Common use of The Mortgage Clause in Contracts

The Mortgage. We have also examined the originals, or copies certified to our satisfaction, of the documents listed in a certificate of an officer of the Borrower, dated the date hereof (the "Certificate"), certifying that the documents listed therein are all of the indentures, loan or credit agreements, guarantees, mortgages, security agreements, bonds and notes and other agreements or instruments, and all of the orders, writs, judgments, injunctions, decrees, determinations and awards, that affect or purport to affect the obligations of such Loan Party or any of its Subsidiaries under any Loan Document or the right of such Loan Party or any of its Subsidiaries to borrow money, to guarantee the obligations of other Persons, to create Liens on its property or to consummate the transactions contemplated by the Loan Documents. In rendering this opinion we have examined in addition to the Loan Documents, such other documents and records pertaining to our clients as in our judgment are necessary or appropriate to enable us to render the opinions expressed below. As to matters of fact material to our opinions, we have relied upon representations of the Loan Parties in the Loan Documents, and on certificates of officers of the Loan Parties, and of public officials, and we have made no independent inquiry into the accuracy of such representations. For purposes of this opinion, we have assumed that: (a) The execution and delivery of the Loan Documents and other documents reviewed by us, and the entry into and performance of the transactions contemplated by the Loan Documents, by all parties (other than the Loan Parties) have been duly authorized by all necessary actions and constitute the valid and binding obligations of all parties other than the Loan Parties. (b) All natural persons who are signatories to the Loan Documents were legally competent at the time of execution; all signatures on the Loan Documents and other documents reviewed by us of parties other than the Loan Parties are genuine; the copies of all documents submitted to us are accurate and complete and conform to originals. Our opinions set forth herein are based on our consideration of only those statutes, rules, regulations and judicial decisions which, in our experience, are normally applicable to or normally relevant in connection with transactions of the type contemplated in the Loan Documents. Whenever our opinion with respect to the existence or absence of facts is indicated to be based on our knowledge or awareness, we are referring to the conscious awareness of the Dechert Price & ▇▇▇▇▇▇ attorneys who have rendered legal services to the Loan Parties in connection with the transactions contemplated by the Loan Documents, which knowledge has been obtained by such attorneys in their capacity as such. Except as expressly set forth herein, we have not undertaken any independent investigation to determine the existence or absence of such facts and no inference as to our knowledge concerning such facts should be drawn from the fact that such representation has been undertaken by us. For purposes of paragraph 6 below, we have assumed (1) that the Loan Parties have rights in the Collateral as to which our opinion is expressed, within the meaning of the New Jersey Uniform Commercial Code (the "Code"), (2) that the proceeds of the Advances have been disbursed to or as directed by the Borrower, and (3) that all Collateral (as defined in the Security Agreement) consisting of fixtures (as defined in the Code) is located in Camden County, New Jersey. For purposes of paragraphs 6, 7 and 8 below, we have assumed that the descriptions of the real estate in the Mortgage and in the Financing Statements to be filed as fixture filings is an accurate and complete description of all real estate on which any fixtures included in the Collateral are located. Based upon the foregoing and upon such investigation as we have deemed necessary, and subject to the qualifications set forth in this letter, we are of the following opinion:

The Mortgage. Terms not defined herein shall have the meanings assigned thereto in the Credit Agreement. The documents described in (a) through (e) above are hereinafter collectively referred to as the “Documents.” The documents described in (b) through (e) above are hereinafter collectively referred to as the “Mortgagor Documents.” We have also examined the originalssuch certificates of public officials, or copies certified to our satisfaction, of the documents listed in a certificate of an officer of the Borrower, dated the date hereof (the "Certificate"), certifying that the documents listed therein are all of the indentures, loan or credit agreements, guarantees, mortgages, security agreements, bonds and notes and other agreements or instruments, and all of the orders, writs, judgments, injunctions, decrees, determinations and awards, that affect or purport to affect the obligations of such Loan Party or any of its Subsidiaries under any Loan Document or the right of such Loan Party or any of its Subsidiaries to borrow money, to guarantee the obligations of other Persons, to create Liens on its property or to consummate the transactions contemplated by the Loan Documents. In rendering this opinion we have examined in addition to the Loan Documents, such other limited liability company documents and records pertaining to our clients and other certificates and instruments as in our judgment are we have deemed necessary or appropriate to enable us to render for the purposes of the opinions expressed belowherein expressed. As to matters various questions of fact material to our opinions, we have relied upon representations certificates and written statements of officers and members of the Loan Parties in Borrower and the Loan Documents, and on certificates Mortgagor. As to all questions of officers of the Loan Parties, and of public officials, and we fact material to our opinions that have made no independent inquiry into the accuracy of such representations. For purposes of this opinionnot been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Borrower and the Mortgagor and upon the representations and warranties of the Borrower and the Mortgagor contained in the Documents. As used herein, “to our knowledge” and “of which we are aware” mean the conscious awareness of facts or other information by any lawyer in our firm actively involved in the transactions contemplated by the Documents. We understand that with respect to title matters, you will be relying on the title insurance commitment issued to you by Chicago Title Insurance Company bearing Title No. 2851-25220, Revision 1, dated as of November 14, 2008 and re-dated as of today. We have not made any investigation of any matters of title to any property (whether real, personal or mixed). In rendering the opinions expressed herein we have also assumed thatand relied upon, without independent investigation, the following: (ai) The the legal right and power of each of the parties to the Documents other than the Mortgagor under all applicable laws and regulations to execute, deliver and perform each party’s respective obligations under the Documents, the due authorization, execution and delivery of the Loan Documents and other documents reviewed by usall parties obligated thereunder including the Mortgagor, and the entry into validity, binding effect and performance enforceability against each of the transactions contemplated by parties of the Loan Documents, except for the validity, binding effect and enforceability against the Mortgagor of the provisions of the Mortgage that are to be governed by all parties Vermont law under the choice of law provisions set forth in the Mortgage; (other than ii) the Loan Partiesdue organization and valid existence of the Mortgagor as a limited liability company under the law of the State of Delaware, having the limited liability company power and authority under such law to own, lease and operate the real property described in the Mortgage and to execute and deliver, and perform Mortgagor’s obligations under the Mortgagor Documents; (iii) have been duly authorized by all necessary actions and constitute the valid and binding obligations genuineness of all parties other than signatures, the Loan Parties. (b) All legal capacity of all natural persons who are signatories to persons, the Loan Documents were legally competent at the time of execution; all signatures on the Loan Documents completeness and other documents reviewed by us of parties other than the Loan Parties are genuine; the copies authenticity of all documents submitted to us are accurate as originals, the power and complete authority of a person that is a natural person, the completeness and conform conformity to originals. Our original documents of all documents submitted to us as certified, conformed or photostatic copies and the completeness and authenticity of the originals of such latter documents; (iv) the valid issuance of all certificates, records, instruments, statements and other documents that we have examined or relied upon in rendering the opinions expressed herein, and the truthfulness, completeness and accuracy of all information set forth herein are based on our consideration in such documents; (v) the truthfulness, completeness and accuracy of only those statutes, rules, regulations and judicial decisions which, in our experience, are normally applicable to or normally relevant in connection with transactions of the type contemplated all factual representations made in the Loan Documents. Whenever our opinion , and no fraud with respect to the existence transactions or absence matters that are the subject of facts is indicated to be based on our knowledge or awarenessthe opinions herein; (vi) the conformity of the final, we are referring original Mortgagor Documents to the conscious awareness copies of the Dechert Price & Mortgagor Documents that we have reviewed in rendering the opinions expressed herein; (vii) the proper recording and indexing of the Mortgage in the Land Records of the Town Clerk’s Office for the Towns of ▇▇▇▇▇▇ attorneys who and Brattleboro, Vermont, the proper filing and indexing of the Financing Statements in the filing offices indicated thereon, and the payment of all filing and recording fees, taxes and similar charges relating to such filing and recording; (viii) the correctness, completeness and adequacy of the description of the real property and the other collateral set forth in the Mortgage and the Financing Statements, and all exhibits and schedules have rendered legal services been or will be properly attached to the Loan Parties Mortgage and the Financing Statements prior to filing or recording; (ix) the Mortgagor has all right, title and interest in connection and to all real property, real property interests, real property rights, fixtures, goods that are fixtures, personal property, membership interests, and all other collateral which are purported to be encumbered or pledged by the Mortgage; (x) the Lenders have made at least one of the Loans or issued at least one of the Letters of Credits under the Credit Agreement; (xi) there are no documents, agreements, understandings or negotiations between the parties to the Documents that would expand, modify or otherwise affect the respective rights and obligations of the parties set forth in the Documents, and the Documents correctly and completely set forth the intent of all parties thereto; (xii) the Arrangers, Lenders and Agents have had minimal contact with the State of Vermont, other than the taking of real and personal property as collateral pursuant to the Mortgagor Documents and inspection of such property by agents or employees of the Arrangers to evaluate the collateral value; (xiii) the Arrangers, Lenders and Agents have not solicited any loan business or otherwise engaged in any business in the State of Vermont, the Loans and Letters of Credit contemplated by the Credit Agreement have been applied for, negotiated, closed and funded in the State of New York or elsewhere outside the State of Vermont, and each of the Documents has been executed and delivered by the Borrower or the Mortgagor outside the State of Vermont, and accepted by the Arrangers and Agents in the State of New York or elsewhere outside the State of Vermont; (xiv) the Loans have been or will be made and the Letters of Credit have been or will be issued to finance an income-producing business or activity, and all commitment fees, one-time fees, or other such charges received by the Arrangers, Lenders and Agents with respect to the transactions contemplated by the Loan Documents, which knowledge has been obtained Documents reflect the reasonable value of services rendered by such attorneys parties in their capacity as such. Except as expressly set forth herein, we have not undertaken any independent investigation to determine the existence or absence of connection with such facts and no inference as to our knowledge concerning such facts should be drawn from the fact that such representation has been undertaken by us. For purposes of paragraph 6 below, we have assumed transactions; and (1xv) that the Loan Parties have rights in the Collateral as to which our opinion is expressed, within the meaning each of the New Jersey Uniform Commercial Code (the "Code")Arrangers, (2) that the proceeds of the Advances have been disbursed to Lenders and Agents is a “bank” or an “insurance company” as directed by the Borrower, and (3) that all Collateral (as those terms are defined in the Security Agreement) consisting Vermont licensed lender statute, 8 V.S.A. § 2200 et seq., or, if any of fixtures (such parties is not a “bank” or an “insurance company,” then except for commercial loans of $1,000,000 or more, such party has not engaged in the business of making loans, acted as a mortgage broker, or acted as a sales finance company in the State of Vermont, as those terms are defined in the CodeSection 2201(a) is located in Camden County, New Jersey. For purposes of paragraphs 6, 7 and 8 below, we have assumed that the descriptions of the real estate in the Mortgage and in the Financing Statements to be filed as fixture filings is an accurate and complete description of all real estate on which any fixtures included in the Collateral are locatedVermont licensed lender statute. Based upon on the foregoing and upon such investigation as we have deemed necessary, and subject to the qualifications set forth in this letterand exceptions herein contained, we are of the following opinion that: 1. The Mortgagor is duly qualified to do business as a foreign limited liability company under the law of the State of Vermont. 2. There is no restriction under Vermont law which would prohibit or prevent Mortgagor or its sole member from owning or mortgaging the real property described in the Mortgage. 3. The provisions of the Mortgage that are to be governed by Vermont law under the choice of law provisions set forth in the Mortgage are the valid and binding obligations of the Mortgagor, enforceable against the Mortgagor in accordance with their respective terms, except as may be limited by (i) bankruptcy, insolvency or other similar laws affecting the rights of creditors generally, and (ii) general principles of equity (regardless of whether considered in a proceeding in equity or at law), including covenants implied by law to act reasonably and in good faith. The aforesaid opinion as to enforceability of the Mortgage is also subject to the qualification that certain provisions contained in the Mortgage may not be enforceable, but (subject to the limitations set forth in the foregoing clauses (i) and (ii)) such unenforceability will not render the Mortgage invalid as a whole or substantially interfere with realization of the principal benefits and/or security provided thereby, and to the qualification that the right to accelerate the maturity of payment obligations under Section 3.1 of the Mortgage may not be enforceable (a) upon the occurrence of an event of default or breach under the Mortgage deemed by a court to be immaterial or (b) if deemed by a court to be commercially unreasonable. The enforceability of the Mortgage against the Mortgagor depends upon the enforceability of the obligations secured by the Mortgage, i.e., the Mortgagor’s obligations under the Collateral Agreement. As noted above, for purposes of this opinion we have assumed the enforceability of the Collateral Agreement against the Mortgagor, and we therefore express no opinion as to the enforceability of the Collateral Agreement. We note, however, with respect to the Collateral Agreement that the validity and enforceability of a guaranty is subject to the requirement that the party making the guaranty receive sufficiently valuable consideration for that undertaking. The validity and enforceability of a guaranty may also depend on the solvency of the parties. The value of consideration and the determination of solvency are issues of fact upon which we do not as a matter of firm policy express an opinion:.