EXHIBIT 10.1: Form of Mortgage Agreement
MORTGAGE, SECURITY AGREEMENT
AND ASSIGNMENT OF LEASES AND RENTS
This Mortgage, Security Agreement and Assignment of Leases and Rents
from XX Xxxxxxxxx Solar, LLC, a Massachusetts limited liability company
with an address at 000 Xxxxxxx Xxxx, Xxx Xxxxxxxx, XX 00000 (hereinafter
referred to as "Mortgagor") to Xxxxxx Bay Partners, LP, a New York limited
partnership, having its principal office for the transaction of business
at 000 Xxxxxxx Xxxx, Xxx Xxxxxxxx, XX 00000 (hereinafter referred to as
"Mortgagee").
Reference is made to the following facts:
WHEREAS, the Mortgagor has executed and delivered its promissory note (the
"Note") of even date herewith, payable to the order of the Mortgagee, in
the principal sum of eight hundred thousand Dollars ($800,000) with
interest and any other charges thereon, payable as provided in the Note;
and
WHEREAS, the Mortgagor is the owner of certain real property located in
Salisbury, Massachusetts more particularly described on Exhibit A hereto
(the "Property"); and
WHEREAS, the Mortgagor is "Lessor" under that lease agreement dated
December 1, 2011, between True North, LLC ("True North") and True North
Energy, LLC ("True North Energy") (the "Solar Lease" a copy of which has
been provided to Mortgagee), pursuant to an Assignment of Lease Agreement
dated December [ ] 2012, whereby Mortgagor succeeded to the interests
and obligations of True North as lessor under the Solar Lease. CD US Solar
MT 1, LLC succeeded to the interests and obligations of True North Energy
as lessee under the Solar Lease via an assignment dated September 4, 2012;
and
WHEREAS, the Mortgagor desires to secure the following obligations (the
"Obligations") of the Mortgagor to the Mortgagee:
(i) the payment of the principal sum, interest, charges and other
indebtedness evidenced by the Note, including any extensions,
renewals, replacements and amendments thereof; and
(ii) the payment, performance, discharge and satisfaction of every
covenant, agreement, warranty, representation, undertaking, term and
condition contained herein, in the Note, in the Guaranty of even
date executed and delivered by Power REIT and in the other Loan
Documents, and any amendment, extension, modification, replacement
or re-casting of any one or more of the Loan Documents. "Loan
Documents" shall mean this Mortgage Agreement, the Note, the Power
REIT guarantee and all other documentsor filings required to effect
the transactions contemplated herein.
NOW, THEREFORE, to secure the Obligations and for consideration provided,
the Mortgagor hereby irrevocably gives, bargains, sells, confirms and
grants a security interest to the Mortgagee, in the Mortgagor's entire
right, title and interest in and to (i) the land located in Salisbury,
Massachusetts, described in Exhibit A attached hereto and incorporated by
reference herein, and any buildings and improvements, now or hereafter
situated thereon and owned by the Mortgagor, together with all of
Mortgagor's right, title and interest in and to:
(a) All rights, licenses, easements now or hereafter appurtenant
thereto, and all other rights of the Mortgagor of whatever kind or
nature, whether running covenants or otherwise now or hereafter
appurtenant thereto; and
(b) Any other estate, title or interest in such land or such
buildings and improvements, and in the streets and ways adjacent
thereto, to the extent now owned or hereafter acquired by the
Mortgagor; and
(c) All leases now existing or hereafter entered into by the
Mortgagor with respect to such land, buildings and improvements, and
all the rents, issues, profits, revenues, and other income received
or receivable by the Mortgagor under and by virtue of such leases,
including without limitation, the Solar Lease; and
(d) All fixtures, equipment, machinery, furnishings and articles
of personal property of every kind and nature whatsoever, tangible
or intangible, now or hereafter located on the above-described land
or used or to be used in connection with the construction,
operation, maintenance, management and sales or leasing of the
improvements presently located thereon or proposed to be constructed
thereon, whether now owned or hereafter acquired by the Mortgagor,
including, without limitation, all bank accounts in Borrower's name
and cash balances in such bank accounts, whether currently in
existence or hereinafter opened; and
(e) All proceeds of the conversion, voluntary or involuntary, of
all or any portion of the above-described property into cash,
negotiable instruments or other instruments for the payment of
money, chattel paper, security agreements, documents or liquidated
claims, including, without limitation, all insurance proceeds and
all awards arising out of eminent domain proceedings or other
proceedings similar thereto.
The above-described land, buildings and improvements, and other rights
described in (a), (b) and (c) above, together with any and all additions
thereto or replacements thereof, and together with all such property
described in (d) and (e) above, insofar as such property is, or can by
agreement of the parties be made, a part of the realty, are herein
referred to as the "Real Estate". All such property described in (d) and
(e) above is hereinafter referred to as the "Collateral". The Collateral
and the Real Estate are collectively referred to as the "Property," or
such portion thereof as is appropriate to the context in which the term
"Property" is used.
TO HAVE AND TO HOLD the above granted and bargained Property, with the
privileges and appurtenances thereof, unto Mortgagee, its successors and
assigns, forever, to its and their proper use and behoof forever.
The Mortgagor covenants, warrants and agrees with the Mortgagee as
follows:
1. Payment and Performance of Obligations. The Mortgagor shall make
all payments and perform all obligations, agreements, undertakings and
covenants under the Note and this Mortgage.
2. Mortgagor's Covenants. The Mortgagor shall:
(a) pay, before the same become delinquent, all taxes, charges,
sewer use fees, water rates and assessments related to the
Property;
(b) maintain liability insurance in form and substance reasonably
acceptable to the Mortgagee, which insurance shall have a limit
of at least $2,000,000 per occurrence, and maintain such other
insurance as is appropriate for similar properties leased to
solar projects and name Mortgagee as additional insured thereon;
(c) not commit waste on the Property;
(d) not introduce or release, or permit any of its partners
agents, employees, invitees or contractors to introduce or
release, any hazardous wastes or hazardous substances onto the
Property, and shall remove in accordance with applicable law any
such hazardous wastes or substances that come to be located on
the Property as a result of the actions of the Mortgagor, its
partners, agents, employees, invitees, or contractors. Mortgagor
shall have no obligations or liability under this section with
respect to the actions of Mortgagee or any other parties;
(e) perform any and all obligations of lessor under the Solar
Lease, enforce all obligations of lessee under the Solar Lease,
and not amend, modify or terminate the Solar Lease;
(f) so long as any amounts remain outstanding and unpaid under the
Loan Documents, not make any distributions to its member(s); and
(g) not incur any indebtedness, other than trade payables in the
ordinary course of its business outstanding not more than thirty
(30) days.
3. Priority of Lien. The Mortgagor shall not cause any attachments,
lis pendens or mechanics', materialmen's or other liens or encumbrances of
any kind to attach to the Property after the date hereof, whether such
liens or encumbrances be prior or subordinate to this Mortgage. Without
limitation, the Mortgagor shall pay and discharge all claims for labor
done and material and services furnished to or performed upon the Property
alleged to have been furnished to or for Mortgagor, and shall take all
other steps necessary to prevent the assertion of claims of liens against
the Property or any part thereof or any right or interest therein.
Nothing herein contained shall require the Mortgagor to pay any claims for
labor, materials, or services that the Mortgagor in good faith disputes
and that the Mortgagor, at its own expense, is currently and diligently
contesting; provided, however, that the Mortgagor shall, not later than
thirty (30) days after Mortgagor's receipt of notice, or Mortgagor's
acquiring actual knowledge, whichever occurs earlier, of the filing of any
claim of lien that is disputed or contested by Mortgagor with respect to
the Property, post a bond sufficient to dissolve or release such claim of
lien, or take such other action as may be requested or approved by the
Mortgagee to dissolve or release such claim of lien. Mortgagor agrees to
indemnify Mortgagee with respect to any loss cost or damages sustained by
Mortgagee (including, without limitation, reasonable attorneys' fees to be
paid as incurred) as a result of Mortgagee's failure to comply with the
provisions of this Section.
4. Eminent Domain Proceeds.
Immediately upon obtaining knowledge of the institution of any
proceedings for the condemnation of all or any part of the Property or the
whole or any part of the buildings, structures and improvements located on
the Real Estate, Mortgagor will notify Mortgagee of the pendency of such
proceedings. Mortgagee may participate in any such proceedings, and
Mortgagor shall from time to time deliver to Mortgagee all instruments or
documents requested by it to permit such participation. Mortgagor shall,
at its expense, diligently prosecute any such proceeding and shall consult
with the Mortgagee, its attorneys and experts and cooperate with them in
any defense of any such proceedings.
The awards of damages on account of any condemnation for public use
of or injury to the Property shall be paid to the Mortgagee; such awards
shall, at the option of the Mortgagee, be applied to or toward the
indebtedness secured by this Mortgage in such order as the Mortgagee may
determine.
5. Events of Default. The occurrence of any of the following events
shall be deemed an "Event of Default" or "Default" hereunder:
(a) failure of the Mortgagor to make any payment of principal,
interest or other charges when due under the Note (whether at
maturity or by call or acceleration) or any other payment of funds
due hereunder which failure continues for three (3) business days or
more after notice from the Mortgagee to the Mortgagor; or
(b) the termination of the Solar Lease; or
(c) the occurrence of any Events of Default as defined under
Article 15.1 of the Solar Lease; or
(d) any material payment default by Power REIT, a Maryland real
estate investment trust ("Guarantor"), on any of its payment
obligations with respect to borrowed money, which default remains
uncured after any applicable notice and cure periods; or
(d) Guarantor experiences a Change in Control, as defined by
paragraph 2.10 of the Power REIT 2012 Equity Incentive Plan as
publicly filed with the Securities and Exchange Commission on Form
DEF 14A on April 30, 2012; or
(e) breach of any other term, obligation, covenant, agreement,
undertaking, condition, provision, representation or warranty
contained in this Mortgage, remaining uncured for a period greater
than thirty (30) days, provided that, if any such default cannot
reasonably be remedied within thirty (30) days after written notice
of such default to Mortgagor, then provided Mortgagor commences to
cure the same within such thirty (30) day period and proceeds
thereafter with due diligence to completion, Mortgagor shall have
the additional time reasonably necessary to remedy same; or
(f) if Borrower or Guarantor shall make an assignment for the
benefit of creditors; if a receiver, liquidator or trustee shall be
appointed for Borrower or Guarantor or if Borrower or Guarantor
shall be adjudicated a bankrupt or insolvent, or if any petition for
bankruptcy, reorganization or arrangement pursuant to federal
bankruptcy law, or any similar federal or state law, shall be filed
by or against, consented to, or acquiesced in by, Borrower or
Guarantor, or if any proceeding for the dissolution or liquidation
of Borrower or Guarantor shall be instituted; provided, however, if
such appointment, adjudication, petition or proceeding was
involuntary and not consented to by Borrower or Guarantor, upon the
same not being discharged, stayed or dismissed within sixty (60)
days following its filing; or
(g) if any of the membership interests in Mortgagor become vested
in any person or entity other than Guarantor, or if Guarantor
pledges or collaterally assigns any of such membership interests.
6. Remedies. Upon the occurrence of an Event of Default, the Mortgagee
shall have the right to exercise the STATUTORY POWER OF SALE, without
limiting the same right, the Mortgagee may also, or in the alternative
(but shall not be required), at its option and without notice, exercise
any or all of the following remedies:
(a) declare the entire indebtedness of the Mortgagor immediately
due and payable without notice;
(b) either in person or by agent, with or without bringing any
action or proceeding, in so far as such action may be allowed under
the laws of the Commonwealth of Massachusetts, enter upon and take
possession of the Property, or any part thereof, in its own name, to
operate, manage and control the Property and conduct the business
thereof and do any acts which it deems necessary or desirable to
preserve the value, marketability or rentability of the Property, or
part thereof or interest therein, increase the income therefrom or
protect the security hereof. The entering upon and taking
possession of the Property shall not cure or waive any default or
notice of default hereunder;
(c) take such steps to protect and enforce its rights whether by
action, suit or proceeding in equity or at law for the specific
performance of any covenant, condition or agreement in the Note,
this Mortgage, or the other Loan Documents, or in aid of the
execution of any power herein granted, or for any foreclosure
hereunder, or for the enforcement of any other appropriate legal or
equitable remedy or otherwise as the Mortgagee shall elect;
(d) exercise any and all of the rights and remedies of a secured
party under the Massachusetts Uniform Commercial Code; and
(e) take such other actions or proceedings as the Mortgagee deems
necessary or advisable to protect its interest in the Property.
In addition to the foregoing remedies, after the happening of any
Event of Default and during its continuance, or upon the commencement of
any proceedings to foreclose this Mortgage or to enforce the specific
performance hereof or in aid thereof or upon the commencement of any other
judicial proceeding to enforce any right of the Mortgagee, the Mortgagee
shall be entitled, as a matter of right, if it shall so elect, without the
giving of notice to any other party and without regard to the adequacy or
inadequacy of any security for the Obligations, forthwith either before or
after declaring the unpaid principal of the Note to be due and payable,
consent to the appointment of a receiver or receivers of the Property or
any part thereof and of all the earnings, revenues, rents, issues, profits
and income thereof. Notwithstanding the appointment of any receiver,
liquidator or trustee of the Mortgagor, or of any of its property, or of
the Property or any part thereof, the Mortgagee shall be entitled to
retain possession and control of all property now or hereafter held under
this Mortgage.
The Mortgagee may, at the Mortgagee's option, foreclose this
Mortgage for any portion of the debt or any other sums secured hereby
which are then due and payable, subject to the continuing lien of this
Mortgage for the balance of the secured debt not then due.
Such remedies shall continue until all such Events of Default have
been cured by Mortgagor and all foreclosure or other proceedings which
shall have been commenced are completed, and such remedies may be
exercised individually, sequentially or in concert. All of the rights and
remedies of the Mortgagee set forth in this Mortgage and the Loan
Documents are cumulative and not exclusive of one another and may be
exercised in any order, and the exercise of one shall not be construed to
be a waiver of any of the others. Such remedies are also cumulative and
not exclusive of any and all other remedies now or hereafter available to
the Mortgagee under any law or in equity or otherwise. The resort to any
remedy provided for hereunder or under any other instrument given in
connection with the financing arrangement secured hereby or provided for
by law shall not prevent the concurrent or subsequent employment of any
other appropriate remedy or remedies. No delay or omission to exercise
any right or power shall impair such right or power or constitute a waiver
of any Default or Event of Default or acquiescence therein; and each such
right and power may be exercised as often as deemed expedient.
6. Subrogation.
Should the proceeds of the Note or any part thereof, or any amount
paid or advanced hereunder by Mortgagee, be used directly or indirectly to
pay off, discharge or satisfy, in whole or in part, any lien or
encumbrance upon the Property on a parity with or superior to the lien
hereof, then as additional security hereunder, the Mortgagee shall be
subrogated to any and all rights, equal or superior titles, liens and
equities owned or claimed by any owner or holder of said outstanding
liens, charges and indebtedness, regardless of whether said liens, charges
and indebtedness are acquired by assignment or have been released of
record by the holder thereof upon payment.
7. Notice. Wherever notice, demand or a request may properly be given
to the Mortgagor under this Mortgage, the same shall always be sufficient
to serve as a notice, demand or request hereunder if in writing and (i)
hand delivered, (ii) delivered to a recognized private express delivery
service for overnight delivery or (iii) posted in the United States mail
by registered or certified mail, return receipt requested, addressed in
any such case to the Mortgagor at the address given in this Mortgage as
the Mortgagor's address or to the business address of the Mortgagor last
known to the Mortgagee hereof. Any such notice, demand or request shall
be treated as having been given upon hand delivery to such address or
three (3) days after deposit with such delivery service or the United
States mails. A notice so addressed shall always be a sufficient notice,
notwithstanding a change in the ownership of the equity of redemption of
the Real Estate, whether or not consented to by the Mortgagee. Where more
than one person constitutes the Mortgagor, one notice sent to the address
given in this Mortgage as the Mortgagor's address or the last known
business address of any one of them shall constitute sufficient notice to
all.
8. Mortgagee's Right to Cure Default. If there shall be any breach in
any condition or covenant of this Mortgage, the Mortgagee shall have the
right, but without any obligation so to do, to cure such default for the
account of the Mortgagor and, to the fullest extent permissible according
to law, apply any funds credited by or due from the Mortgagee to the
Mortgagor against the same (without any obligation first to enforce any
other rights of the Mortgagee, including, without limitation, any rights
under the Note or this Mortgage, or any guarantee thereof, and without
prejudice to any such rights). Without limiting the generality of the
foregoing, the Mortgagor hereby authorizes the Mortgagee to pay all taxes,
sewer use fees, water rates and assessments, with interest, costs and
charges accrued thereon, which may at any time be a lien upon the
Property, or any part thereof; or to incur and pay reasonable expenses in
protecting its rights hereunder and the security hereby granted; to pay
any balance due under any security agreement on any articles, fixtures and
equipment included as a part of the Property; and the payment of all
amounts so expended or incurred shall be considered advances under the
Note and shall be secured hereby as fully and effectively as any other
obligation of the Mortgagor secured hereby; and, to the fullest extent
permissible according to law, to apply to any of these purposes or to the
repayment of any amounts so paid by the Mortgagee any sums paid on the
Note or this Mortgage by the Mortgagor as interest or otherwise.
9. Indemnification.
(a) Mortgagor hereby agrees that it will indemnify and hold
harmless the Mortgagee, its affiliates, and all of their
respective directors, officers, employees, agents, general
partners, controlling persons and heirs (each such person being
an " Indemnified Party") from and against any and all losses,
claims, damages, expenses and liabilities, joint or several,
incurred by such Indemnified Party (or which may be claimed
against them by any person or entity whatsoever), as and when
incurred, (including counsel fees and expenses), by reason of or
in connection with (A) the execution, delivery, lending of
monies, administration or enforcement of this Mortgage or the
Note or any of the other Loan Documents (including any and all
remedies available to Mortgagee), (B) the execution and delivery
or transfer of, or payment or failure to pay under, this
Mortgage, the Note, or any of the other Loan Documents, (C) any
breach by Mortgagor of any of the provisions of this Mortgage,
the Note, or any of the other Loan Documents, or (D) any instance
of bad faith, willful or reckless misconduct or gross negligence
on the part of Mortgagor or its principals or agents; provided,
however, that Mortgagor will not be liable to the extent that any
loss, claim, damage, expense or liability is found by a court of
competent jurisdiction to have resulted from Mortgagee's bad
faith, willful or reckless misconduct or gross negligence.
(b) If any action shall be brought against an Indemnified Party in
respect of which indemnity may be sought against, such
Indemnified Party shall promptly notify Mortgagor in writing, and
Mortgagor shall promptly assume the defense thereof, including
the retention of counsel reasonably satisfactory to Indemnified
Party, the payment of all fees and expenses and the right to
negotiate and consent to settlement. Such Indemnified Party shall
have the right to employ separate counsel in any such action and
to participate in the defense thereof, and at such Indemnified
Party's option to exclude Mortgagor and its counsel from such
defense, and the fees and expenses of such Indemnified Party's
counsel shall be at the expense of Mortgagor. Mortgagor shall
not be liable for any settlement of any such action effected
without its consent by an Indemnified Party, but if settled with
the consent of Mortgagor or if there is a final judgment for the
plaintiff in any such action against an Indemnified Party, with
or without the consent of Mortgagor, Mortgagor agrees to
indemnify and hold harmless each such Indemnified Party to the
maximum extent provided herein. Mortgagor shall not effect any
settlement of any pending or threatened proceeding in respect of
which any Indemnified Party is or could be a party and indemnity
could be sought hereunder by such Indemnified Party, without the
prior written consent of such Indemnified Party, unless such
settlement includes an unconditional release of such Indemnified
Party from all liability on all claims that are or could be the
subject matter of such proceeding.
(c) The provisions of this section shall be in addition to any
recourse either party may have against the other party at common
law or otherwise, and shall survive the term or complete payoff
of this Mortgage and/or the Note or any of the other Loan
Documents. For purposes of this Section, an "affiliate" of a
specified person shall mean a person that (directly or indirectly
through one or more intermediaries) controls, or is controlled
by, or is under common control with, the specified person.
11. Miscellaneous.
(a) Any provision contained in this Mortgage, the Note or
elsewhere notwithstanding, the Mortgagee shall not be entitled to
receive or collect, nor shall the Mortgagor be obligated to pay,
interest on any of the monies secured hereby in excess of the
maximum rate of interest permitted by the laws of the jurisdiction
applicable thereto, and if any such provision shall ever be
construed or held to permit the collection or to require the payment
of any amount of interest in excess of that permitted by the laws of
the jurisdiction applicable thereto, the provisions of this
paragraph shall control and shall override any contrary or
inconsistent provision in this Mortgage, the Note or elsewhere. The
intention of the parties is to conform strictly to applicable usury
laws and every instrument relating to payment of any of the monies
secured hereby shall be held subject to reduction to the amount
allowed under said usury laws as construed by the courts having
jurisdiction.
(b) All of the Mortgagee's rights and remedies set forth in this
Mortgage and the Loan Documents are cumulative and not exclusive of
one another and may be exercised in any order, and the exercise of
one shall not be construed to be a waiver of any of the others.
Such remedies are also cumulative and not exclusive of any and all
other remedies available to the Mortgagee.
(c) If the Mortgagee shall have proceeded to invoke any
right, remedy or recourse permitted under this Mortgage or any other
obligation of the Mortgagor, and shall thereafter elect to
discontinue or abandon the same for any reason, the Mortgagee shall
have the unqualified right to do so and in such event the Mortgagor
and the Mortgagee shall be restored to their former positions with
respect to the Obligations. In such case this Mortgage, all other
obligations, and all rights, remedies and recourse of the Mortgagee
shall continue as if the same had not been invoked.
(d) No waiver at any time of any of the provisions or
conditions of this Mortgage or of any other obligation of the
Mortgagor shall be construed as a waiver of any other of the
conditions or provisions of this Mortgage or of any of such
obligations, nor shall such waiver in any instance be construed as a
waiver of the same provision or condition in other or subsequent
instances. A consent or approval given by the Mortgagee in one
instance shall not render such consent or approval unnecessary in
future instances.
(e) This Mortgage may not be waived, changed or discharged
orally, but only by an agreement in writing and signed by the party
against whom enforcement of any waiver, change or discharge is
sought and any oral waiver, change or discharge of any provision of
this Mortgage by a representative of any party shall be without
authority and of no force and effect.
(f) If any term or provision of this Mortgage or the
application thereof to any person or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of this Mortgage
and the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Mortgage shall be valid and shall be enforced to
the fullest extent permitted by law.
(g) Paragraph headings in this Mortgage are for convenience and
reference only and the words and phrases contained therein shall in
no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of any of the provisions
herein.
(h) This Mortgage 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. 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 such courts. Notwithstanding
the foregoing, the creation, perfection, and enforcement of the lien
created hereby shall be governed by the laws of the Commonwealth of
Massachusetts to the extent necessary to enforce the provisions of
this Mortgage.
(i) The word "Mortgagor", as used herein, shall mean the person or
persons named at the beginning of this instrument as the Mortgagor,
its successors and permitted assigns, any subsequent owner or owners
of the equity of redemption of the Real Estate, and any guarantor,
jointly and/or severally, of the obligations of the Mortgagor
hereunder or under the other Loan Documents. Where more than one
person constitutes the Mortgagor, provisions in this Mortgage with
reference to bankruptcy or insolvency or the like shall refer to
each of the persons who is at that time one of the Mortgagor, so
that if, for example, but without limitation, any person who is one
of the Mortgagor (or is a partner, trustee or joint venturer in an
entity which is one of the Mortgagor) shall file a petition in
bankruptcy, such filing shall be treated as a breach of condition of
this Mortgage. The Mortgagor may not assign any of its obligations
hereunder without the prior written consent of the Mortgagee.
(j) The word "Mortgagee", as used herein, shall mean the Mortgagee
named at the beginning of this instrument, its successors and
assigns, and any subsequent holder or holders of this Mortgage.
(k) The word "Note", as used herein, shall include the promissory
note described at the beginning of this instrument as the Note, and
all extensions, renewals, replacements and amendments thereof.
(l) All of the rights of the Mortgagee hereunder shall inure to
the benefit of its successors and assigns, and any subsequent holder
or holders of this Mortgage, and all the covenants and agreements of
the Mortgagor herein contained shall be binding upon the
Mortgagor,its successors and permitted assigns; and, where more than
one person constitutes the Mortgagor the liability of such persons
under this Mortgage for the obligations set forth herein shall be
joint and several.
(m) Mortgagor shall pay all out-of-pocket costs of the Mortgagee
incurred in connection with the review, documentation and closing of
the loan secured hereby.
12. The Mortgagor, for itself, its heirs, executors, administrators,
successors, and permitted assigns, represents, warrants and covenants with
the Mortgagee and its heirs, executors, administrators, successors and
assigns, that Mortgagor is lawfully seized in fee simple of the granted
premises; that they are free from all encumbrances other than those
matters appearing of record as of the date hereof (including the Solar
Lease); that the Mortgagor has good right to sell and convey the same; and
that Mortgagor will, and Mortgagor's heirs, executors, administrators,
successors, and permitted assigns, shall, represent warrant and defend the
same to the Mortgagee and its heirs, executors, administrators, successors
and assigns forever against the lawful claims and demands of all persons
claiming by, through, or under Mortgagor; and that the Mortgagor and its
heirs, executors, administrators, successors and permitted assigns, 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.
[THE REMAINING PORTION OF THIS PAGE IS BLANK]
Executed as a sealed instrument as of the [ ] day of December, 2012.
MORTGAGOR
XX Xxxxxxxxx Solar, LLC
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Manager
Exhibit A
Legal Description of Land
That certain land containing approximately 54.12 acres shown as "Lot A-2"
on that certain plan entitled "Subdivision Plan in Salisbury, MA" prepared
by Millennium Engineering, Inc. dated September 14, 2012 (the "Plan") and
recorded with the Essex South Registry Deeds at Plan Book 435, Plan 37.
