EXHIBIT 10.2: Form of Prommisory Note
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY
APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR OTHERWISE TRANSFERRED, IN WHOLE OR IN PART, ABSENT REGISTRATION
OR AN APPLICABLE EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND ALL
APPLICABLE STATE SECURITIES LAWS.
PROMMISORY NOTE
$ 800,000
December ___, 2012
Old Bethpage, New York
FOR VALUE RECEIVED, the undersigned, XX Xxxxxxxxx Solar, LLC, a
Massachusetts limited liability company (hereinafter referred to as
"Borrower") promises to pay to the order of
Xxxxxx Bay Partners, LP, a New York limited partnership (the "Lender"),
at its principal office for the transaction of business at 000 Xxxxxxx
Xxxx, Xxx Xxxxxxxx, XX 00000 or order, or at such other place as the
holder of this Note may from time to time designate in writing, in lawful
money of the United States of America and in the manner hereinafter
provided, the principal sum of Eight Hundred Thousand Dollars ($800,000)
(the "Principal Sum") with interest thereon or such part thereof as shall
remain unpaid hereunder at the rate hereinafter set forth, in lawful money
of the United States of America, together with all sums which now or
hereafter become due and owing hereunder or under that certain Mortgage,
Security Agreement, and Assignment of Leases and Rents dated as of the
date hereof by Xxxxxxxx in favor of Xxxxxx (the "Mortgage"). This Note is
secured by the Mortgage, filed with the Essex County South Registry of
Deeds on or about the date hereof, on certain property owned by the
Borrower and located in Salisbury, Essex County, Massachusetts (the
"Property").
Payments under this Note shall be made as follows:
(a) Interest only, at the rate of 5.0% per annum, on all or such
part of the Principal Sum as shall be outstanding from time to time, shall
accrue and shall thereafter be paid on June 30, 2013 ("Maturity Date").
(b) Provided that no default exists under the Note or Mortgage,
the Borrower may extend the Maturity Date to December 31, 2013 (the
"Extended Maturity Date") by providing Lender ten (10) day's written
notice. If so extended, payments will be due on an interest only basis,
at the rate of 8.5% per annum, on all or such part of the Principal Sum as
shall be outstanding from time to time, and shall be paid on the Extended
Maturity Date. If any part of the Principal Sum is prepaid early,
interest payments shall be appropriately prorated.
(c) The entire Principal Sum, together with unpaid interest
thereon and all other sums due hereunder or under the Mortgage, shall, if
not sooner paid by the Borrower, be due and payable on the Maturity Date
or the Extended Maturity Date, if applicable.
This Note is prepayable in whole, or in principal increments of
$5,000, by the Borrower without penalty at any time, provided, that on any
such prepayment date, the Borrower pays all interest that has accrued on
the principal amount being prepaid on such date.
Interest shall be calculated on the basis of a three hundred sixty
five (365) day year, but interest shall accrue for the actual number of
days elapsed. Notwithstanding any other provision of this Note, the holder
hereof does not intend to charge and the Borrower shall not be required to
pay any interest or other fees or charges in excess of the maximum
permitted by applicable law; any payments in excess of such maximum shall
be refunded to the Borrower or credited to reduce principal hereunder.
If any default shall occur in the payment of any amount or the
performance of any of the obligations, agreements, undertakings, covenants
or conditions contained in this Note or the Mortgage, continuing beyond,
in each case, any applicable grace period that may be provided herein or
therein, as applicable, for the payment of such amount or the performance
of such term, agreement, covenant or condition (each an "Event of
Default"), then, at the option of the holder of this Note, without further
notice or demand to the Borrower, the entire indebtedness evidenced
hereby, with interest accrued thereon, shall become forthwith due and
payable, and no omission on the part of the holder hereof to exercise such
option when entitled to do so shall be construed as a waiver of such
right.
Upon the occurrence of an Event of Default under this Note or an
Event of Default as defined in the Mortgage, in addition to the rights,
powers and remedies available to Lender, interest on all outstanding
amounts due including principal and interest unpaid shall accrue and be
payable at the Default Rate of eighteen percent (18%) per annum (the
"Default Rate") without the necessity of any action by Xxxxxx. Interest
accruing at the Default Rate shall be payable to Lender on demand. Lender
shall not be required to accelerate the maturity any money owed or
exercise any other rights or remedies under any document, in order for the
Default Rate to be imposed.
The Borrower may not assign any of its obligations hereunder without
the prior written consent of the holder of this Note. The payment terms
and other obligations, agreements, undertakings, covenants and conditions
contained in this Note shall be binding on the Borrower and its
successors, permitted assigns and legally appointed representatives (and
all endorsers and guarantors of this Note, and all other persons or
entities now, or at any time, liable, whether primarily, secondarily or
otherwise, for payment of the indebtedness hereby evidenced or for the
performance of any of the other obligations, agreements, undertakings,
covenants or conditions contained herein, for themselves and their heirs,
successors, assigns and legally appointed representatives, respectively).
The Borrower (on behalf of itself, its successors, permitted assigns
and legally appointed representatives and all endorsers and guarantors of
this Note, and all other persons or entities now, or at any time, liable,
whether primarily, secondarily or otherwise, for payment of the
indebtedness hereby evidenced or for the performance of any of the other
obligations, agreements, undertakings, covenants or conditions contained
herein, for themselves, their heirs, successors, assigns and legally
appointed, representatives, respectively) agrees to pay all costs of suit
and other expenses of collection, including reasonable fees of attorneys
at the trial and all appellate levels, as they come due, in the event that
this Note is placed in the hands of any attorney for collection or suit is
brought thereon.
The Borrower (on behalf of itself, its successors, permitted assigns
and legally appointed representatives and all endorsers and guarantors of
this Note, and all other persons or entities now, or at any time, liable,
whether primarily, secondarily or otherwise, for payment of the
indebtedness hereby evidenced or for the performance of any of the other
obligations, agreements, undertakings, covenants or conditions contained
herein, for themselves, their heirs, successors, assigns and legally
appointed representatives, respectively) waives presentment, protest and
demand, notice of protest, demand and dishonor and non-payment of this
Note, and to the extent permitted by law, waive and release all rights of
redemption, valuation, appraisement, notice of election to mature or to
declare due the whole of the indebtedness evidenced hereby, errors,
defects and imperfections in any proceedings instituted by the holder
under the terms of any document, all benefits that might accrue to the
Borrower by virtue of any present or future laws exempting any collateral
given by the Borrower or any guarantor to secure the performance of the
Borrower's obligations hereunder, or any part of the proceeds arising from
any sale of any such collateral, from attachment, levy, or sale under
execution, or providing for any stay of execution, exemption from civil
process, or extension of time for payment, and the Borrower (on behalf of
itself, its successors, permitted assigns and legally appointed
representatives and all endorsers and guarantors of this Note, and all
other persons or entities now, or at any time, liable, whether primarily,
secondarily or otherwise, for payment of the indebtedness hereby evidenced
or for the performance of any of the other obligations, agreements,
undertakings, covenants or conditions contained herein, for themselves,
their heirs, successors, assigns and legally appointed representatives,
respectively), agrees that liability hereunder or under any other document
shall remain unimpaired, notwithstanding any extension of the time of
payment or other indulgence granted by the holder hereof, or the release
of all or any part of such security or the liability of any party which
may assume the obligation to make payment of the indebtedness evidenced
hereby. In no event shall the holder, by any act or omission, be deemed
to waive any of its rights or remedies hereunder unless such waiver shall
be in writing and signed by the holder, and then only to the extent
specifically set forth therein; and a waiver of any one event shall not be
construed as continuing or as a bar to or waiver of such right or remedy
in respect of a subsequent event.
Wherever notice, demand or a request may be given under this Note to
the Borrower, the same shall always be sufficient if in writing and hand
delivered, deposited in the United States mails by registered or certified
mail or delivered to a recognized private express delivery service for
overnight delivery, addressed to the Borrower at 000 Xxxxxxx Xxxx, Xxx
Xxxxxxxx, XX 00000, or to such other address as may be provided by
Borrower (or its successors, permitted assigns or legally appointed
representatives) to Lender.
Any such notice, demand or request shall be treated as having been given
upon hand delivery to such address or three (3) business days after
deposit in the United States mails or delivery to such delivery service.
Wherever notice may be given under this Note to the holder, the same may
be given by any one Authorized Representative (as hereinafter defined) of
the Borrower and the holder will be entitled to rely on any such notice
as fully and effectually as if such notice has been given by the Borrower.
An "Authorized Representative" of the Borrower shall mean any individuals
hereafter designated by notice to the holder signed by the Borrower:
If any provisions hereof or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the
remainder hereof, or the application of such provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each provision hereof
shall be valid and in force to the fullest extent permitted by law.
This Note shall be governed by and construed in accordance with the
laws of the State of New York, but not including the choice of law rules
thereof, and shall take effect as a sealed instrument. The parties hereby
submit to the exclusive jurisdiction of the State and Federal Courts
sitting in and for the City and County of New York, New York in respect of
any and all actions arising under this Agreement, and waive any objections
or challenges to personal jurisdiction, venue or the convenience of forum
in any such actions brought in any such court.
IN WITNESS WHEREOF, the Borrower has caused this Note to be
executed, as of the day and year first above written.
XX XXXXXXXXX SOLAR, LLC
/s/ Xxxx Xxxxxx
By: Xxxx Xxxxxx
Title: Manager
