POWER PLANT OPERATION AND DEVELOPMENT LEASE WITH PURCHASE OPTION

Except for activities required by law or at the direction of any Regulatory Authority, Tenant shall obtain Landlord's written approval of any proposed investigation, remediation, cleanup, or other work prior to undertaking any actions required by this Section 6.03(C). Tenant shall not perform any invasive testing or testing or investigations which would involve excavation of the soil, monitoring wells, disturbance of the slab of the foundation of any improvements on the Premises, or disturbance of the structural elements of improvements on the Premises, without Landlord's prior written consent. However, Landlord hereby consents to Tenant's obtaining a Phase I environmental report for the Premises, to be commenced within the first 60 days following the date hereof. Further, Tenant shall not contact any Regulatory Authority, settle any claim, or agree to any activity and use limitation, response action, or remediation plan without Landlord's prior written approval of the action to be taken and the costs thereof (provided, however, nothing herein shall prevent Tenant's disclosure of any release of Hazardous Materials to the extent such disclosure is required by Applicable Law). Tenant shall perform all investigation at Tenant's sole cost and expense.

(H)    Any material misrepresentation herein, or material misrepresentation or omission in any financial statements or other materials provided by Tenant in connection with negotiating or entering into this Lease or in connection with any Transfer under Article XIV.

 

BUYER PREVIOUSLY OCCUPPIED THE PREMISES PURSUANT TO THE LEASE AND CURRENTLY IS IN POSSESSION OF THE PREMISES PURSUANT TO THE LEASE AND IS FAMILIAR WITH THE PREMISES AND THE CHARACTERISTICS THEREOF. BUYER AGREES THAT SELLER SHALL NOT BE LIABLE FOR ANY LATENT OR PATENT DEFECTS IN THE PREMISES OR BOUND IN ANY MANNER WHATSOEVER BY ANY GUARANTEES, PROMISES, PROJECTIONS, OPERATING EXPENSES, OR OTHER INFORMATION PERTAINING TO THE PREMISES MADE, FURNISHED OR CLAIMED TO HAVE BEEN MADE OR FURNISHED, WHETHER ORALLY OR IN WRITING, BY SELLER OR ANY OTHER PERSON OR ENTITY, OR ANY PARTNER, EMPLOYEE, AGENT, ATTORNEY OR OTHER PERSON REPRESENTING OR PURPORTING TO REPRESENT SELLER. BUYER ACKNOWLEDGES THAT NEITHER SELLER NOR ANY OF THE EMPLOYEES, AGENTS OR ATTORNEYS OF SELLER HAVE MADE AND NONE OF THEM SHALL BE DEEMED TO HAVE MADE, ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES WHATSOEVER TO BUYER, WHETHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR THE LEASE, AND, IN PARTICULAR, THAT NO SUCH REPRESENTATIONS AND WARRANTIES HAVE BEEN MADE WITH RESPECT TO THE PHYSICAL CONDITION OR OPERATION OF THE PREMISES, THE ACTUAL OR PROJECTED REVENUE AND EXPENSES OF THE PREMISES, CONTRACTS AFFECTING THE PREMISES, THE DEMAND FOR STEAM, HOT WATER, CHILLED AIR, AND POWER GENERATED BY THE PREMISES, ZONING AND OTHER LAWS, REGULATIONS AND RULES OR THE COMPLIANCE OF THE PREMISES THEREWITH, WHETHER OR NOT THE PREMISES CAN BE REDEVELOPED, THE QUANTITY, QUALITY OR CONDITION OF THE FIXTURES INCLUDED IN THE TRANSACTIONS CONTEMPLATED HEREBY, THE USE OR OCCUPANCY OF THE PREMISES OR ANY PART THEREOF, OR ANY OTHER MATTER OR THING AFFECTING OR RELATING TO THE PREMISES OR THE TRANSACTIONS CONTEMPLATED HEREBY. BUYER HAS NOT RELIED AND IS NOT RELYING UPON ANY REPRESENTATIONS OR WARRANTIES OTHER THAN THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE LEASE, OR UPON ANY STATEMENTS MADE IN ANY INFORMATIONAL MATERIALS WITH RESPECT TO THE PREMISES PROVIDED BY SELLER OR ANY OTHER PERSON OR ENTITY, OR ANY SHAREHOLDER, EMPLOYEE, AGENT, ATTORNEY OR OTHER PERSON REPRESENTING OR PURPORTING TO REPRESENT SELLER. THE RELEASE OF LANDLORD, AND TENANT'S INDEMNITY AND CLEAN-UP OBLIGATIONS UNDER SECTION 6.03 OF THE LEASE SHALL SURVIVE THIS AGREEMENT AND THE DELIVERY OF THE DEED. IN NO EVENT SHALL ANY OF THE MEMBERS, OFFICERS, SHAREHOLDERS, EMPLOYEES, PARENTS, AFFILIATES, OR SUBSIDIARIES OF SELLER BE LIABLE FOR ANY OF SELLER'S OBLIGATIONS UNDER THIS AGREEMENT.

18. Counterparts. This Agreement, any document or instrument entered into, given or made pursuant to this Agreement or authorized hereby, and any amendment or supplement thereto may be executed in two or more counterparts, and, when so executed, will have the same force and effect as though all signatures appeared on a single document. Any signature page of this Agreement or of such an amendment, supplement, document or instrument may be detached from any counterpart without impairing the legal effect of any signatures thereon, and may be attached to another counterpart identical in form thereto but having attached to it one or more additional signature pages.

 

19. Attorney's Fees. If any legal action or any arbitration or other proceeding is brought for the enforcement of this Agreement or any document or instrument entered into, given or made pursuant to this Agreement or authorized hereby or thereby (including, without limitation, the enforcement of any obligation to indemnify, defend or hold harmless provided for herein or therein), or because of an alleged dispute, default, or misrepresentation in connection with any of the provisions of this Agreement or of such document or instrument, or if Escrow Agent commences any action with respect to the Escrow(s), the successful or prevailing party shall be entitled to recover actual attorneys' fees, charges and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.

 

20. Assignment. This Agreement may not be assigned by Buyer, except that it may be assigned by Buyer to the same extent that Buyer is permitted to assign Buyer's interest in the Lease, and subject to the same conditions for assignment as are set forth in the Lease.

FOR VALUE RECEIVED, the undersigned, LAIDLAW NEW BEDFORD BIOPOWER, LLC, a Delaware limited liability company ("Maker" ), promises to pay to the order of MULTILAYER COATING TECHNOLOGIES, LLC, a Delaware limited liability company or its successors and assigns ("Holder") (together, the "Parties"), in accordance with the payment terms contained herein at its offices c/o Watermill Group, One Cranberry Hill, 750 Marrett Road, Lexington, Massachusetts 02421, or at such other address as Holder may designate in writing from time to time, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, the minimum principal sum of TWO MILLION DOLLARS AND NO CENTS ($2,000,000.00), as hereinafter provided in this Note, without interest thereon except from and after and for the duration of an Event of Default (as provided in Section 12 herein). Upon any Event of Default, any amounts then due and payable to Holder hereunder shall bear interest from the date such payment is due until paid at the Default Rate of twelve percent (12%) per annum.

 

2.           The Project.  Maker has acquired the Premises with the intention of constructing and operating thereon a wood biomass combined heat and power generation or other natural gas or fuel-oil powered high-efficiency combined heat and power generation project of up to ten (10) megawatts capacity that will provide combined heat, steam, hot water, chilled water, and/or power for the current and future occupants of the parcels adjacent to the Premises (Lots through as shown on Land Court Plan No. [___________], collectively, the "Complex") and generate power for export to the local electricity grid or other properties (the "Project").

 

3.           Payment Terms. Maker has agreed to pay Holder as the deferred portion of the Purchase Consideration the following compensation:

4.           Project Financing.  In order to develop, construct, operate and maintain the Project, Maker intends to secure financing from third party lenders (including any lessors under a sale-leaseback form of financing transaction) who are unaffiliated with Maker ("Paramount Lenders"). A sale-leaseback financing shall not constitute a sale event under Section 3 hereof. Loans to the Project by Paramount Lenders (i) to finance the development, construction and equipping of the Project, (ii) to refinance construction financing obtained by Maker in connection with the initial construction and equipping of the Project, (iii) to acquire by lease or purchase any machinery and equipment used in connection with the Project, or (iv) to provide permanent financing for the Project from time to time will be secured by one or more mortgages, deeds of trust, or security interests which must at all times be paramount and prior in interest to any mortgage lien or security interest securing this Note (each, a "Paramount Mortgage" or "Paramount Lien").

5.          Installment Sale; Interest.  This Note and the obligations it evidences are not subject to payment of any periodic interest thereon, except after an Event of Default. The Parties intend that the transactions under the Purchase Agreement be treated as an installment sale of the Premises over a ten-year term. If the Internal Revenue Code requires the imputation of interest to the payments received by the Holder hereunder, the Parties agree that the imputed rate shall be the lowest Applicable Federal Rate for comparable obligations as published from time to time by the Internal Revenue Service.

 

6.           Maturity Date and Acceleration on Sale.  This Note, and the payment obligations it evidences, shall mature and be due and payable on the earliest of the following:

 

7.          Prepayment.  Maker reserves the right to prepay the amounts due hereunder at any time, without penalty. Payment of the amount of $2,000,000 less any distributions of Free Cash Flow previously received by Holder hereunder shall constitute payment in full. Prepayment shall be made by wire transfer of immediately available federal funds. Contemporaneously with its receipt of such payment in full, Holder shall discharge the Subordinated Mortgage (as hereinafter defined) and release or terminate its interest in the Free Cash Flow, the Maker, and the Project.

 

 

 

10.         Subordinated Position.  The Subordinated Mortgage and the Free Cash Pledge which secure it, shall at all times be subject and subordinate in priority, operation, and effect to the indebtedness owed from time to time to Paramount Lenders related to financing provided for the purposes set forth in Section 4 hereof that is secured by any Paramount Mortgage or other Paramount Lien. Such subordinate status shall be automatic and shall not require any further action of Holder, but Holder agrees that, within twenty (20) days following written request from Maker, it shall promptly provide such written acknowledgement of subordination in recordable form as may reasonably be requested by Paramount Lenders with respect to a Paramount Mortgage or Paramount Lien consistent with customary commercial lending practices, provided that no such acknowledgement shall have the effect of diminishing or waiving Holder's rights to receive payment under this Note or the lien, operation or effect of the Subordinated Mortgage, or create any additional obligations or liabilities on the part of Holder. The foregoing subordination does not apply to(x) purchase money indebtedness of a purchaser of the Premises other than the original Maker hereunder, or (y) financing for construction or other purposes or projects which is unrelated to the Project, or which is for properties other than the Premises.. The foregoing subordination and enforcement of this Note is further subject to the subordination and other provisions contained in Section 1 of the Subordinated Mortgage. Holder acknowledges that Project financing arrangements may require that Project Revenues be received and disbursed by or on behalf of a Paramount Lender in accordance with the terms and conditions of a loan agreement or security agreement, and that the Free Cash Flow available for payments hereunder may be diminished or delayed in distribution by such arrangements as escrows and reserves.

 

11.         No Joint Venture.  Notwithstanding the structure of the repayment arrangements under this Note, the making of Free Cash Distributions, or Free Cash Pledge, this Note evidences a purchase money obligation in which Maker is the obligor and Holder is the obligee, and nothing in this Note, the Purchase Agreement, or otherwise shall be construed as creating a partnership or joint venture between the Holder and the Maker.

 

12.         Default.  Upon the happening or occurrence of, and the continuance of, an Event of Default (as defined below), this Note shall become immediately due and payable as provided in Section 3(iv) above and the Holder of this Note, at its option, and without any notice, notice of intent to accelerate, notice of acceleration, demand or presentment, all of which are hereby expressly waived by Maker (except for such notices as are provided under this Note), may (i) exercise, pursue, enforce and/or realize upon any right, remedy, lien, security interest, charge, power, benefit or claim provided in this Note and in the Subordinated Mortgage, (ii) offset any amounts due by Maker to Holder hereunder and unpaid against any other amounts that Holder may owe Maker under any power purchase or other agreement, and (iii) exercise, pursue, enforce and/or realize upon any available right or remedy provided at law or in equity. The remedies provided hereunder and under the Subordinated Mortgage shall be cumulative and concurrent, and may be pursued singly, successively, or together against either or any of Maker, the Premises, or the Project, at the sole discretion of Holder. As used in this Note, the term "Event of Default" shall mean and refer to (a) a default in the timely payment of any sums due under the terms of this Note when due and such default shall continue for a period of ten (10) days, (b) the Maker (i) making a general assignment for the benefit of creditors, or (ii) applying for or consenting to the appointment of a receiver, trustee, or liquidator of itself or any part of its property or assets, or (iii) commencing a case seeking relief under any debtor's relief, bankruptcy, insolvency or similar law, whether state or federal, or (iv) admitting the material allegations of any case commenced against it or contained in any petition or complaint seeking relief under any federal or state bankruptcy, insolvency, debtor's relief or similar law, or (v) suffering or permitting any order granting relief against it, or any other judgment, decree or order entered by a court of competent jurisdiction which approves a petition seeking reorganization of it or appoints a receiver, trustee or liquidator of it or of all or a substantial part of its assets and property, or (vi) allowing any default to exist or event of default to occur under the Subordinated Mortgage or on any other material indebtedness of Maker, whether to Holder or to any third party, or (vii) failing to pay Maker's material debts as they become due in the ordinary course, including without limitation default on any indebtedness of Maker, or (viii) transferring or disposing of any of the collateral other than in the ordinary course of Maker's business, or (ix) suffering or permitting the levy or attachment, execution, garnishment, or other process against any property or assets of Maker, or all or substantially all of the property and assets of Maker, and the failure of Maker to have any such attachment, execution, or garnishment or other process dissolved, enjoined or stayed within thirty (30) days after its issuance or levy, or (x) taking or omitting to take any action for the purpose or with the result of effecting or permitting any of the foregoing, or (c) Maker violates the use restrictions set forth in the Deed for the Premises dated on or about the date hereof. The lack of distributable Free Cash Flow to make annual Free Cash Distributions shall not in itself constitute an Event of Default.

If any payment under or pursuant to this Note to Holder is subject to disgorgement, clawback, or a claim arising from Maker's bankruptcy or insolvency, then Maker's obligation to make such payment obligation shall be reinstated hereunder as if such payment had not been made.

 

13.         No Waiver.  No delay or forbearance on the part of the Holder of this Note in the exercise of any power, option, right or remedy under this Note, or in the collection of any money under this Note, shall operate as, or constitute, a waiver of such Holder's right to exercise any such power, right, option or remedy or to collect any such money, nor render the Holder of this Note liable for damages or to account for any such money not collected. No single or partial exercise of any power, right, option or remedy provided to the Holder of this Note under this Note shall preclude any other or further exercise of any such power, right, option or remedy or the exercise of any other power, right, option or remedy provided under this Note. The exercise or enforcement by the Holder of this Note of any right, remedy, option or power shall not constitute any election by it of remedies so as to preclude or prejudice the exercise of any other right, remedy or power available to it, and Maker shall remain liable for all amounts remaining unpaid with respect to the principal of and interest accrued on this Note, after any application of proceeds of any such exercise or enforcement of any right, remedy or power available to the Holder of this Note. This Note may not be modified except by a writing signed by Holder and Maker.

 

14.         Acceptance of Late or Partial Payments.  The Holder of this Note may, at the Holder's discretion and as an accommodation to Maker, accept late or partial payment of any amount due under this Note; provided, however, that acceptance of one or more late or partial payments shall not constitute a waiver of any default nor of any of the Holder's right to receive timely payment of any other payment. Acceptance of any payment, whether partial or otherwise, after the happening or occurrence of an Event of Default and the acceleration of the due date of this Note shall not impair any of the Holder's rights or remedies under this Note.

 

15.         Governing Law.  This Note shall be construed in accordance with and governed by the laws (other than the choice of law rules) of the Commonwealth of Massachusetts and the laws (other than the choice of law rules) of the United States of America applicable to transactions in the Commonwealth of Massachusetts.

16.         Assignment.  This Note is assignable by Holder on the following conditions: (i) Maker will have the right of first offer to purchase this Note as set forth below, and (ii) the assignee will agree in writing to be bound by all terms, conditions, and affirmative obligations of this Note and of the Subordinated Mortgage, including the subordination and estoppels provisions of this Note and such Subordinated Mortgage, and the assignee shall provide its address for notices to Maker and any Paramount Lender whose Paramount Mortgage or Paramount Lien appears of record.

 

If Holder proposes to sell its interest in the Note for a current, liquidated sum separate from its interest in the remainder of the New Bedford industrial park, then before such sale, Holder shall first offer to sell its interest in this Note to Maker, by written notice given to Maker setting forth the proposed sales price. Maker shall have ten (10) business days to accept such offer in writing, time being of the essence. If Maker does not accept such offer within such ten (10) business day period, then Holder may sell its interest in the Note at any time for a sales price which is at least ninety-five percent (95%) of the price offered to Holder, and Holder's right of first offer shall expire and be of no force or effect with respect to any sale for a price which is at least ninety-five percent (95%) of the price offered to Holder. If Maker does timely accept such offer, then within five (5) business days of such acceptance, Maker shall pay to Holder the proposed sales price set forth in Holder's notice, by wire of immediately available funds to an account designated by Holder. Upon receipt of such payment, Holder shall discharge the Subordinated Mortgage and release or terminate its interest in the Free Cash Flow, the Maker, and the Project. The foregoing right of first offer shall not apply to assignments of the Holder's interest in this Note to another corporation, partnership, limited liability company, or other entity or individual which is majority owned by one or more of the partners or members of the original Holder, but as a condition to such assignment such new company shall agree in writing to be bound by all terms, conditions, and affirmative obligations of this Note and of the Subordinated Mortgage.

 

17.         Usury Waiver.  MAKER WAIVES ALL RIGHTS AND DEFENSES TO PAYMENT OF THE OBLIGATIONS HEREUNDER BASED ON USURY OR ANY CLAIM THAT THE AMOUNTS PAYABLE HEREUNDER EXCEED THE AMOUNT OF INTEREST PAYABLE UNDER APPLICABLE LAW.

 

18.         Attorney's Fees and Costs.  Either Holder or Maker, if it is the prevailing party in any action to enforce the payment, consent, subordination, audit, or other obligations of the other Party under this Note or the Subordinated Mortgage, may recover its reasonable attorney's fees and costs and expenses in connection with the enforcement of such obligations.

 

19.         Mutual Waiver of Jury Trial.  MAKER AND HOLDER WAIVE ALL RIGHTS TO TRIAL BY JURY OF ANY SUITS, CLAIMS, COUNTERCLAIMS, AND ACTIONS OF ANY KIND ARISING UNDER OR RELATING TO THIS NOTE. MAKER AND HOLDER ACKNOWLEDGE THAT THIS IS A WAIVER OF A LEGAL RIGHT AND EACH REPRESENTS TO THE OTHER PARTY THAT THIS WAIVER IS MADE KNOWINGLY AND VOLUNTARILY. MAKER AND HOLDER AGREE THAT ALL SUCH SUITS, CLAIMS, COUNTERCLAIMS, AND ACTIONS SHALL BE TRIED BEFORE A JUDGE OF A COURT OF COMPETENT JURISDICTION, WITHOUT A JURY.

20.        No Offsets.  No obligations or payment evidenced by this Note shall be deemed to have been offset or shall be offset or compensated by all or part of any claim, cause of action, counterclaim or cross claim, whether liquidated or unliquidated, which Maker may have or claim to have against Holder now or hereafter. Furthermore, in respect to the present indebtedness of, or any future indebtedness incurred by, Maker to Holder, Maker waives, to the fullest extent permitted by law, the benefits of any applicable law, regulation or procedure that substantially provides that, if (i) cross demands for money have existed between persons at any time; (ii) neither demand was barred by the applicable statute of limitations; and (iii) an action is thereafter commenced by one such person, then the other may assert in his answer the defense of payment in that the two demands are compensated so far as they equal each other, notwithstanding that an independent action asserting the claim would at the time of filing the answer be barred by the applicable statute of limitations.

 

21.        Loss, Theft, Destruction or Mutilation of Note.  Maker shall, if this Note is mutilated, destroyed, lost, or stolen, promptly deliver to Holder, in substitution therefor, a new promissory note containing the same terms and conditions as this Note with a notation thereon of the unpaid balance hereunder.

 

22.        Time of the Essence.  Time is of the essence to each and every provision of this Note.

 

23.        Severability.  In case any provision (or any part of any provision) contained in this Note shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision (or remaining part of the affected provision) of this Note, but this Note shall be construed as if such invalid, illegal, or unenforceable provision (or part thereof) had never been contained herein but only to the extent it is invalid, illegal, or unenforceable.

 

24.        Notices.  All notices under or pursuant to this Note shall be in writing.

 

Either party hereto may change its address for notices by written notice to the other party. Notices shall be sent by overnight mail via nationally-recognized reputable courier (such as Fedex) (in which case notice shall be effective one (1) business day after deposit with the courier), or by certified U.S. mail, return receipt requested (in which case notice shall be effective upon receipt, or refusal to accept delivery).

MS SUBORDINATED MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND FIXTURE FILING (this "Mortgage"),  is made as of the____ day of _____________2011, by LAIDLAW NEW BEDFORD BIOPOWER, LLC, a Delaware limited liability company ("Mortgagor"),  to MULTILAYER COATING TECHNOLOGIES, LLC, a Delaware limited liability company (together with its successors and assigns, including each and every holder from time to time of the Note described below, to be indexed as grantee and to be referred to hereinafter as "Mortgagee" and/or "Lender").

A.            Pursuant to that certain Promissory Note and Pledge (the "Note"), dated of even date herewith, Mortgagor has agreed to pay Lender certain sums as more particularly set forth therein, in consideration of Lender's conveyance to Mortgagor of the Real Estate (as hereinafter defined) and certain related property and contracts.

 

B.            Mortgagor holds fee simple title to the real estate legally described on Exhibit A attached to and made a part of this Mortgage (the "Land").

 

C.            Lender has required, among other things, that Mortgagor enter into this Mortgage and grant to Lender a lien and security interest in and to the Real Estate and other collateral as hereinafter provided to secure all of the following (all of which may be referred to collectively as the "Secured Obligations"): (i) payment and performance of all obligations and sums due under the Note, and (ii) performance of each and every obligation, agreement, promise, covenant, warranty, and representation now or hereafter due and owing, made or undertaken by Mortgagor as set forth in the Note and this Mortgage, and in any renewal, modification, restatement or extension of any of the foregoing.

2.           Definitions: As used in this Mortgage, the following terms shall have the meanings indicated below:

"Agreements" shall mean all contracts, Sales Contracts, agreements, warranties, representations, service agreements, maintenance contracts and agreements relating to the use, occupancy, operation, management, leasing, repair and service of the Real Estate or any part thereof, whether presently existing or entered into after the date hereof.

"Bankruptcy Code" shall mean Title 11 of the United States Code entitled "Bankruptcy" as now or hereafter in effect or any successor code thereto.

7.          Payment and Performance of Secured Obligations.  Mortgagor shall pay when due, and shall duly and punctually perform and observe, all of the Secured Obligations, including  without limitation, all terms, provisions, conditions, covenants and agreements on Mortgagor's part to be performed or observed as provided in this Mortgage; and this Mortgage shall secure such payment, performance and observance.

11.           Matters of Record; Compliance. Mortgagor shall (a) timely observe and perform all covenants and obligations contained in recorded instruments affecting the Mortgaged Property in all material respects; (b) not take any action or fail to take any action with respect to any recorded instrument affecting the Mortgaged Property if the taking of such action or failure to take such action would cause a default by Mortgagor thereunder.

17.           Events of Default.  The occurrence of any one or more of the following shall constitute an "Event of Default,"  as such term is used herein:

(a)           An Event of Default shall have occurred under the Note beyond applicable notice and cure periods; or

19.          Waivers and Agreements Regarding Remedies.  To the full extent Mortgagor may do so, Mortgagor hereby:

24.          Lender's Performance of Secured Obligations.  If Mortgage fails to pay or perform any obligation upon any lien which would be senior to this Mortgage (such as, without  limitation, failure to pay real estate taxes when due) and such failure continues for ten (10) days following written notice from Lender, then Lender may cure such failure, the cost of such cure shall be added to the Secured Obligations, and interest shall accrue thereon at the Default Rate.

25.           Successors and Assigns.  This Mortgage and each and every covenant, agreement and other provision hereof shall be binding upon Mortgagor and its successors and assigns (including, without limitation, each and every record owner from time to time of the Mortgaged Property or any other person having an interest therein), and shall inure to the benefit of Lender and its successors and assigns. Wherever herein Lender is referred to, such reference shall be deemed to include the holder from time to time of the Note.

26.          Provisions Severable.  If fulfillment of any provision of this Mortgage or any transaction related hereto shall at any time involve transcending the limit of validity prescribed by Law, then ipsofacto, the obligation to be fulfilled shall be reduced to the limit of such validity; and if any clause or provision herein contained, other than the provisions requiring Mortgagor to pay the Secured Obligations, operates or would prospectively operate to invalidate this Mortgage in whole or in part, then such clause or provision only shall be void, as though not herein contained, and the remainder of this Mortgage shall remain operative and in full force and effect; and if such clause or provision requires Mortgagor to pay any of the Secured Obligations, then at the sole option of Lender, all of the Secured Obligations shall become due and payable.

IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly signed and delivered the day and year first above written.