS AND WITH THE
STATUTORY POWER OF SALE, all of the following property, rights, interests and estates now owned, or
hereafter acquired, by the Mortgagor (collectively, the “Property”):




     (a) Land. The real property located at 400 North Main Street, City of
Rochester , County of Strafford, State of New Hampshire and known as Tax Map No. 114, Lot
No. 2 described in Exhibit A attached hereto and made a part hereof (collectively,
the “Land”), together with additional lands, estates and development rights
hereafter acquired by the Mortgagor for use in connection with the development, ownership or
occupancy of such real property, and all additional lands and estates therein which may,
from time to time, by supplemental mortgage or otherwise be expressly made subject to the
lien of this Mortgage;




     (b) Improvements. The buildings, structures, fixtures, additions, accessions,
enlargements, extensions, modifications, repairs, replacements and improvements now or
hereafter erected or located on the Land (the “Improvements”);




     (c) Easements. All easements, rights-of-way or use, rights, strips and gores
of land, streets, ways, alleys, passages, sewer rights, water, water courses, water rights
and powers, air rights and development rights, and all estates, rights, titles, interests,
privileges, liberties, servitudes, tenements, hereditaments and appurtenances of any nature
whatsoever, in any way now or hereafter belonging, relating or pertaining to the Land and
the Improvements and the reversion and reversions, remainder and remainders, and all land
lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining
the Land, to the center line thereof and all the estates, rights, titles, interests,
property, possession, claim and demand whatsoever, both at law and in equity, of the
Mortgagor of, in and to the Land and the Improvements and every part and parcel thereof,
with the appurtenances thereto;




     (d) Fixtures and Personal Property. All machinery, equipment, goods,
inventory, fixtures (including, but not limited to, all heating, air conditioning, plumbing,
lighting, communications and elevator fixtures) and other property of every kind and nature
whatsoever owned by the Mortgagor, or in which the Mortgagor has or shall have any right,
title or interest, now or hereafter located upon the Land and the Improvements, or
appurtenant thereto, and usable in connection with the present or future use, maintenance,
enjoyment, operation and occupancy of the Land and the Improvements and all building
equipment, materials and supplies of any nature whatsoever owned by the Mortgagor, or in
which the Mortgagor has or shall have any right, title or interest,



-3-









 






now or hereafter located upon the Land and the Improvements, or appurtenant thereto, or
usable in connection with the present or future operation and occupancy of the Land and the
Improvements, and the right, title and interest of the Mortgagor in and to any of the
Personal Property (as hereinafter defined), and all proceeds and products of the above;




     (e) Leases and Rents. All leases and other agreements affecting the use,
enjoyment or occupancy of the Land and the Improvements heretofore or hereafter entered
into, whether before or after the filing by or against the Mortgagor of any petition for
relief under 11 U.S.C. § 101 et seq., as the same maybe amended from time to time (the
“Bankruptcy Code”) (individually, a “Lease”; collectively, the
“Leases”) and all right, title and interest of the Mortgagor, its successors and
assigns therein and thereunder, including, without limitation, cash or securities deposited
thereunder to secure the performance by the lessees of their obligations thereunder and all
rents (including all tenant security and other deposits), additional rents, revenues, issues
and profits (including all oil and gas or other mineral royalties and bonuses) from the Land
and the Improvements whether paid or accruing before or after the filing by or against the
Mortgagor of any petition for relief under the Bankruptcy Code (collectively the
“Rents”) and all proceeds from the sale or other disposition of the Leases and the
right to receive and apply the Rents to the payment of the Secured Obligations ;




     (f) Condemnation Awards. All awards or payments, including interest thereon,
which may heretofore and hereafter be made with respect to the Property, whether from the
exercise of the right of eminent domain (including but not limited to any transfer made in
lieu of or in anticipation of the exercise of the right), or for a change of grade, or for
any other injury to or decrease in the value of the Property;




     (g) Insurance Proceeds. All proceeds of and any unearned premiums on any
insurance policies covering the Property, including, without limitation, the right to
receive and apply the proceeds of any insurance, judgments, or settlements made in lieu
thereof, for damage to the Property;




     (h) Tax Certiorari. All refunds, rebates or credits in connection with a
reduction in real estate taxes and assessments charged against the Property as a result of
tax certiorari or any applications or proceedings for reduction;




     (i) Conversion. All proceeds of the conversion, voluntary or involuntary, of
any of the foregoing including, without limitation, proceeds of insurance and condemnation
awards, into cash or liquidation claims;




     (j) Rights. The right, in the name and on behalf of the Mortgagor, to appear
in and defend any action or proceeding brought with respect to the Property and to commence
any action or proceeding to protect the interest of the Administrative Agent in the
Property;




     (k) Agreement. Except for those agreements that by their terms are not
assignable, all agreements, contracts (including purchase, sale, option, right of first
refusal and other contracts pertaining to the Property), certificates, instruments,



-4-









 






franchises, permits, licenses, approvals, consents, plans, specifications and other
documents, now or hereafter entered into, and all rights therein and thereto, respecting or
pertaining to the use, occupation, construction, management or operation of the Property
(including any Improvements or respecting any business or activity conducted on the Land and
any part thereof) and all right, title and interest of the Mortgagor therein and thereunder,
including, without limitation, the right, upon the happening of any default hereunder, to
receive and collect any sums payable to the Mortgagor thereunder (each a “Property
Agreement” and collectively, the “Property Agreements”);




     (l) Other Rights. Any and all other rights of the Mortgagor in and to the
Property and any accessions, renewals, replacements and substitutions of all or any portion
of the Property and all proceeds and products of the Property or any portion thereof; and




     (m) Books and Records. All books and records relating to any of the foregoing.



     Section 1.2 Assignment of Rents. The Mortgagor hereby absolutely and unconditionally
assigns to the Administrative Agent for the benefit of itself, the Lenders and the other Secured
Parties all of the Mortgagor’s right, title and interest in and to all current and future Leases
and Rents; it being intended by the Mortgagor that this assignment constitutes a present, absolute
and unconditional assignment and not an assignment for additional security only; provided that the
Mortgagor will be entitled to receive such Rents until an Event of Default has occurred hereunder.



     Section 1.3 Security Agreement. This Mortgage is both a real property mortgage and a
“security agreement” within the meaning of the Uniform Commercial Code as adopted and enacted by
the State or States where any of the Property is located (the “Uniform Commercial Code”).
The Property includes both real and personal property and all other rights and interests, whether
tangible or intangible in nature, of the Mortgagor in the Property. The Mortgagor by executing and
delivering this Mortgage has granted and hereby grants to the Administrative Agent for the benefit
of itself, the Lenders and the other Secured Parties, as security for the Secured Obligations , a
security interest in the Property to the full extent that the Property may be subject to the
Uniform Commercial Code (said portion of the Property so subject to the Uniform Commercial Code
being called in this paragraph the “Collateral”). This Mortgage shall also be effective as
a “fixture filing” as to Property which is or is to become fixtures. For purposes of this Section
1.3, (i) the Mortgagor shall be deemed the “Debtor” with the address set forth for the Mortgagor in
the first paragraph of this Mortgage which the Mortgagor certifies as accurate; (ii) the
Administrative Agent shall be deemed to be the “Secured Party” with the address set forth for the
Administrative Agent in the first paragraph of this Mortgage and shall have all of the rights of a
secured party under the Uniform Commercial Code, (iii) this Mortgage covers all items of the
Property which constitute personal property and which are or will become fixtures on the Land, (iv)
the Mortgagor is the record owner of the Land, (v) the organizational identification number of the
Mortgagor is 143395, (vi) the Mortgagor is a corporation organized under the laws of the State of
New Hampshire, and (vii) the exact legal name of the Mortgagor is O.L. Development, Inc.
Information concerning the security interest herein granted may be obtained from the parties at the
addresses of the parties set forth in the first paragraph of this



-5-









 







Mortgage. The Mortgagor shall promptly advise Administrative Agent of the accrual of any
commercial tort claims involving the Property. In the event of any change in name, identity,
structure, or jurisdiction or form of organization of the Mortgagor, the Mortgagor shall notify the
Administrative Agent thereof in accordance with the Security Agreement. The Administrative Agent
shall be authorized to prepare and file (without the signature of the Mortgagor) such Uniform
Commercial Code forms as Agent may deem necessary from time to time to maintain the priority of the
Administrative Agent’s lien upon and security interest in the Property, and the Mortgagor shall pay
all expenses and fees in connection with such filing. Notwithstanding anything to the contrary
contained in this Mortgage, the mortgage lien and security interest created by the Mortgage shall
not extend to, and the term “Property” shall not include, any Excluded Property (as such term is
defined in the Security Agreement).



     Section 1.4 Pledge of Monies Held. The Mortgagor hereby assigns to the Administrative
Agent all insurance proceeds paid in connection with the Property and all condemnation awards and
payments described in Section 3.4, as additional security for the Secured Obligations and
shall be paid and applied in accordance with the Credit Agreement.



CONDITIONS TO GRANT




     TO HAVE AND TO HOLD the above granted and described Property unto the Administrative Agent,
and the successors and assigns of the Administrative Agent, forever, PROVIDED, HOWEVER, the
Administrative Agent shall release this Mortgage and the lien hereof by proper instrument upon
indefeasible payment in full in cash and discharge of all Secured Obligation sand the termination
of all commitments of the Administrative Agent and the Lenders to the Borrowers thereunder
(including, without limitation, all commitments to make advances and readvances of principal),
including payment of all reasonable expenses incurred by the Administrative Agent in connection
with the preparation and execution of such release. Notwithstanding the foregoing, the Mortgagor’s
obligation to indemnify and hold harmless the Administrative Agent and the other Secured Parties
pursuant to the provisions hereof with respect to matters relating to any period of time during
which this Mortgage was in effect shall survive any such payment or release.



ARTICLE
2 — SECURED




     Section 2.1 Loans and Other Obligations. This Mortgage and the grants, security
interests, assignments and transfers made in Article 1 are given for the purpose of
securing the Secured Obligations, in such order of priority as specified in the Credit Agreement.



ARTICLE
3 — MORTGAGOR COVENANTS




     Section 3.1 Payments. The Mortgagor shall promptly pay and perform all of the Secured
Obligations when due in accordance with the Credit Agreement and the other Loan Documents.



     Section 3.2 Insurance. The Mortgagor shall obtain and maintain all of the insurance
required pursuant to Section 6.09 of the Credit Agreement. The Mortgagor will promptly give
written notice of any casualty or other insured damage to any material portion of the Property to
the Administrative Agent in accordance with Section 6.10 of the Credit Agreement. Any and all
insurance proceeds payable to the Mortgagor from any such casualty or other insured damage are



-6-









 







hereby assigned to the Administrative Agent and shall be paid and applied in accordance with
Section 2.17 of the Credit Agreement.



     Section 3.3 Payment of Taxes, Etc. The Mortgagor shall pay all taxes, assessments,
water rates, sewer rents, governmental impositions, and other charges now or hereafter levied or
assessed or imposed against the Property or any part thereof (the “Taxes”), all ground
rents, all premiums for insurance, maintenance charges and similar charges, now or hereafter levied
or assessed or imposed against the Property or any part thereof (the “Other Charges”), and
all charges for utility services provided to the Property as the same become due and payable,
subject to the Mortgagor’s right to contest the same as and to the extent permitted by the Credit
Agreement. The Mortgagor will deliver to the Administrative Agent, promptly upon the
Administrative Agent’s request, evidence satisfactory to the Administrative Agent that the Taxes,
Other Charges and utility service charges have been so paid or are not then delinquent. The
Mortgagor shall not allow and shall promptly cause to be paid and discharged any lien or charge
whatsoever which may be or become a lien or charge against the Property. Except to the extent sums
sufficient to pay all Taxes and Other Charges have been deposited with the Administrative Agent in
accordance with the terms of this Mortgage, the Mortgagor shall furnish to the Administrative
Agent, upon the Administrative Agent’s request, paid receipts for the payment of the Taxes and
Other Charges prior to the date the same shall become delinquent. The Mortgagor pay when due all
operating costs of the Property.



     Section 3.4 Condemnation. If any action shall be commenced or any written notice
shall be received for the taking by exercise of the power of eminent domain of title to or the
temporary use of all or any part of the Property, or in the event of any private sale in lieu
thereof (in any case, a “Taking”), the Mortgagor will promptly give written notice thereof
to the Administrative Agent in accordance with Section 6.10 of the Credit Agreement. Any and all
proceeds payable to the Mortgagor from any award made in respect of any Taking are hereby assigned
to the Administrative Agent; any and all proceeds of any Taking paid to the Mortgagor or the
Administrative Agent shall be paid and applied in accordance with Section 2.17 of the Credit
Agreement.



     Section 3.5 Maintenance of Property. The Mortgagor shall cause the Property to be
maintained and operated in a good and safe condition and repair and in at least as good condition
and repair as same was on the date hereof or in such better condition as same may thereafter be put
(ordinary wear and tear excepted but damage from casualty expressly not excepted), and will not
commit or suffer any waste of any of the Property. The Mortgagor shall not use, maintain or
operate the Property in any manner which constitutes a public or private nuisance or which makes
void, voidable, or cancelable, or increases the premium of, any insurance then in force with
respect thereto. Except as provided in Section 7.05 of the Credit Agreement, the Improvements and
the Collateral shall not be removed, demolished or materially altered without the prior written
consent of the Administrative Agent. The Mortgagor shall promptly repair, replace or rebuild any
part of the Property which may be destroyed by any casualty, or become damaged, worn or dilapidated
or which may be affected by any proceeding of the character referred to in Section 3.4 hereof, to a
condition substantially similar to the condition immediately prior to the foregoing, whether or not
proceeds of insurance (or proceeds in connection with any Taking) are available or sufficient for
the purpose. The Mortgagor shall complete within a



-7-









 







reasonable time and pay for any structure or other Improvement now or at any time in the
process of construction or repair on the Land.



     Section 3.6 Use of Property; Zoning. The Mortgagor covenants that the Property shall
be used only for purposes permitted by applicable zoning laws. The Mortgagor further covenants
that the Mortgagor will not change or permit any change in the use or general nature of the
occupancy of the Property as it exists as of the date of this Mortgage, without the Administrative
Agent’s prior written consent. The Mortgagor shall not initiate, join in, acquiesce in, or consent
to any change in any private restrictive covenant, zoning law (including, without limitation, any
zoning reclassification) or other public or private restriction, limiting or defining the uses
which may be made of the Property or any part thereof. If under applicable zoning provisions the
use of all or any portion of the Property is or shall become a nonconforming use, the Mortgagor
will not cause or permit the nonconforming use to be discontinued or abandoned without the express
written consent of the Administrative Agent. The Mortgagor shall not take any steps whatsoever to
convert the Property, or any portion thereof, to a condominium or cooperative form of management.



     Section 3.7 Compliance with Laws, etc. The Mortgagor shall promptly comply, in all
respects, with all existing and future federal, state and local laws, orders, ordinances,
governmental rules and regulations or court orders affecting the Property, or the use thereof,
including, but not limited to, the Americans with Disabilities Act (the “ADA”)
(collectively “Applicable Laws”), except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Mortgagor
shall keep the Property in compliance in all respects with all Applicable Laws, except where the
failure to do so, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect. The Mortgagor shall give prompt notice to the Administrative Agent of the
receipt by the Mortgagor of any notice related to a violation of any Applicable Laws and of the
commencement of any proceedings or investigations which relate to compliance with Applicable Laws.
The Mortgagor shall take appropriate measures to prevent and will not engage in or knowingly permit
any illegal activities at the Property. The Mortgagor shall obtain and maintain in full force and
effect, and abide by and satisfy the terms and conditions of, all material permits, licenses,
registrations and other authorizations with or granted by any governmental authorities that may be
required from time to time with respect to the performance of its obligations under this Mortgage.
The Mortgagor shall comply with the terms and conditions of the Property Agreements and will not
amend, supplement or terminate any material Property Agreement without, in each instance, the prior
written consent of the Administrative Agent.



     Section 3.8 . Books and Records. The Mortgagor shall comply with all record keeping
and financial disclosure requirements as set forth in the Credit Agreement.



     Section 3.9 Deposits for Taxes and Other Charges. At any time after the occurrence of
an Event of Default hereunder, the Mortgagor, upon request from the Administrative Agent, will pay
to the Administrative Agent, on the first day of each and every month thereafter ensuing, in
addition to any other payments required hereunder, under the Credit Agreement and/or under any of
the other Loan Documents, an amount equal to 1/12th of all Taxes and Other Charges on or against
any of the Property to become payable during the ensuing 12 months, as estimated from time to time
by the Administrative Agent (but with the first such payment to be in such amount



-8-









 







as shall, with the succeeding payments, be sufficient to pay all such amounts at least 30 days
before they become due and payable), such sums to be held by the Administrative Agent (but without
any obligation to pay interest thereon, except to the extent required by law) and applied to the
payment of such premiums, taxes and assessments. If the sums collected under this Section 3.9 are
insufficient to pay the Taxes and Other Charges as they become due and payable, then the Mortgagor
shall pay to the Administrative Agent promptly upon demand any amount necessary to make up the
deficiency on or before the date when such amounts shall be due. Any amount collected hereunder
from time to time, until the same shall be applied as above provided, shall constitute additional
collateral security for the indebtedness secured by this Mortgage; and in the event of any Event of
Default, any part or all of such amounts may be applied by the Administrative Agent, at its option,
to the Secured Obligations pursuant to the Credit Agreement. If the funds so deposited exceed the
amount required to pay such Taxes and Other Charges for any year, the excess shall be applied
toward subsequent deposits. Said deposits need not be kept separate and apart from any other funds
of the Administrative Agent. The Administrative Agent, in making any payment hereby authorized
relating to Taxes and/or Other Charges, may do so according to any bill, statement or estimate
procured from the appropriate person, entity or office without inquiry into the accuracy of such
bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien
or title or claim thereof.



     Section 3.10 Leases.




     (a) The Mortgagor shall not without the Administrative Agent’s prior written consent
(i) execute or permit to exist any Lease of the Property or any portion thereof, (ii) amend
or modify any Lease, (iii) execute any assignment or pledge of any Lease or of the rents or
any part thereof from the Property, other than the assignment herein to the Administrative
Agent, (iv) except where the lessee under any Lease is in default thereunder, terminate or
consent to the cancellation or surrender of such Lease, (v) accept any prepayments of any
installment of rents to become due under any Lease for a period exceeding one month, (vi)
permit the deferral of or waive or postpone the payment of any rental payment under any
Lease, or (vii) permit any transfer or assignment of any Lease or the sublease of the
property subject to any Lease.




     (b) The Mortgagor shall at all times timely and faithfully perform, or cause to be
performed, all of the covenants, conditions and agreements contained in all Leases to be
kept and performed by the lessor thereunder and shall at all times do all things necessary
to compel performance by the lessee under each Lease of all obligations, covenants and
agreements by such lessee to be performed thereunder.




     (c) The Mortgagor shall furnish to the Administrative Agent, within thirty (30) days
after each request by the Administrative Agent to do so, a written statement in respect of
any or all of the Leases setting forth the space occupied, the rentals payable thereunder,
and such other information as the requesting party may reasonably request.



     Section 3.11 Prohibition of Liens and Transfers. Mortgagor shall not, without the
prior written consent of the Administrative Agent or except as otherwise expressly permitted by the
Credit Agreement, sell, convey, alienate, mortgage, transfer or suffer the transfer (whether
voluntary or involuntary) of, or the imposition of any lien or encumbrance (including, without



-9-









 







limitation, any mechanics’, materialmen’s or like lien or claim or other lien or claim for
lien) with respect to, legal title to or any beneficial interest in the Property or any portion
thereof other than Permitted Encumbrances and the other Liens expressly permitted by Section 7.02
of the Credit Agreement, and will not without the prior written consent of the Administrative Agent
lease, license or permit any other person to occupy the whole or any part of the Property, but no
such consent by the Administrative Agent shall in any event be deemed a waiver or release of any of
the provisions of this Section 3.11 nor a consent to any such sale, conveyance, alienation,
mortgage, transfer, leasing, licensing or permission to use or occupy any of the Property on any
future occasion, and no such consent nor any such sale, alienation, mortgage, conveyance, transfer,
leasing, licensing or permission shall release or discharge the Mortgagor from any obligations or
liabilities hereunder, all of which shall continue to be direct and primary in any event. If the
Mortgagor now or hereafter is permitted to create or to maintain any lien or encumbrance on any or
all of the Property securing any indebtedness or other obligations, the Mortgagor will fully and
promptly fulfill and observe each and every covenant and condition contained in each of the
agreements and instruments evidencing, securing or otherwise relating to said indebtedness or other
obligations. Any sale, alienation, mortgage, conveyance, transfer, leasing or licensing of the
Property made in contravention of this Section 3.11 shall be null and void and of no force and
effect. The Mortgagor agrees to bear and shall pay or reimburse the Administrative Agent on demand
for all reasonable expenses (including, without limitation, all recording costs, reasonable
in-house and outside attorneys’ fees and disbursements and title search costs) incurred by the
Administrative Agent in connection with the review, approval and documentation of any such sale,
alienation, mortgage, conveyance, transfer, leasing or licensing of the Property.



     Section 3.12 Right to Perform the Mortgagor’s Covenants. In the event of any default
in the performance of any of the Mortgagor’s covenants or agreements herein, whether or not an
Event of Default shall have occurred, the Administrative Agent may, at the option of the
Administrative Agent, perform the same, and the Administrative Agent may also take all such actions
as it deems desirable to prevent or cure any situation or circumstance which might, with the
passage of time or giving of notice or both, become an Event of Default. The costs of any and all
performance and actions taken under this Section 3.12 shall be paid by the Mortgagor to the
Administrative Agent on demand, with interest at the highest applicable rate set forth in the
Credit Agreement (the “Default Rate”), as from time to time in effect, such interest to
accrue from the date such cost is incurred by the Administrative Agent through the date of payment
by the Mortgagor, and all such costs and such interest shall be secured by this Mortgage.



     Section 3.12. Entry. The Administrative Agent and any persons authorized by the
Administrative Agent shall have the right to enter any or all of the Land and Improvements to
inspect the Property pursuant to Section 6.06 of the Credit Agreement.



ARTICLE
4 — REPRESENTATIONS AND WARRANTS




     The Mortgagor, for itself and its successors and assigns, does hereby represent, warrant and
covenant to and with the Administrative Agent and the other Secured Parties, and their respective
successors and assigns, that:



-10-









 





     Section 4.1 Title. The Mortgagor has good, marketable and indefeasible fee simple
title to the Land and the Improvements and good title or valid rights and interests in and to the
other Property, subject only to the Permitted Encumbrances and the other Liens expressly permitted
by Section 7.02 of the Credit Agreement. The possession of the Property has been peaceful and
undisturbed and title thereto has not been disputed or questioned to the best of the Mortgagor’s
knowledge. Further, the Mortgagor has full power and lawful authority to grant, bargain, sell,
convey, assign, transfer, encumber, mortgage and grant a security interest in, its interest in the
Property in the manner and form hereby done or intended. The Mortgagor will preserve its interest
in and title to the Property and will forever warrant and defend the same to the Administrative
Agent against any and all claims whatsoever and will forever warrant and defend the validity and
priority of the lien and security interest created herein against the claims of all persons and
parties whomsoever, subject to the Permitted Encumbrances and the other Liens expressly permitted
by Section 7.02 of the Credit Agreement. The foregoing warranty of title shall survive the
foreclosure of this Mortgage and shall inure to the benefit of and be enforceable by the
Administrative Agent in the event the Administrative Agent (or its designee) or any other Secured
Party acquires title to the Property pursuant to any foreclosure.



     Section 4.2 No Foreign Person. The Mortgagor is not a “foreign person” within the
meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and the related
Treasury Department regulations, including temporary regulations.



     Section 4.3 Permitted Encumbrances. The Permitted Encumbrances and the other Liens
expressly permitted by Section 7.02 of the Credit Agreement do not and will not materially
interfere with the security of this Mortgage or materially and adversely affect (1) the ability of
the Mortgagor to generate income from the Property sufficient to pay and perform the Secured
Obligations in a timely manner or (2) the use of the Property for the use currently being made
thereof, the operation of the Property as currently being operated or the value of the Property.



     Section 4.4 First Lien. Upon the execution by the Mortgagor and the recording of this
Mortgage, and upon the filing of UCC financing statements or amendments thereto, the Administrative
Agent will have a valid first priority mortgage lien on the Property and a valid, perfected, first
priority security interest in all Collateral secured hereby, subject to no liens, charges or
encumbrances other than the Permitted Encumbrances and the other Liens expressly permitted by
Section 7.02 of the Credit Agreement.



     Section 4.5 Access/Utilities. The Property has adequate rights of access to public
ways and is served by adequate gas, electric, cable, telephone, water, storm sewer, sanitary sewer
and storm drain facilities. All public utilities (including, but not limited to, the foregoing)
necessary to the continued use, enjoyment, occupancy, operation and disposition of the Property as
presently used and enjoyed are located in the public right-of-way abutting the Property, and all
such utilities are connected so as to serve the Property without passing over other property. All
streets, roads, highways, bridges and waterways necessary for access to and full use, occupancy,
operation and disposition of the Land and the Improvements have been completed, have been publicly
dedicated and accepted by the appropriate municipal authority and are open and provide public
ingress and egress to the Land and the Improvements, or are the subject of irrevocable, perpetual
access easements without condition or cost to the Mortgagor and which easements are for the benefit
of the Property and subject to the approval of the Administrative Agent. All



-11-









 







liquid and solid waste disposal, septic and sewer systems located on the Property are to the
Mortgagor’s actual knowledge in a good and safe condition and repair and in compliance with all
Applicable Laws.



     Section 4.6 Taxes Paid. The Mortgagor has filed all federal, state, county and
municipal tax returns required to have been filed by the Mortgagor with respect to the Property,
and has paid such returns or to any notice of assessment received by the Mortgagor, and the
Mortgagor has no knowledge of any basis for additional assessment with respect to such taxes,
except where failure to do so, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect. Further, the Property is free from delinquent water
charges, sewer rents, taxes and assessments. The Mortgagor and the Property are free from any past
due obligations for sales and payroll taxes.



     Section 4.7 Single Tax Lot. The Land consists of a single lot or multiple tax lots;
no portion of said tax lot(s) covers property other than the Land and no portion of the Land lies
in any other tax lot.



     Section 4.8 No Homestead Intersts. The Property is not subject to homestead
interests.



     Section 4.9 Misstatements of Fact. To the best of the Mortgagor’s knowledge, no
statement of fact made in the Loan Documents contains any untrue statement of a material fact or
omits to state any material fact necessary to make statements contained herein or therein not
materially misleading. To the best of the Mortgagor’s knowledge, there is no fact presently known
to the Mortgagor which has not been disclosed which materially adversely affects, nor as far as the
Mortgagor can foresee, might materially adversely affect the business, operations or condition
(financial or otherwise) of the representing party.



     Section 4.10 Condition of Improvements. The Property is free and clear of any damage
that would materially and adversely affect its value and, without limiting the foregoing, the
Property has not been damaged by fire, water, flood, wind, accident or other cause of loss or
casualty, and any previous damage to the Property has been fully restored. The Improvements are
structurally sound, in good repair and free and clear of any defects in materials and workmanship
and have been constructed and installed in substantial compliance with the plans and specifications
relating thereto. All major building systems located within the Improvements, including, without
limitation, the heating and air conditioning systems and the electrical and plumbing systems, are
in good working order and condition, ordinary wear and tear excepted. The Property and the present
and contemplated use and occupancy thereof are substantially in compliance with all Applicable
Laws, including, without limitation, zoning ordinances, building codes, land use and environmental
laws, laws relating to the disabled (including, but not limited to, the ADA) and other similar
laws.



     Section 4.11 Approvals. The Mortgagor has obtained all necessary certificates,
permits, licenses and other approvals, governmental and otherwise, necessary for the use, occupancy
and operation of the Property and the conduct of its business (including, without limitation,
certificates of completion and certificates of occupancy) and all required zoning, building code,
land use, environmental and other similar permits or approvals, all of which are in full force and
effect as of the date hereof and not subject to revocation, suspension, forfeiture or modification.



-12-









 





     Section 4.12 No Condemnation. No part of any Property has been taken in condemnation
or any like proceeding, nor is any proceeding pending, threatened or known to be contemplated for
the partial or total condemnation or taking of the Property.



     Section 4.13 No Labor or Materialmen Claims. All parties furnishing labor and
materials have been paid in full, and there are no mechanics, laborers or materialmen’s liens or
claims outstanding for work, labor or materials affecting the Property, whether prior to, equal
with or subordinate to the lien of this Mortgage.



     Section 4.14 Leases. As of the date hereof, there is no Lease affecting the Property
or any portion thereof. To the extent the Mortgagor enters into any Lease with respect to the
Property or any portion thereof (all in accordance with the terms of this Mortgage), the Mortgagor
shall deliver to the Administrative Agent a true, correct and complete copy of each such Lease when
any such Lease is executed. Each such Lease shall constitute the legal, valid and binding
obligation of the Mortgagor and, enforceable against the tenant thereof. To the extent the
Mortgagor enters into any Lease with respect to the Property or any portion thereof (all in
accordance with the terms of this Mortgage), the Mortgagor agrees that no such Lease will contain
an option or right of first refusal to purchase all or any portion of the Property or any present
or future interest therein, the Mortgagor agrees to furnish the Administrative Agent when any such
Lease is executed a tenant estoppel certificate and lease subordination, nondisturbance and
attornment agreement executed by the tenant under such Lease and in form and substance reasonably
satisfactory to the Administrative Agent. Further, upon demand, the Mortgagor will collaterally
transfer and assign to the Administrative Agent, in form and substance satisfactory to the
Administrative Agent, the lessor’s interest in any lease now or hereafter affecting the whole or
any part of the Property.



     Section 4.15 Security Agreement. There are no security agreements or UCC financing
statements affecting any of the Property other than the Security Agreement and the UCC financing
statements filed and/or recorded in favor of the Administrative Agent, and the Permitted
Encumbrances and the other Liens expressly permitted by Section 7.02 of the Credit Agreement.



     Section 4.16 Omissions. All reports, certificates, affidavits, statements and other
data furnished to the Administrative Agent by or on behalf of the Mortgagor in connection with the
Loan Documents are true and correct in all material respects and do not omit to state any fact or
circumstance necessary to make the statements therein not materially misleading.



ARTICLE
5 — FURTHER ASSURANCES




     Section 5.1 Further Acts. The Mortgagor will, at the cost of the Mortgagor, and
without expense to the Administrative Agent, do, execute, acknowledge and deliver all and every
such further acts, deeds, conveyances, mortgages, assignments, notices of assignments, transfers,
financing statements, confirmation statements and assurances as the Administrative Agent shall,
from time to time, require, for the better assuring, conveying, assigning, transferring, perfecting
and confirming unto the Administrative Agent the property and rights hereby mortgaged, granted,
bargained, sold, conveyed, confirmed, pledged, assigned, warranted and transferred or intended now
or hereafter so to be, or which the Mortgagor may be or may hereafter become



-13-









 







bound to convey or assign to the Administrative Agent, or for carrying out the intention or
facilitating the performance of the terms of this Mortgage or for filing, registering or recording
this Mortgage, or for complying with all Applicable Laws. The Mortgagor, on demand, will execute
and deliver and hereby authorizes the Administrative Agent to execute in the name of the Mortgagor
or without the signature of the Mortgagor to the extent the Administrative Agent may lawfully do
so, one or more UCC financing statements, chattel mortgages or other instruments, to evidence more
effectively the security interest of the Administrative Agent in the Property. The Mortgagor
grants to the Administrative Agent an irrevocable power of attorney coupled with an interest for
the purpose of exercising and perfecting any and all rights and remedies available to the
Administrative Agent at law and in equity, including without limitation such rights and remedies
available to the Administrative Agent pursuant to this Mortgage. Upon receipt of an affidavit of
an officer of the Administrative Agent as to the loss, theft, destruction or mutilation of all or
any of the Loan Documents which is not of public record, and, in the case of any such mutilation,
upon surrender and cancellation of such Loan Document, the Mortgagor, at its expense, will issue or
caused to be issued, in lieu thereof, a replacement Loan Document, dated the date of such lost,
stolen, destroyed or mutilated Loan Document and otherwise of like tenor.



     Section 5.2 Changes in Tax, Debt Credit and Documentary Stamp Laws. If any law is
enacted or adopted or amended after the date of this Mortgage which imposes a tax, either directly
or indirectly, on the Secured Obligations or the interest of the Administrative Agent or any other
Secured Party in the Property, requires revenue or other stamps to be affixed to any of the Loan
Documents, or imposes any other tax or charge on the same, the Mortgagor will pay the same, with
interest and penalties thereon, if any. If the Administrative Agent is advised by counsel chosen
by it that the payment of tax by the Mortgagor would be unlawful or taxable to the Administrative
Agent or any other Secured Party or unenforceable or provide the basis for a defense of usury, then
the Administrative Agent shall have the right and option, by written notice to the Mortgagor of not
less than ninety (90) calendar days, to declare an Event of Default to exist under this Mortgage
and to declare the Secured Obligations immediately due and payable. The Mortgagor will not claim
or demand or be entitled to any credit or credits on account of the Secured Obligations for any
part of the Taxes or Other Charges assessed against the Property, or any part thereof, and no
deduction shall otherwise be made or claimed from the assessed value of the Property, or any part
thereof; for real estate tax purposes by reason of this Mortgage or the Secured Obligations . If
such claim, credit or deduction shall be required by law, the Administrative Agent shall have the
option, by written notice of not less than ninety (90) calendar days, to declare an Event of
Default to exist under this Mortgage and to declare the Secured Obligations immediately due and
payable.



     Section 5.3 Confirmation Statements. After request by the Administrative Agent, the
Mortgagor, within ten (10) days, shall furnish the Administrative Agent or any proposed assignee
with a statement, duly acknowledged and certified, confirming to the Administrative Agent (or its
designee) (i) the original principal amount of the Secured Obligations , (ii) the unpaid principal
amount of the Secured Obligations , (iii) the rate of interest of the Secured Obligations , (iv)
the terms of payment and maturity date of the Secured Obligations , (v) the date installments of
interest and/or principal were last paid, and (vi) that, except as provided in such statement,
there are no defaults or events which with the passage of time or the giving of notice or both,
would constitute an event of default under the Loan Documents.



-14-









 





ARTICLE 6 – DEFAULT




     Section 6.1 Events of Default. The occurrence of any one or more of the following
events shall constitute an “Event of Default”:




     (a) if any Event of Default occurs under the Credit Agreement; or




     (b) if any of the Mortgagor’s representations or warranties hereunder shall prove to be
untrue or incomplete in any material fashion when made (or deemed to be repeated); or




     (c) if the Mortgagor shall (except as hereinabove expressly provided or expressly
provided in the Credit Agreement or except as the Administrative Agent may otherwise
expressly approve in writing) lease, sell, convey, alienate, mortgage, transfer, or suffer
the transfer (whether voluntary or involuntary) of, or imposition of any lien or encumbrance
(including, without limitation, any mechanics’, materialmen’s or like lien or claim or other
lien or claim for lien) with respect to, legal title to or any beneficial interest in the
Property or any portion thereof; or




     (d) if the Mortgagor shall be in default in the payment of any monies that may be due
pursuant to this Mortgagor or if the Mortgagor shall be in default under Section 3.2
(Insurance) of this Mortgage, Section 3.3 (Payment of Taxes, etc.) of this Mortgage, or
Section 3.10 (Leases) of this Mortgage; or




     (e) if at any time this Mortgage shall not constitute a good and valid, fully perfected
mortgage lien on and security interest in all of the Property, subject in priority only to
Permitted Encumbrances and the other Liens expressly permitted by Section 7.02 of the Credit
Agreement; or




     (f) if the Mortgagor defaults in the performance or observance of any other agreement
of the Mortgagor contained in this Mortgage and such default is not remedied within thirty
(30) days after the earlier of knowledge of such breach or notice thereof from the
Administrative Agent.



ARTICLE
7 — RIGHTS AND REMEDIES




     Section 7.1 Remedies. Upon the occurrence and during the continuance of any Event of
Default, the Mortgagor agrees that the Administrative Agent may exercise any or all of the
following remedies, in addition and without prejudice to, and without limiting or otherwise
impairing, any other rights or remedies provided by law or this Mortgage or any other agreement
between the Mortgagor and the Administrative Agent or the other secured parties (including, without
limitation, the rights and remedies under the Credit Agreement and the other Loan Documents the
Property, including, but not limited to, the following actions, each of which may be pursued
concurrently or otherwise, at such time and in such order as the Administrative Agent may
determine, in its sole discretion, without impairing or otherwise affecting the other rights and
remedies of the Administrative Agent:



-15-









 






     (a) Right to Accelerate. The Administrative Agent may by written notice to the
Mortgagor declare immediately due and payable the Secured Obligations (whether fixed or
matured or merely contingent), as well as all other amounts secured hereby, whereupon all
such amounts shall become immediately due and payable without any further action or notice.




     (b) Right of Entry. The Administrative Agent may, with or without process of
law, enter upon the Property, or any part thereof, and take exclusive and peaceful
possession of the Property and of all books, records, and accounts relating thereto and to
exercise without interference from the Mortgagor any and all rights which the Mortgagor has
with respect to the management, possession, operation, protection, or preservation of the
Property, including without limitation the right to make repairs and alterations to the
Property as the Administrative Agent deems necessary or desirable and the right to rent the
same for the account of the Mortgagor and to deduct from such Rents all costs, expenses, and
liabilities of every character incurred by the Administrative Agent in collecting such Rents
and in managing, operating, maintaining, protecting, or preserving the Property (including,
without limitation, altering or repairing the Property) and to apply the remainder of such
Rents in such manner as the Administrative Agent may elect. All such costs, expenses, and
liabilities incurred by the Administrative Agent in collecting such Rents and in managing,
operating, maintaining, protecting, or preserving the Property (including, without
limitation, altering or repairing the Property), if not paid out of Rents as hereinabove
provided, shall constitute a demand obligation owing by the Mortgagor and shall bear
interest from the date of expenditure until paid at the Default Rate, all of which shall
constitute a portion of the Secured Obligations . Upon such entry, the Mortgagor will pay
over to the Administrative Agent all security deposits and will cooperate in all reasonable
ways in the Administrative Agent’s collection of rents, including, without limitation,
execution of a written notice to each lessee or occupant directing that rent be paid
directly to the Administrative Agent. The Administrative Agent shall not be accountable for
more monies than it actually receives from the Property, nor shall it be liable for failure
to collect rents or enforce other obligations. The Administrative Agent reserves within its
own discretion the right to determine the method of collection and the extent to which
enforcement of collection of delinquent rents or the eviction of delinquent tenants is
prosecuted. Nothing in this Subsection 7.1(b) shall impose any duty, obligation, or
responsibility upon the Administrative Agent or any Secured Party for the control, care,
management, leasing, or repair of the Property, nor for the carrying out of any of the terms
and conditions of any Lease; nor shall it operate to make the Administrative Agent or any
Secured Party responsible or liable for any waste committed on the Property by the tenants
or by any other parties, or for any hazardous substances or environmental conditions on or
under the Property, or for any dangerous or defective condition of the Property or for any
negligence in the management, leasing, upkeep, repair, or control of the Property resulting
in loss or injury or death to any tenant, licensee, employee, or stranger. The Mortgagor
hereby assents to, ratifies, and confirms any and all actions of the Administrative Agent
with respect to the Property taken under this subsection. Entry under this Section shall
not operate to release the Mortgagor from any sums to be paid or covenants or agreements to
be performed under this Mortgage.



-16-









 






     (c) Foreclosure — Power of Sale. This Mortgage is upon the Statutory
Conditions, for any breach of which the Administrative Agent shall have the Statutory Power
of Sale. The Administrative Agent shall have the Statutory Power of Sale and, with or
without an entry as aforesaid, may sell the Property or any part or parts of the same,
either as a whole or in parts or parcels, together with any improvements that may be
thereon, by public auction in accordance with the statutes of the State of New Hampshire
relating to the foreclosure of a mortgage by the exercise of a Power of Sale, and may convey
the same by proper deed or deeds or bill or bills of sale to the purchaser or purchasers
absolutely and in fee simple; and such sale shall forever bar the Mortgagor and all persons
claiming under it from all right and interest in the Property, whether at law or in equity.
The Mortgagor covenants with the Administrative Agent that the Mortgagor, in case a sale
shall be made under the power of sale, will upon request execute, acknowledge and deliver to
the purchaser or purchasers a deed or deeds of release confirming such sale, and the
Administrative Agent is irrevocably appointed the Mortgagor’s attorney to execute and
deliver to said purchaser such a deed or deeds and a full transfer of all policies of
insurance on any of the Property at the time of such sale. In the event of foreclosure
sale, the Administrative Agent shall be entitled to retain one (1%) percent of the purchase
price in addition to the costs, charges and expenses allowed under the Statutory Power of
Sale and in addition to all other sums which the Administrative Agent may otherwise be
entitled to retain. In the event that the Administrative Agent in the exercise of the power
of sale herein given elects to sell in parcels, such sales may be held from time to time and
the power of sale shall not be exhausted until all of the Property shall have been sold.




     (d) Administrative Agent’s Judicial Remedies. The Administrative Agent may
proceed by suit or suits, at law or in equity, to enforce the payment of the Secured
Obligations to foreclose the liens and security interests of this Mortgage as against all
or any part of the Property, and to have all or any part of the Property sold under the
judgment or decree of a court of competent jurisdiction. This remedy shall be cumulative of
any other nonjudicial remedies available to the Administrative Agent under the Credit
Agreement, this Mortgage or the other Loan Documents. Proceeding with a request or
receiving a judgment for legal relief shall not be or be deemed to be an election of
remedies or bar any available non-judicial remedy of the Administrative Agent.




     (e) Administrative Agent’s Right to Appointment of Receiver. The Administrative
Agent may have a receiver appointed to enter and take possession of all or any portion of
the Property, collect the rents, issues and profits therefrom, and apply the same as the
court may direct, and the Administrative Agent shall be entitled to the appointment of such
a receiver as a matter of right, without consideration of the value of the Property as
security for the amounts due hereunder, or the availability of other collateral, or the
solvency of any person or other entity liable for the payment of such amounts. Such
receiver may also take possession of, and for these purposes use, any and all Equipment and
other personal property of the Mortgagor contained in or on any of the Property. The
expense (including receiver’s fees, counsel fees, costs and agents’ compensation) incurred
pursuant to the powers herein contained shall be secured hereby. The right to enter and
take possession of all or any portion of the Property, to manage and operate the same, and
to collect the rents, issues and profits thereof, whether by a receiver



-17-









 






or otherwise, shall be cumulative with any other right or remedy hereunder or afforded
by law, and may be exercised concurrently therewith or independently thereof. The
Administrative Agent or any such receiver shall be liable to account only for such rents,
issues and profits actually received by it, less the Administrative Agent’s or such
receiver’s costs and expenses, as aforesaid, and neither the Administrative Agent nor such
receiver shall be under any obligation to collect any such rents, issues and profits, nor
will the Administrative Agent or such receiver be liable to the Mortgagor for any other act
or omission upon such entry and taking possession of all or any portion of the Property.




     (f) Uniform Commercial Code Remedies. The Administrative Agent may exercise
all of the rights and remedies of a secured party under the Uniform Commercial Code with
respect to the Collateral, and the Administrative Agent may deal with same as Collateral
under the Uniform Commercial Code or as real property as provided in this Article, or in
part one and in part the other, to the extent permitted by law. Such rights shall include
the following:




          (i) The Administrative Agent may enter upon all or any portion of the Property and may
take possession of the Collateral or render the Collateral unusable by process of law or
peaceably without process of law. In such event the Mortgagor shall peacefully and quietly
yield up and surrender the Collateral and shall, upon request from the Administrative Agent,
assemble it and make it available to the Administrative Agent at a place designated by the
Administrative Agent that is reasonably convenient to the Mortgagor and the Administrative
Agent.




          (ii) The Administrative Agent may dispose of all or any part of the Collateral on the
Mortgagor’s premises or elsewhere without any liability to the Mortgagor for any damage
whatsoever; provided, however, that every aspect of any such disposition by the
Administrative Agent, including the method, manner, time, place and terms, must be
commercially reasonable. Notice given to the Mortgagor at least 10 days before an event
shall constitute reasonable notification of such event under the Uniform Commercial Code.
Any proceeds of any disposition of any of the Collateral may be applied by the
Administrative Agent to the payment of expenses in connection with the disposition of the
Collateral, including reasonable attorneys’ fees, and then to the other obligations secured
hereby, all in accordance with the Credit Agreement.




     (g) Leases. The Administrative Agent, with or without entry under this
Section, may collect and receive all rents accruing under any Lease of the Property or any
portion thereof, including amounts past due, as well as those accruing thereafter. In the
event of a foreclosure sale, neither the Administrative Agent nor any person claiming under
it shall have any obligation to account to the Mortgagor for any rents, issues or profits
accruing from the Property or any part thereof after such sale.




     (h) Other Rights. The Administrative Agent (i) may surrender the policies
maintained pursuant to this Mortgage or any part thereof and upon receipt shall apply the
unearned premiums as a credit on the Secured Obligations , and, in connection therewith, the
Mortgagor hereby appoints the Administrative Agent as the agent and attorney-in-fact



-18-









 







(which is coupled with an interest and is therefore irrevocable) for the Mortgagor to
collect such premiums.




     (i) Discontinuance of Remedies. In case the Administrative Agent shall have
proceeded to invoke any right, remedy, or recourse permitted under the Loan Documents and
shall thereafter elect to discontinue or abandon same for any reason, the Administrative
Agent shall have the unqualified right so to do and, in such event, the Mortgagor and the
Administrative Agent shall be restored to their former positions with respect to the Secured
Obligations , the Loan Documents, the Property or otherwise, and the rights, remedies,
recourses and powers of the Administrative Agent shall continue as if same had never been
invoked.




     (j) Remedies Cumulative. All rights, remedies, and recourses of the
Administrative Agent granted in the Credit Agreement, this Mortgage and the other Loan
Documents, any other pledge of collateral, or otherwise available at law or equity: (i)
shall be cumulative and concurrent; (ii) may be pursued separately, successively, or
concurrently against the Mortgagor, the Property, or any one or more of them, at the sole
discretion of the Administrative Agent; (iii) may be exercised as often as occasion therefor
shall arise, it being agreed by the Mortgagor that the exercise or failure to exercise any
of same shall in no event be construed as a waiver or release thereof or of any other right,
remedy, or recourse; (iv) shall be nonexclusive; (v) shall not be conditioned upon the
Administrative Agent exercising or pursuing any remedy in relation to the Property prior to
the Administrative Agent bringing suit to recover the Secured Obligations ; and (vi) in the
event the Administrative Agent elects to bring suit on the Secured Obligations and obtains
a judgment against the Mortgagor prior to exercising any remedies in relation to the
Property, all liens and security interests, including the lien of this Mortgage, shall
remain in full force and effect and may be exercised thereafter at the Administrative
Agent’s option.




     (k) Application of Proceeds. The proceeds from any sale, lease, or other
disposition made pursuant to this Mortgage, or the proceeds from the surrender of any
insurance policies pursuant hereto, or any Rents collected by the Administrative Agent from
the Property or proceeds from insurance which the Administrative Agent elects to apply to
the Secured Obligations pursuant to Article 3 hereof, shall be applied by the
Administrative Agent in accordance with the Credit Agreement.



     Section 7.2 No Waiver, etc. Any failure by the Administrative Agent to insist upon
the strict performance by the Mortgagor of any of the terms and provisions hereof shall not be
deemed to be a waiver of any of the terms and provisions hereof, and the Administrative Agent,
notwithstanding any such failure, shall have the right thereafter to insist upon the strict
performance by the Mortgagor of any and all of the terms and provisions of this Mortgage to be
performed by the Mortgagor. Neither the Mortgagor nor any other person now or hereafter obligated
for the payment of the whole or any part of the sums now or hereafter secured by this Mortgage
shall be relieved of such obligation by reason of the failure of the Administrative Agent to comply
with any request of the Mortgagor or by reason of the failure of the Administrative Agent to take
action to foreclose this Mortgage or otherwise enforce any of the provisions of this Mortgage or of
any obligations secured by this Mortgage, or by reason of the



-19-









 







release, regardless of consideration, of the whole or any part of the security held for the
indebtedness secured by this Mortgage, or by reason of any agreement or stipulation between any
subsequent owner or owners of all or any portion of the Property and the Administrative Agent
extending the time of payment or modifying the terms of any of the obligations secured hereby or
the terms of this Mortgage without first having obtained the consent of the Mortgagor or such other
person obligated as to the sums secured hereby, and, in the latter event, the Mortgagor and all
such other persons shall continue liable to make such payments according to the terms of any such
agreement of extension or modification unless expressly released and discharged in writing by the
Administrative Agent. Regardless of consideration, and without the necessity for any notice to or
consent by the holder of any subordinate lien on all or any portion of the Property, the
Administrative Agent may release the obligation of anyone at any time liable for any of the
indebtedness secured by this Mortgage or any part of the security held for such indebtedness and
may extend the time of payment or otherwise modify the terms of any of the obligations secured
hereby and/or this Mortgage without impairing or affecting the lien of this Mortgage or the
priority of such lien, as security for the payment of such indebtedness, as it may be so extended
or modified, over any subordinate lien. The Administrative Agent may resort for the payment of the
indebtedness secured hereby to any other security therefor held by the Administrative Agent in such
order and manner as the Administrative Agent may elect.



ARTICLE
8 — WAIVERS




     Section 8.1 Marshalling and Other Matters. The Mortgagor hereby waives, to the extent
permitted by law, the benefit of all appraisement, valuation, stay, extension, reinstatement and
redemption laws now or hereafter in force and all rights of marshalling in the event of any sale
hereunder of the Property or any part thereof or any interest therein. Further, the Mortgagor
hereby expressly waives any and all rights of redemption from sale under any order or decree of
foreclosure of this Mortgage on behalf of the Mortgagor, and on behalf of each and every person
acquiring any interest in or title to the Property subsequent to the date of this Mortgage and on
behalf of all persons to the extent permitted by applicable law.



     Section 8.2 Waiver of Notice. The Mortgagor shall not be entitled to any notices of
any nature whatsoever from the Administrative Agent except with respect to matters for which this
Mortgage specifically and expressly provides for the giving of notice by the Administrative Agent
to the Mortgagor and except with respect to matters for which the Administrative Agent is required
by applicable law to give notice, and the Mortgagor hereby expressly waives the right to receive
any notice from the Administrative Agent with respect to any matter for which this Mortgage does
not specifically and expressly provide for the giving of notice by the Administrative Agent to the
Mortgagor.



     Section 8.3 Waiver of Trial by Jury. THE MORTGAGOR HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS MORTGAGE OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). THE MORTGAGOR CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY



-20-









 







OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THE ADMINISTRATIVE AGENT IS HEREBY
AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER
BY THE MORTGAGOR.



ARTICLE
9 — MISCELLANEOUS




     Section 9.1 Governing Law; Jurisdiction. This Mortgage shall be governed by and
construed in accordance with applicable federal law and the laws of the state where the Property is
located, without reference or giving effect to any choice of law doctrine. The Mortgagor hereby
irrevocably submits to the jurisdiction of any court of competent jurisdiction located in the state
in which the Property is located in connection with any proceeding arising out of or relating to
this Mortgage.



     Section 9.2 Notices. All notices or other written communications hereunder shall be
given pursuant to Section 15 of the Subsidiary Guaranty.



     Section 9.3 No Oral Change. This Mortgage and any provisions hereof or thereof; may
not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act
or failure to act on the part of the Mortgagor or the Administrative Agent, but only by an
agreement in writing signed by the party against whom enforcement of any modification, amendment,
waiver, extension, change, discharge or termination is sought.



     Section 9.4 Liability. This Mortgage and each of the other Loan Documents to which
the Mortgagor is a party shall be binding upon and inure to the benefit of the Mortgagor and the
Administrative Agent and their respective successors and assigns forever.



     Section 9.5 Severability. If any term, covenant or condition of the Credit Agreement,
this Mortgage or any other Loan Document is held to be invalid, illegal or unenforceable in any
respect, the Credit Agreement, this Mortgage or such other Loan Documents shall be construed
without such provision.



     Section 9.6 Headings, Etc. The headings and captions of various Sections of this
Mortgage are for convenience of reference only and are not to be construed as defining or limiting,
in any way, the scope or intent of the provisions hereof.



     Section 9.7 Number and Gender. Whenever the context may require, any pronouns used
herein shall include the corresponding masculine, feminine or neuter forms, and the singular form
of nouns and pronouns shall include the plural and vice versa.



     Section 9.8 Entire Agreement. The Credit Agreement, this Mortgage and the other Loan
Documents constitute the entire understanding and agreement between the Mortgagor and the
Administrative Agent with respect to the transactions described herein and therein and supersede
all prior written or oral understandings and agreements between the Mortgagor and the



-21-









 







Administrative Agent and the Lenders with respect thereto. The Mortgagor hereby acknowledges
that, except as incorporated in writing in the Credit Agreement, this Mortgage and the other Loan
Documents, there are not, and were not, and no Persons are or were authorized by the Administrative
Agent or any Lender to make, any representations, understandings, stipulations, agreements or
promises, oral or written, with respect to the transaction which is the subject of the Credit
Agreement, this Mortgage and the other Loan Documents. In the event of any conflict or
inconsistency between this Mortgage and the Credit Agreement the provisions of the Credit Agreement
shall prevail.



     Section 9.9 Relationship of the Mortgagor and the Administrative Agent. The
relationship between the Mortgagor and the Administrative Agent is solely that of debtor and
creditor, and the Administrative Agent has no fiduciary or other special relationship with the
Mortgagor, and no term or condition of any of the Credit Agreement, this Mortgage and the other
Loan Documents shall be construed so as to deem the relationship between the Mortgagor and the
Administrative Agent to be other than that of debtor and creditor. The general partners, members,
principals and (if the Mortgagor is a trust) beneficial owners of the Mortgagor are experienced in
the ownership and operation of properties similar to the Property, and the Mortgagor and the
Administrative Agent are relying solely upon such expertise and business plan in connection with
the ownership and operation of the Property. The Mortgagor is not relying on the Administrative
Agent’s expertise, business acumen or advice in connection with the Property. By accepting or
approving anything required to be observed, performed or fulfilled or to be given to the
Administrative Agent pursuant to this Mortgage, the Credit Agreement or the other Loan Documents,
including without limitation, any officer’s certificate, balance sheet, statement of profit and
loss or other financial statement, survey, appraisal, or insurance policy, the Administrative Agent
shall not be deemed to have warranted, consented to, or affirmed the sufficiency, legality or
effectiveness of same, and such acceptance or approval thereof shall not constitute any warranty or
affirmation with respect thereto by the Administrative Agent.



     Section 9.10 Sole Discretion of the Administrative Agent. Wherever pursuant to this
Mortgage or the other Loan Documents the Administrative Agent exercises any right given to it to
approve or disapprove, or any arrangement or term is to be satisfactory to the Administrative
Agent, the decision of the Administrative Agent to approve or disapprove or to decide that
arrangements or terms are satisfactory or not satisfactory shall be in the sole discretion of the
Administrative Agent and shall be final and conclusive, except as may be otherwise expressly and
specifically provided herein.



     Section 9.11 Stated Maximum Amount. Notice is hereby given that for the purposes of
RSA Section 479:3, this Mortgage secures a maximum amount equal to the principal sum of
$123,303,400.23, plus accrued interest thereon, plus advances, if any, to protect the security of
this mortgage, plus foreclosure costs and expenses, including attorney’s fees, if any, plus any
other costs and expenses authorized by the Mortgage or the aforesaid notes.



     Section 9.12 Last Dollar Secured. This Mortgage secures only a portion of the
Secured Obligations owing or which may become owing by the Mortgagor to the Secured Parties. The
parties agree that any payments or repayments of the Secured Obligations shall be and be deemed to
be applied first to the portion of the Secured Obligations that is not secured hereby, it



-22-









 







being the parties’ intent that the portion of the Secured Obligations last remaining unpaid
shall be secured hereby.



     This Mortgage is also upon the STATUTORY CONDITIONS, for any breach of which, or for any
breach of any other of the covenants, conditions, agreements and obligations of the Mortgagor
herein contained, or upon the occurrence of any of the events specified as an Event of Default in
this Mortgage or if the whole of the principal sum of and the interest on the Secured Obligations
shall become due, the Administrative Agent shall have the STATUTORY POWER OF SALE, which is hereby
incorporated by reference, and other foreclosure rights under the laws of the State or States in
which the Property is located.



(BALANCE OF PAGE INTENTIONALLY LEFT BLANK;

SIGNATURE PAGE FOLLOWS)




-23-









 









     IN WITNESS WHEREOF, the Mortgagor has duly executed this Mortgage as an instrument under seal
as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	O.L. DEVELOPMENT,
INC.
 	 	 
	 

	 	By:	 	/s/ John A. Kelly	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	John A. Kelly, Vice President and Treasurer	 	 






STATE OF Arizona




COUNTY OF
Maricopa




     The
foregoing instrument was acknowledged before me this 30 day of November, 2007, by John
A. Kelly, as Vice President and Treasurer of O.L. Development, Inc.



	 	 	 	 	 
	 

	 	/s/ Sandra K. Weeks

	 	 	 
	 

	 	Notary Public/Justice of the Peace

	 

	 	My commission expires: 4-11-09
	 

	 	 	 	 
	 

	 	Print Notary Public’s Name: Sandra K. Weeks 
	 

	 	 	 	 
	 

	 	[Notary Seal, if any]	 	 






[Signature Page for New Hampshire Mortgage]




 









 








EXHIBIT A




Legal Description



The land, with the buildings and improvements now or hereafter located thereon, located in the City
of Rochester, County of Strafford, State of New Hampshire and bounded and described as follows:




(See attached legal description)