Exhibit 10.3: Form of Power REIT Guaranty
GUARANTY
THIS GUARANTY (this "Guaranty") dated as of this [ ] day of December,
2012 is made by POWER REIT, a Maryland real estate investment trust (the
"Guarantor"), with an address of 000 Xxxxxxx Xxxx, Xxx Xxxxxxxx, Xxx Xxxx
00000, to and for the benefit of XXXXXX BAY PARTNERS, L.P., a New York
limited partnership (the "Lender"), with a principal place of business at
000 Xxxxxxx Xxxx, Xxx Xxxxxxxx, Xxx Xxxx 00000.
R E C I T A L S:
A. XX XXXXXXXXX SOLAR, LLC, a Massachusetts limited liability
company (the "Borrower"), with a principal place of business at 000Xxxxxxx
Xxxx, Xxx Xxxxxxxx, Xxx Xxxx 00000, is obtaining a loan (the "Loan") from
Lender in the original principal amount of Eight Hundred Thousand and
00/100 Dollars ($800,000.00) (the "Loan Amount").
B. The Loan is evidenced by the Promissory Note, dated of even
date herewith, made by Borrower to the order of Lender in the Loan Amount
(as now or hereafter amended, modified, substituted or replaced, the
"Note").
C. The Loan is secured by a Mortgage Security Agreement and
Assignment of Leases and Rents, dated of even date herewith, by Borrower
in favor of Lender (as now or hereafter amended, modified, substituted or
replaced, the "Mortgage") with respect to that certain real property
located in Salisbury, Massachusetts and more particularly described on
Exhibit A hereto the "Property").
D. Guarantor represents to Lender that Lender's making of the
Loan to Borrower will be to the direct interest, advantage and benefit of
Guarantor.
E. This Guaranty is given to Lender and guarantees the
obligations of the Borrower contained in each and every one of the Loan
Documents (as defined in the Mortgage Agreement) delivered to Lender in
connection with the Loan evidenced by the Note.
F. Guarantor, as an inducement to Lender to make the Loan,
represents and agrees with Lender that the funds represented by the Note
are being used for business and commercial purposes and not for personal,
household or family purposes.
A G R E E M E N T:
NOW THEREFORE, in order to induce Lender to make the Loan to
Borrower, and in consideration of the matters described in the foregoing
recitals and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Guarantor hereby agrees as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Incorporation of Other Definitions. All initially
capitalized terms used in this Guaranty which are not otherwise defined in
this Guaranty shall have the meanings ascribed to them in the Loan
Documents.
Section 1.2 Definitions. As used in this Guaranty the following
terms shall have the following meanings:
"Default Rate": The "Default Rate" as defined in the Note.
"Lender": The individual or entity described as Lender in the
preface of this Guaranty and/or such of its affiliate(s), nominee(s) or
subsidiary(ies) to the extent such entity holds an interest in the Loan or
acts on behalf of any entity that holds an interest in the Loan, and any
investor, participant, co-lender or assignee to whom the Loan, in whole or
in part, may be sold, assigned, pledged or otherwise transferred, and
their successors and assigns.
"Loan Documents": The Note, the Mortgage, this Guaranty,
and/or any of the other documents, instruments and agreements executed
and/or delivered to Lender in connection with the Note or Lender's
commitment to make the Loan evidenced thereby, as now or hereafter
amended, modified, substituted or replaced.
Section 1.3 Rules of Construction. No rules of construction against
the drafter of this Guaranty shall apply in the interpretation of this
Guaranty or any of the provisions hereof.
Section 1.4 Interpretation. For purposes of this Guaranty, except as
otherwise expressly provided or unless the context otherwise requires:
(a) defined terms include the plural as well as the singular, and the use
of any gender herein shall be deemed to include the other genders; (b)
references herein to "Articles," "Sections," subsections, paragraphs and
other subdivisions without reference to a document are to designated
Articles, Sections, subsections, paragraphs and other subdivisions of this
Guaranty; (c) a reference to a subsection without further reference to a
Section is a reference to such subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
paragraphs, clauses and other subdivisions; (d) the words "hereof,"
"herein," "thereof," "hereunder" and other words of similar import refer
to this Guaranty as a whole and not to any particular provisions; (e) the
headings of the Articles, Sections or subsections of this Guaranty are
inserted for convenience of reference only and shall in no way alter,
modify or define, or be used in construing, the substance of such
Articles, Sections or subsections; (f) the word "including" or "includes"
means "including, but not limited to" or "includes without limitation";
(g) the words "approval," "consent" and "notice" shall be deemed to be
preceded by the word "written"; (h) in the computation of periods of time
from a specified date to a later specified date, the word "from" means
"from and including"; the words "to" and "until" mean "to but excluding";
and the word "through" means "to and including"; (i) any reference to this
Guaranty, including any Exhibits hereto shall include this Guaranty and
any such Exhibits, as the same may from time to time be supplemented,
modified or amended; (j) any document that is "certified" means the
document has been appended to a certificate of the party certifying the
document that affirms the truth and accuracy of everything in the document
being certified, subject to the limitations therein; and (k) unless
otherwise specifically provided, all references in this Guaranty to a
number of days shall mean calendar days rather than business days.
ARTICLE II
GUARANTY OF PAYMENT AND PERFORMANCE
Section 2.1 Guaranteed Obligations. Guarantor absolutely,
unconditionally and irrevocably guaranties to Lender, as primary obligor
and not as surety, and jointly and severally with each and every other
guarantor (if any), the payment and performance of the Guaranteed
Obligations. As used in this Guaranty, the term "Guaranteed Obligations"
shall mean:
(a) The payment of when due of the outstanding principal
balance of the Note, interest thereon, and all other sums due or to
become due and payable to the Lender under the provisions of the
Loan Documents;
(b) The payment, performance and discharge of each and every
obligation, covenant, undertaking and agreement of the Guarantor
hereunder and of Borrower to the Lender contained in any of the
other Loan Documents, including the indemnification obligations
under the Mortgage; and
(c) The payment of all Costs of Collection defined in Section
2.3 below.
Section 2.2 Agreement to Pay. Upon a default, Default or Event of
Default as defined in or set forth in the Note or Mortgage, and including,
without limitation, failure by Borrower and Guarantor to fully, faithfully
and punctually observe their obligations under the Loan Documents within
applicable grace periods, if any, Lender may at its option proceed
directly and at once, without further notice (other than any notice
required by applicable law or the Loan Documents) against Guarantor
hereunder, without proceeding against Borrower or any other person or any
collateral for the Guaranteed Obligations. Any sums due and payable by
Guarantor hereunder shall bear interest at the Default Rate from the date
of Lender's demand until the date paid.
Section 2.3 Costs of Collection. Guarantor further agrees to pay
Lender all costs and expenses (including all court costs and attorneys'
fees and disbursements) paid or incurred by Lender in endeavoring to
collect the Guaranteed Obligations from Borrower or Guarantor, to enforce
any of the Guaranteed Obligations against Borrower or Guarantor, or any
portion thereof, or to enforce this Guaranty, together with interest
thereon at the Default Rate from the date such costs or expenses were paid
or incurred by Lender until paid to Lender unless collection from
Guarantor of interest at such rate would be contrary to law applicable to
Guarantor, in which event such sums shall bear interest at the highest
rate which may be collected from Guarantor under applicable law
(collectively, the "Costs of Collection").
Section 2.4 Reinstatement of Refunded Payments. If for any reason
Lender is required to refund or relinquish to Borrower or Guarantor any
payment of the Guaranteed Obligations received by Lender from Borrower or
any other person, including by reason of the operation of any debtor
relief laws now or hereafter enacted, then Guarantor agrees to pay to
Lender on demand an amount equal to the amount so required to be refunded
or relinquished, it being expressly agreed that the obligations of
Guarantor shall not be treated as having been discharged by the original
payment to Lender giving rise to such refund or relinquishment, and this
Guaranty shall be treated as having remained in full force and effect for
any such refund or relinquishment so made by Lender as well as for any
amounts not theretofore paid to Lender on account of such Guaranteed
Obligations.
Section 2.5 Acknowledgment of Other Rights. Nothing herein shall:
(a) constitute a waiver, release or impairment of any obligation evidenced
by the Loan Documents including any right which Lender may have under
Sections 506(a), 506(b), 1111(b) or any other provision of the U.S.
Bankruptcy Code to file a claim for the full amount of the indebtedness
secured by the Mortgage or to require that all of the Property shall
continue to secure all of the indebtedness owed to Lender pursuant to the
Loan Documents; (b) affect the validity or enforceability of any
indemnity, guaranty or similar instrument made in connection with any Loan
Document; (c) impair the right of Lender to obtain the appointment of a
receiver; or (d) impair the enforcement of any of Lender's other rights,
including rights to realize upon any collateral.
ARTICLE III
NATURE OF GUARANTOR'S OBLIGATIONS
Section 3.1 Primary Obligation of Guarantor. This is a guaranty of
payment and performance and not just of collection. The liability of
Guarantor under this Guaranty is primary, direct and immediate and not
conditional or contingent upon the pursuit of any remedies against
Borrower or any other person, nor against securities or liens available to
Lender, Lender's successors, successors in title, endorsees or assigns.
This Guaranty shall not be affected by any circumstance that constitutes a
legal or equitable discharge of a guarantor or surety other than
indefeasible payment in full of all of the Guaranteed Obligations. Lender
may enforce this Guaranty notwithstanding the existence of any dispute
between Lender and Borrower with respect to the existence of a breach or
default of the Guaranteed Obligations. Guarantor hereby waives any right
to require that an action be brought against Borrower or any other person
or to require that resort be had to any security or to any balance of any
deposit account or credit on the books of Lender in favor of Borrower or
any other person, if any. This Guaranty shall be irrevocable by
Guarantor. If Guarantor pays any amount hereunder and it is later
determined that: (i) neither Borrower nor Guarantor is liable as
determined by a final order of a court of competent jurisdiction after all
appeals have been exhausted, then Lender shall promptly reimburse
Guarantor the amount paid; or (ii) either Borrower or Guarantor is liable,
but for an amount more than the amount paid by Guarantor, then, Guarantor
shall promptly pay to Lender the amount of any shortfall; or (iii) either
Borrower or Guarantor is liable, but for an amount less than the amount
paid by Guarantor, then Lender shall promptly reimburse Guarantor for the
excess. Notwithstanding the foregoing, Lender may deduct all reasonable
costs and expenses incurred by Lender before returning any amounts paid to
Guarantor.
Section 3.2 No Waiver by Lender. Guarantor agrees that
notwithstanding any and all omissions or delays by Lender in exercising
any rights under this Guaranty or any of the other Loan Documents, any and
all forbearances and extensions of the time of payment of the Loan, and
any and all substitutions, exchanges or releases of all or any part of the
collateral therefor, Guarantor shall remain liable, notwithstanding any
action, omission or thing which might otherwise operate as a legal or
equitable discharge of Borrower or Guarantor.
Section 3.3 Order of Enforcement. Upon Borrower's default, Lender,
at Lender's election, may proceed against Guarantor with or without: (a)
joining in any such action Borrower or any other indemnitor or guarantor;
(b) commencing any action against or obtaining any judgment against
Borrower; or (c) commencing any proceeding to enforce the Loan Documents.
Section 3.4 Effect of Unenforceability of Loan Documents or
Bankruptcy. Guarantor agrees that Guarantor's obligations hereunder shall
not be impaired, modified, changed, released or limited in any manner
whatsoever by any invalidity, irregularity or unenforceability of all or
any part of the Loan Documents or by any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other
like proceeding under any debtor relief laws relating to Borrower,
Guarantor, any other guarantor or indemnitor, or any affiliate of any of
them. The liability of Guarantor hereunder is primary and unconditional
and shall not be subject to any offset, defense (other than the defense of
prior payment in full) or counterclaim.
Section 3.5 Payment on Demand. Guarantor agrees that all obligations
of Guarantor hereunder shall be due and payable on demand.
Section 3.6 Survival. The obligations of Guarantor hereunder shall
survive a foreclosure of the Mortgage and/or conveyance of all or any
portion of the Property in lieu of a foreclosure of the Mortgage until the
non-contestable repayment in full of the Loan.
Section 3.7 Rights of Lender to Deal with Collateral, Borrower and
Other Persons.
3.7.1 Rights to Release or Substitute. Guarantor hereby
consents and agrees that Lender may at any time, and from time to time,
without thereby releasing Guarantor from any liability hereunder and
without notice to or further consent from Guarantor, either with or
without consideration: (a) release or surrender any lien, security
interest or other security of any kind or nature whatsoever held by Lender
or by any person, firm or corporation on Lender's behalf or for Lender's
account, securing any of the Guaranteed Obligations; (b) substitute for
any collateral so held by Lender, other collateral of like kind, or of any
kind; (c) modify the terms of the Note or any of the other Loan Documents;
(d) extend or renew the Note for any period; and (e) grant releases,
compromises and indulgences with respect to the Note or any of the other
Loan Documents and to any persons or entities now or hereafter liable
thereunder or hereunder; (f) release any other guarantor, surety, endorser
or accommodation party of the Note or any other Loan Documents; or (g)
take or fail to take any action of any type whatsoever.
3.7.2 No Affect on Guaranty. No action which Lender shall take
or fail to take in connection with the Note or any of the other Loan
Documents, or any of them, or any security for the payment of the
indebtedness of Borrower to Lender or for the performance of any of the
Guaranteed Obligations or other undertakings of Borrower, nor any course
of dealing with Borrower or any other person, shall release Guarantor's
obligations under this Agreement, affect this Guaranty in any way, or
afford Guarantor any recourse against Lender.
3.7.3 Renewals and Modifications. The provisions of this
Guaranty shall extend and be applicable to all renewals, amendments,
extensions, consolidations, restatements and modifications of the Note and
the other Loan Documents, and any and all references herein to the Note
and the other Loan Documents shall be deemed to include any such renewals,
extensions, amendments, consolidations, restatements or modifications
thereof, provided that none of the foregoing materially increases the
scope or extent of the Guaranteed Obligations.
Section 3.8 No Contest with Lender; Subordination
3.8.1 No Set-Off or Counterclaim Against Borrower. So long as
any portion of the Loan and/or the Guaranteed Obligations remain unpaid,
Guarantor will not, by paying any sum recoverable hereunder (whether or
not demanded by Lender) or by any means or on any other ground, claim any
set-off or counterclaim against Borrower in respect of any liability of
Borrower to Guarantor or, in proceedings under the U.S. Bankruptcy Code or
other insolvency proceedings of any nature, prove in competition with
Lender in respect of any payment hereunder or be entitled to have the
benefit of any counterclaim or proof of claim or dividend or payment by or
on behalf of Borrower or the benefit of any other security for any
Guaranteed Obligation which, now or hereafter, Lender may hold or in which
Lender may have any share.
3.8.2 Subordination by Guarantor. So long as any portion of
the Loan remains unpaid, Guarantor hereby subordinates any and all
indebtedness of Borrower now or hereafter owed to Guarantor to all of the
Guaranteed Obligations and any other indebtedness of Borrower to Lender
and agrees with Lender that:
(a) Guarantor shall not demand or accept any payment from
Borrower on account of such indebtedness;
(b) Guarantor shall not claim any offset or other reduction
of Guarantor's obligations under this Guaranty because of any such
indebtedness;
(c) Guarantor shall not take any action to obtain any
interest in any of the security described in and encumbered by the
Loan Documents because of any such indebtedness; and
(d) Guarantor shall not be entitled to receive and hereby
waive the right to receive any distributions or fees from Borrower
until the Loan is paid in full except to the extent expressly
permitted under the Mortgage.
3.8.3 Collection for Lender. Notwithstanding the foregoing, so
long as any portion of the Loan remains unpaid, if Lender so requests, any
indebtedness of Borrower now or hereafter owed by Borrower to Guarantor
shall be collected, enforced and received by Guarantor in trust as trustee
for Lender and be paid over to Lender on account of the indebtedness of
Borrower and/or Guarantor to Lender, but without reducing or affecting in
any manner the liability of Guarantor under the other provisions of this
Guaranty except to the extent the principal amount of such outstanding
indebtedness shall have been reduced by such payment.
Section 3.9 Business Failure, Bankruptcy or Insolvency
3.9.1 Proofs of Claim. In the event there shall be pending any
bankruptcy or insolvency case or proceeding with respect to Guarantor
under the U.S. Bankruptcy Code or any other applicable debtor relief law
or in connection with the insolvency of Guarantor, or if a liquidator,
receiver, or trustee shall have been appointed for Guarantor or
Guarantor's properties or assets, Lender may file such proofs of claim and
other papers or documents as Lender may deem to be necessary or advisable
in order to have the claims of Lender allowed in any proceedings relative
to Guarantor, or any of Guarantor's properties or assets, and,
irrespective of whether the Guaranteed Obligations shall then be due and
payable, by declaration or otherwise, Lender shall be entitled and
empowered to file and prove a claim for the whole amount of any sums or
sums owing with respect to the Guaranteed Obligations, and to collect and
receive any moneys or other property payable or deliverable on any such
claim. Guarantor shall cooperate in good faith with Lender in connection
with the foregoing.
3.9.2 Continuing Obligations. So long as any portion of the
Loan remains unpaid, Guarantor shall not, without the prior written
consent of Lender, commence, consent to or join with any other person or
entity in commencing any bankruptcy, reorganization or insolvency
proceedings of or against Borrower. The obligations of Guarantor under
this Guaranty shall not be reduced, limited, impaired, discharged,
deferred, suspended or terminated by any proceeding, voluntary or
involuntary, involving the bankruptcy, insolvency, receivership,
reorganization, liquidation or arrangement of Borrower or Guarantor or by
any defense that Borrower or Guarantor may have by reason of the order,
decree or decision of any court or administrative body resulting from any
such case or proceeding. Guarantor acknowledges and agrees that any
interest on any portion of the Guaranteed Obligations that accrues after
the commencement of any proceeding referred to above (or, if interest on
any portion of the Guaranteed Obligations ceases to accrue by operation of
law by reason of the commencement of such case or proceeding, such
interest as would have accrued on such portion of the Guaranteed
Obligations if such case or proceeding had not been commenced) shall be
included in the Guaranteed Obligations because it is the intention of
Guarantor and Lender that the Guaranteed Obligations that are guaranteed
by Guarantor hereunder should be determined without regard to any rule of
law or order that may relieve Borrower of any portion of such Guaranteed
Obligations.
3.9.3 Admission of Cause. If: (a) there is filed by or
against Borrower or Guarantor a petition or answer or consent seeking
relief under the U.S. Bankruptcy Code or any other applicable debtor
relief law; (b) Borrower or Guarantor consents to the institution of
proceedings thereunder or the filing of such petition or order; (c)
Borrower or Guarantor makes an assignment for the benefit of creditors;
(d) Borrower or Guarantor fails generally to pay its debts as they come
due; (e) there shall be instituted a proceeding for the winding up or
liquidation of the affairs of Borrower or Guarantor; or (f) there shall be
instituted a proceeding for the appointment of any liquidator, assignee,
trustee, sequestrator (or similar official) with respect to Borrower or
Guarantor or any portion of their respective properties, then Guarantor
hereby stipulates and agrees to the fullest extent permitted by law that,
to the extent such stay may be applicable as between Lender and Borrower
or Guarantor, this constitutes "Cause" under Section 362(d) of the
Bankruptcy Code to lift the automatic stay and Lender shall be entitled,
subject to approval of the Bankruptcy Court, and, to the extent court
relief from the stay is necessary or deemed advisable by Lender, Guarantor
irrevocably consents to relief from, and Guarantor shall not defend
against or oppose any motion to lift, any automatic stay imposed by
Section 362 of the Bankruptcy Code, or otherwise, to allow Lender to
exercise all rights and remedies available to Lender, including
foreclosure, as provided in the Loan Documents and as otherwise provided
by law, and Guarantor hereby irrevocably waive any right to object to
relief from such automatic stay.
ARTICLE IV
WAIVERS BY GUARANTOR
Section 4.1 Waivers. Guarantor hereby agrees that Guarantor's
obligations under this Guaranty shall not be affected or impaired by, and
hereby waives and agrees not to assert or take advantage of any defense
based on any of the following:
(a) the incapacity or lack of authority of Borrower or
Guarantor or any other person or entity, the death or disability of
Borrower or Guarantor or any other person or entity, or the failure
of Lender to file or enforce a claim against the estate (either in
administration, bankruptcy or in any other proceeding) of Borrower
or any other person or entity;
(b) the dissolution or termination of existence of Borrower
or Guarantor;
(c) the voluntary or involuntary liquidation, sale or other
disposition of all or substantially all of the assets of Borrower or
Guarantor;
(d) the voluntary or involuntary receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
assignment, composition, or readjustment of, or any similar
proceeding affecting, Borrower, Guarantor or any of Borrower's or
Guarantor's properties or assets;
(e) failure to make or give notice of acceptance, demand,
presentment for payment, protest and notice of protest, demand,
dishonor and nonpayment and all other notices except as expressly
required in the Loan Documents, including the failure of Lender to
give notice of the existence, creation or incurring of any new or
additional indebtedness or Guaranteed Obligations or of any action
or non-action on the part of Borrower, Lender, any endorser or
creditor of Borrower or of Guarantor or on the part of any other
person whomsoever under this Guaranty or any other Loan Document, or
any and all other notices whatsoever to which Guarantor might
otherwise be entitled;
(f) any failure or delay of Lender to commence an action
against Borrower, to assert or enforce any remedies against Borrower
under the Note or any of the other Loan Documents, or to realize
upon any security;
(g) any failure of any duty on the part of Lender to disclose
to Guarantor any facts Lender may now or hereafter know regarding
Borrower, whether such facts materially increase the risk to
Guarantor or not;
(h) any lack of diligence by Lender in collection, protection
or realization upon any collateral securing the payment or
performance of the Guaranteed Obligations;
(i) the invalidity or unenforceability of the Note or any of
the Loan Documents;
(j) the compromise, settlement, release or termination of any
of the Guaranteed Obligations;
(k) the failure of Lender to perfect any security or to
extend or renew the perfection of any security;
(l) any right or claim of right to cause a marshaling of the
assets of Guarantor or any other party;
(m) any right to require Lender (i) to proceed against
Borrower or any other person, (ii) to proceed against or exhaust any
security held by Lender at any time, or (iii) to pursue any other
remedy in Lender's power or under any other agreement, in any case,
before proceeding against Guarantor hereunder;
(n) any defense based upon an election of remedies, splitting
a cause of action or merger of judgments;
(o) any principle or provision of law, statutory or
otherwise, which is or might be in conflict with the terms and
provisions of this Guaranty;
(p) any facts, or any duty on the part of Lender to disclose
to Guarantor any facts, Lender may now or hereafter know about
Borrower or the Property, regardless of whether Lender (i) has
reason to believe that any such facts materially increase the risk
beyond that which Guarantor intends to assume, (ii) has reason to
believe that such facts are unknown to Guarantor, or (iii) has a
reasonable opportunity to communicate such facts to Guarantor, it
being understood and agreed that Guarantor is fully responsible for
being and keeping itself informed of the financial condition of
Borrower, the financial and physical condition of the Property and
all other circumstances bearing on the risk that liability may be
incurred by Guarantor hereunder;
(q) any invalidity, irregularity or unenforceability, in
whole or in part, of any one or more of the Loan Documents;
(r) any deficiency in the collateral for the Loan or any
deficiency in the ability of Lender to collect or obtain performance
from any persons now or hereafter liable for the payment and
performance of any obligation guaranteed hereby;
(s) any claim that the automatic stay provided by 11 U.S.C.
Section 362 (arising upon the voluntary or involuntary bankruptcy
proceeding of Borrower) or any other stay provided under any other
debtor relief law (whether statutory, common law, case law or otherwise)
of any jurisdiction whatsoever, now or hereafter in effect, which may
be or become applicable, shall operate or be interpreted to stay,
interdict, condition, reduce or inhibit the ability of Lender to
enforce any of Lender's rights, whether now existing or hereafter
acquired, which Lender may have against Guarantor, Borrower or the
Property or any other collateral for the Loan or this Guaranty;
(t) any modifications of the Loan Documents or any obligation
of Borrower relating to the Loan by operation of law or by action of
any court, whether pursuant to the U.S. Bankruptcy Code or any other
debtor relief law (whether statutory, common law, case law or
otherwise) of any jurisdiction whatsoever, now or hereafter in
effect, or otherwise;
(u) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in
amount nor in other respects more burdensome than that of the
principal;
(v) to the fullest extent permitted by law, any other legal,
equitable or surety defenses whatsoever to which Guarantor might
otherwise be entitled, it being the intention that the obligations
of Guarantor hereunder are absolute, unconditional and irrevocable;
or
(w) the purchase by Lender of other indebtedness obligations
or rights of Guarantor or Borrower.
Guarantor covenants and agrees that, upon the commencement of a
voluntary or involuntary bankruptcy proceeding by or against Borrower,
Guarantor shall not seek or cause Borrower or any other person to seek a
supplemental stay or other relief, whether injunctive or otherwise,
pursuant to 11 U.S.C. Section 105 or any other provision of the U.S.
Bankruptcy Code or any other debtor relief law (whether statutory, common
law, case law or otherwise) of any jurisdiction whatsoever, now or
hereafter in effect, which may be or become applicable, to stay,
interdict, condition, reduce or inhibit the ability of Lender to enforce
any rights of Lender against Guarantor or the collateral for the Loan by
virtue of this Guaranty or otherwise.
Section 4.2 Suretyship and Guaranty Waivers. WITHOUT LIMITING THE
FOREGOING, GUARANTOR HEREBY WAIVES NOTICE OF: (A) LENDER'S ACCEPTANCE OF
THIS GUARANTY; (B) ANY GRANT TO LENDER OF A SECURITY INTEREST, LIEN OR
ENCUMBRANCE IN OR ON ANY ASSETS OF BORROWER; (C) LENDER'S RELEASE OR
WAIVER OF THIS GUARANTY, OR ANY OBLIGATION OF GUARANTOR HEREUNDER, OR ANY
PARTY'S GUARANTEE OF THE NOTE OR ANY SECURITY INTEREST, LIEN OR
ENCUMBRANCE IN ANY OTHER PARTY'S ASSETS GIVEN TO LENDER TO SECURE THE
NOTE, THIS GUARANTY OR ANY OTHER PARTY'S GUARANTEE; (D) LENDER'S RELEASE,
WAIVER OR MODIFICATION OF THE NOTE OR ANY OTHER LOAN DOCUMENTS;
(E) PRESENTMENT, DEMAND, NOTICE OF DEFAULT, INTENT TO ACCELERATE THE NOTE,
ACCELERATION, NON-PAYMENT, PARTIAL PAYMENT AND PROTEST AND ALL OTHER
NOTICES OR FORMALITIES TO WHICH GUARANTOR MAY BE ENTITLED EXCEPT AS
SPECIFICALLY PROVIDED IN THE LOAN DOCUMENTS; (F) ALL SURETYSHIP DEFENSES
OF EVERY KIND AND NATURE; (G) EXTENSIONS OF TIME OF PAYMENT OF THE NOTE
GRANTED TO BORROWER; AND (H) ACCEPTANCE FROM BORROWER OR GUARANTOR (OR ANY
OTHER PARTY) OF ANY PARTIAL PAYMENT OR PAYMENTS OF ANY GUARANTEED
OBLIGATIONS OR ANY COLLATERAL SECURING THE PAYMENT THEREOF OR THE
SETTLEMENT, SUBORDINATION, DISCHARGE OR RELEASE OF THE NOTE OR ANY
GUARANTEED OBLIGATIONS. GUARANTOR AGREES THAT LENDER MAY HAVE OR AT ANY
TIME MAY TAKE ANY OR ALL OF THE FOREGOING ACTIONS IN SUCH MANNER, UPON
SUCH TERMS AND AT SUCH TIMES AS LENDER, IN LENDER'S SOLE DISCRETION, DEEMS
ADVISABLE, WITHOUT IN ANY WAY IMPAIRING, AFFECTING, REDUCING OR RELEASING
GUARANTOR FROM GUARANTOR'S OBLIGATIONS UNDER THIS GUARANTY AND GUARANTOR
HEREBY CONSENTS TO EACH OF THE FOREGOING ACTIONS.
Section 4.3 Waiver of Subrogation. GUARANTOR HEREBY SUBORDINATES TO
ANY CLAIM OF LENDER ANY RIGHT OF SUBROGATION OR CLAIM FOR REIMBURSEMENT
GUARANTOR MAY HAVE AGAINST BORROWER IN CONNECTION WITH ANY PAYMENTS MADE
TO LENDER PURSUANT TO THE PROVISIONS OF THIS GUARANTY UNTIL LENDER HAS
BEEN PAID ALL AMOUNTS DUE TO THE LENDER PURSUANT TO THE LOAN DOCUMENTS.
ARTICLE V
RIGHTS AND REMEDIES OF LENDER
Section 5.1 Breach of Guaranteed Obligations. Upon an Event of
Default (as defined in the any one of the Loan Documents), Lender shall
have the right to enforce Lender's rights, powers and remedies hereunder
or under any other agreement, document or instrument now or hereafter
evidencing, securing or otherwise relating to the Guaranteed Obligations,
in any order, and all rights, powers and remedies available to Lender in
such event shall be nonexclusive and cumulative of all other rights,
powers and remedies provided thereunder or hereunder or by law or in
equity.
Section 5.2 Exercise of Remedies. Guarantor hereby authorizes and
empowers Lender upon an Event of Default (as defined in any one of the
Loan Documents), at Lender's sole discretion, and without notice to
Guarantor, to exercise any right or remedy which Lender may have,
including a secured party sale, exercise of rights of power of sale,
acceptance of an assignment in lieu of a secured party's sale, or exercise
of remedies against personal property.
Section 5.3 Right to Purchase at Foreclosure. At any public or
private sale of any security or collateral for any of the Guaranteed
Obligations, whether by foreclosure sale or otherwise, Lender may, in
Lender's discretion, purchase all or any part of such security or
collateral so sold or offered for sale for Lender's own account and may
apply against the amount bid therefor all or any part of the balance due
Lender pursuant to the terms of the Note or any other Loan Document
without prejudice to Lender's remedies hereunder against Guarantor under
the Guaranteed Obligations to the extent not satisfied after such
application. Lender shall have no obligation to account to Guarantor for
any collateral purchased by Lender after such purchase.
Section 5.4 Partial Payments. If the Guaranteed Obligations are
partially paid by reason of the election of Lender to pursue any of the
remedies available to Lender, or if such Guaranteed Obligations are
otherwise partially paid, this Guaranty shall nevertheless remain in full
force and effect, and Guarantor shall remain liable for the entire balance
of the Guaranteed Obligations even though any rights which Guarantor may
have against Borrower may be destroyed or diminished by the exercise of
any such remedy.
Section 5.5 Independent Obligations. The obligations of Guarantor
hereunder are independent of the obligations of Borrower, any members,
partners, joint venturers, officers, directors, shareholders, trustees or
beneficiaries (as applicable) of Borrower or any other person under the
other Loan Documents, including the obligations of any other guarantor,
and a separate action or actions may be brought and prosecuted against
Guarantor, whether or not any action is brought against Borrower or any of
such other persons and whether or not Borrower is joined in any such
action or actions.
Section 5.6 Application of Payments. Guarantor hereby authorizes
Lender, without notice to Guarantor, to apply all payments and credits
received from Borrower or Guarantor or realized from any security in such
manner and in such priority as Lender in Lender's sole judgment shall see
fit to the Guaranteed Obligations or the indebtedness, obligation and
undertakings of the Guarantor hereunder.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Lender's Right to Transfer. Guarantor acknowledges and
agrees that Lender may, at any time and from time to time, (a) sell,
transfer, assign and convey all or any portion of Lender's right, title
and interest in and to the Loan, this Guaranty and the Loan Documents, any
guarantees given in connection with the Loan and any collateral given to
secure the Loan (b) grant or issue one or more participations in any
portion of Lender's right, title and interest in and to the Loan, this
Guaranty and the Loan Documents, any guarantees given in connection with
the Loan and any collateral given to secure the Loan, or (c) consummate
one or more private or public securitizations of rated single or multi-
class securities secured by or evidencing ownership interests in all or
any portion of the Loan, this Guaranty and the Loan Documents, any
guarantees given in connection with the Loan and any collateral given to
secure the Loan, or a pool of assets that includes one or more or all of
the foregoing.
Section 6.2 Disclosure of Information. Guarantor acknowledges and
agrees that Lender may forward to each prospective purchaser, transferee,
assignee, servicer, participant or investor in the Loan, this Guaranty
orthe Loan Documents, all documents and information which Lender now has
or may hereafter acquire relating to the Loan, the Guarantor and the
Property, whether furnished by Borrower or otherwise, as Lender determines
necessary or desirable, subject to usual restrictions concerning the
confidentiality of such information.
Section 6.3 Loan Servicing. Without limiting the foregoing
provisions of Section 6.2 above, Guarantor acknowledges that Lender may,
in its sole discretion, retain and replace any loan servicer in connection
with the Loan. Guarantor shall cooperate in good faith with Lender and
any such loan servicer regarding the servicing of the Loan, including in
connection with the replacement of any loan servicer.
Section 6.4 Forbearance by Lender Not a Waiver. Any forbearance by
Lender in exercising any right or remedy under this Guaranty, or otherwise
afforded by applicable law, shall not be a waiver of or preclude the
exercise of any right or remedy. Lender's acceptance of payment of any
sum due under this Guaranty after the due date of such payment shall not
be a waiver of Lender's rights to either require prompt payment when due
of all other sums due under this Guaranty or to declare a default for
failure to make prompt payment. Lender's receipt of any awards, proceeds,
or damages under the Mortgage shall not operate to cure or waive
Guarantor's default in payment of sums due under this Guaranty. With
respect to all Loan Documents, only waivers specifically and expressly
made in writing by Lender shall be effective against Lender. References
in this Guaranty or any other Loan Document, if any, to the "continuance
of an Event of Default" or words of similar import shall not be deemed or
construed to mean that Lender is agreeing to excuse or to extend the time
by which Borrower or Guarantor, as the case may be, may cure such Event of
Default or to delay or waive Lender's right to exercise any rights or
remedies to which Lender may be entitled by reason of such Event of
Default.
Section 6.5 Relationship. The relationship between Lender and
Guarantor shall be that of indemnitee-indemnitor only. No term in this
Guaranty or in the other Loan Documents and no course of dealing between
or among the parties shall be deemed to create any relationship of agency,
partnership or joint venture or any fiduciary duty by Lender to any other
party.
Section 6.6 Successors and Assigns Bound; Liability; and Agents. The
covenants and agreements contained in this Guaranty shall bind, and the
rights thereunder shall inure to, the respective successors and assigns of
Lender and successors and permitted assigns of Guarantor. In exercising
any rights under this Guaranty or any of the other Loan Documents or
taking any actions provided for herein or therein, Lender may act through
Lender's respective employees, agents or independent contractors as
authorized by Lender.
Section 6.7 Next Business Day. Whenever any performance obligation
shall be stated to be due or required to be satisfied on a day other than
a Business Day, such performance shall be made or satisfied on the next
succeeding Business Day. A "Business Day" under this Section 6.7 shall be
defined as as a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to
close.
Section 6.8 Time of Essence. Time is of the essence of this Guaranty
and the other Loan Documents and the performance of each of the
obligations, undertakings, covenants and agreements contained herein and
therein.
Section 6.9 Entire Agreement. This Guaranty and the other Loan
Documents embody the final, entire agreement between the parties hereto
and supersede any and all prior commitments, agreements, representations
and understandings, whether written or oral, relating to the subject
matter hereof and thereof and may not be contradicted or varied by
evidence of prior, contemporaneous or subsequent oral agreements or
discussions of the parties hereof.
Section 6.10 Counterparts. To facilitate execution, this
Guaranty may be executed in as many counterparts as may be convenient or
required. The signature and acknowledgment of, or on behalf of, each
party, or the signature and acknowledgment of all persons required to bind
any party need not appear on each counterpart. Signature pages and
acknowledgment pages may be detached from this Guaranty without impairing
the legal effects of the signature(s) thereon and attached to a
counterpart original to form a fully-executed original of this Guaranty.
All counterparts shall be deemed an original for all purposes and
collectively constitute a single instrument.
Section 6.11 Rights Cumulative. Each right and remedy of Lender
under this Guaranty, the Note, the Mortgage and any other Loan Documents,
shall be in addition to every other right and remedy of Lender and such
rights and remedies may be enforced separately or in any combination.
Section 6.12 Notices. Any notice given or required to be given
under this Guaranty shall be given and deemed delivered in accordance with
the Mortgage.
Section 6.13. Governing Law. This Guaranty 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.
[PAGE ENDS HERE - SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of
the day and year first set forth above.
GUARANTOR:
POWER REIT, a Maryland real estate
Investment trust
By:/s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
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.
