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FORM OF
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FINANCING STATEMENT
From
[ ]
To
CITICORP NORTH AMERICA, INC.
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Dated: July 1, 2003
Premises: _______________
__________ County
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THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND
FINANCING STATEMENT dated as of July 1, 2003 (this "Mortgage"), by [ ], a
_____________________, having an office c/o KinderCare, 000 XX Xxxxxxxx, Xxxxx
0000, Xxxxxxxx, Xxxxxx 00000 (the "Mortgagor"), to CITICORP NORTH AMERICA, INC.,
a New York banking corporation, having an office at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Mortgagee") as Administrative Agent for the Secured
Parties (as such terms are defined below).
WITNESSETH THAT:
Reference is made to the Revolving Credit Agreement dated as of June [ ],
2003 (this "Agreement"), among KINDERCARE LEARNING CENTERS, INC., a Delaware
corporation (the "Borrower"), the lending institutions from time to time parties
hereto (each a "Lender" and, collectively, the "Lenders"), CITIBANK, N.A., as
Letter of Credit Issuer (such term and each other capitalized term used but not
defined in this introductory statement having the meaning provided in Section
1), CITICORP NORTH AMERICA, INC., as Administrative Agent, CREDIT SUISSE FIRST
BOSTON, acting through its Cayman Islands Branch, as Syndication Agent, and UBS
AG, CAYMAN ISLANDS BRANCH, as Documentation Agent. Capitalized terms used but
not defined herein have the meanings given to them in the Credit Agreement.
In the Credit Agreement, (i) the Lenders have agreed to make revolving
loans (the "Revolving Loans") to the Borrower, (ii) the Swingline Lender has
agreed to make swingline loans (the "Swingline Loans", together with Revolving
Loans, the "Loans") to the Borrower and (iii) the Letter of Credit Issuer has
issued or agreed to issue from time to time Letters of Credit for the account of
the Borrower, in each case pursuant to, upon the terms, and subject to the
conditions specified in, the Credit Agreement. Subject to the terms of the
Credit Agreement, the Borrower may borrow, prepay and reborrow Revolving Loans.
The Credit Agreement provides that the sum of the principal amount of the Loans
and the Letters of Credit from time to time outstanding and secured hereby shall
not exceed $125,000,000.
[Mortgagor is the Borrower and will derive substantial benefit from the
making of the Loans by the Lenders and the issuance of the Letters of Credit by
the Issuing Bank. In
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order to induce the Lenders to make Loans and the Issuing Bank to issue Letters
of Credit, the Mortgagor has agreed to grant this Mortgage to secure, among
other things, the due and punctual payment and performance of all of the
obligations of the Borrower under the Credit Agreement.]
[Mortgagor is a wholly owned Subsidiary of the Borrower and will derive
substantial benefit from the making of the Loans by the Lenders and the issuance
of the Letters of Credit by the Issuing Bank. In order to induce the Lenders to
make Loans and the Issuing Bank to issue Letters of Credit, the Mortgagor has
agreed to guarantee, among other things, the due and punctual payment and
performance of all of the obligations of the Borrower under the Credit Agreement
pursuant to the terms of the Guarantee.]/1
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit are conditioned upon, among other things, the execution
and delivery by the Mortgagor of this Mortgage in the form hereof to secure (i)
the due and punctual payment of (x) the principal of and premium, if any, and
interest at the applicable rate provided in the Credit Agreement (including
interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (y) each payment required to be made by the Borrower under the Credit
Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement of disbursements made by the Letter of
Credit Issuer, interest thereon and obligations to provide cash collateral in
connection therewith, and (z) all other monetary obligations, including fees,
costs, expenses and indemnities, whether primary, secondary, direct, contingent,
fixed or otherwise (including monetary obligations incurred during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding), of the Borrower
or any other Credit Party to any of the Secured Parties under the Credit
Agreement and the other Credit Documents, (ii) the due and punctual performance
of all covenants, agreements, obligations and liabilities of the
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/1 Only one of the two immediately preceding paragraphs should appear in any
particular Mortgage.
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Borrower under or pursuant to the Credit Agreement and the other Credit
Documents, (iii) the due and punctual payment and performance of all the
covenants, agreements, obligations and liabilities of each other Credit Party
under or pursuant to this Agreement or the other Credit Documents and (iv)
unless otherwise agreed in writing by the applicable Lender (or affiliate of a
Lender) party thereto, the due and punctual payment and performance of all
obligations of each Credit Party under each Hedge Agreement that (x) is in
effect on the Closing Date with a counterparty that is a Lender or an affiliate
of a Lender as of the Closing Date or (y) is entered into after the Closing Date
with any counterparty that is a Lender or an affiliate of a Lender at the time
such Hedge Agreement is entered into (all the monetary and other obligations
referred to in clauses (i) through (iv) being referred to collectively as the
"Obligations").
As used in this Mortgage, the term "Secured Parties" shall mean (i) the
Lenders, (ii) the Letter of Credit Issuer, (iii) the Swingline Lender, (iv) the
Administrative Agent, (v) the Syndication Agent, (vi) the Documentation Agent,
(vii) each counterparty to a Hedge Agreement entered into with the Borrower the
obligations under which constitute Obligations, (viii) the beneficiaries of each
indemnification obligation undertaken by any Credit Party under any Credit
Document and (ix) any successors, indorsees, transferees and assigns of each of
the foregoing.
Pursuant to the requirements of the Credit Agreement, the Mortgagor is
granting this Mortgage to create a lien on and a security interest in the
Mortgaged Property (as hereinafter defined) to secure the performance and
payment by the Mortgagor of the Obligations. The Credit Agreement also requires
the granting by [the Mortgagor and/or] other Credit Parties of mortgages, deeds
of trust and/or deeds to secure debt (the "Other Mortgages") that create liens
on and security interests in certain real and personal property other than the
Mortgaged Property to secure the performance of the Obligations.
Granting Clauses
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and in order to secure
the due and punctual payment and performance of the Obligations for the benefit
of the Secured Parties, Mortgagor hereby grants, conveys, mortgages, assigns and
pledges to the Mortgagee, a mortgage lien on and a security interest in, all the
following described property (the
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"Mortgaged Property") whether now owned or hereafter acquired by Mortgagor:
(1) the land more particularly described on Exhibit A hereto (the
"Land"), together with all rights appurtenant thereto, including the
easements over certain other adjoining land granted by any easement
agreements, covenant or restrictive agreements and all air rights, mineral
rights, water rights, oil and gas rights and development rights, if any,
relating thereto, and also together with all of the other easements,
rights, privileges, interests, hereditaments and appurtenances thereunto
belonging or in any way appertaining and all of the estate, right, title,
interest, claim or demand whatsoever of Mortgagor therein and in the
streets and ways adjacent thereto, either in law or in equity, in
possession or expectancy, now or hereafter acquired (the "Premises");
(2) all buildings, improvements, structures, paving, parking areas,
walkways and landscaping now or hereafter erected or located upon the Land,
and all fixtures of every kind and type affixed to the Premises or attached
to or forming part of any structures, buildings or improvements and
replacements thereof now or hereafter erected or located upon the Land (the
"Improvements");
(3) all apparatus, movable appliances, building materials, equipment,
fittings, furnishings, furniture, machinery and other articles of tangible
personal property of every kind and nature, and replacements thereof, now
or at any time hereafter placed upon or used in any way in connection with
the use, enjoyment, occupancy or operation of the Improvements and the
Premises, including all of Mortgagor's books and records relating thereto
and including all pumps, tanks, goods, machinery, tools, equipment, lifts
(including fire sprinklers and alarm systems, fire prevention or control
systems, cleaning rigs, air conditioning, heating, boilers, refrigerating,
electronic monitoring, water, loading, unloading, lighting, power,
sanitation, waste removal, entertainment, communications, computers,
recreational, window or structural, maintenance, truck or car repair and
all other equipment of every kind), restaurant, bar and all other indoor or
outdoor furniture (including tables, chairs, booths, serving stands,
planters, desks, sofas, racks, shelves, lockers and cabinets), bar
equipment, glasses, cutlery, uniforms,
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linens, memorabilia and other decorative items, furnishings, appliances,
supplies, inventory, rugs, carpets and other floor coverings, draperies,
drapery rods and brackets, awnings, venetian blinds, partitions,
chandeliers and other lighting fixtures, freezers, refrigerators, walk-in
coolers, signs (indoor and outdoor), computer systems, cash registers and
inventory control systems, and all other apparatus, equipment, furniture,
furnishings, and articles used in connection with the use or operation of
the Improvements or the Premises, it being understood that the enumeration
of any specific articles of property shall in no way result in or be held
to exclude any items of property not specifically mentioned (the property
referred to in this subparagraph (3), the "Personal Property");
(4) all general intangibles owned by Mortgagor and relating to design,
development, operation, management and use of the Premises or the
Improvements, all certificates of occupancy, zoning variances, building,
use or other permits, approvals, authorizations and consents obtained from
and all materials prepared for filing or filed with any governmental agency
in connection with the development, use, operation or management of the
Premises and Improvements, all construction, service, engineering,
consulting, leasing, architectural and other similar contracts concerning
the design, construction, management, operation, occupancy and/or use of
the Premises and Improvements, all architectural drawings, plans,
specifications, soil tests, feasibility studies, appraisals, environmental
studies, engineering reports and similar materials relating to any portion
of or all of the Premises and Improvements, and all payment and performance
bonds or warranties or guarantees relating to the Premises or the
Improvements, all to the extent assignable (the "Permits, Plans and
Warranties");
(5) all now or hereafter existing leases or licenses (under which
Mortgagor is landlord or licensor) and subleases (under which Mortgagor is
sublandlord), concession, management, mineral or other agreements of a
similar kind that permit the use or occupancy of the Premises or the
Improvements for any purpose in return for any payment, or the extraction
or taking of any gas, oil, water or other minerals from the Premises in
return for payment of any fee, rent or royalty (collectively,
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"Leases"), and all agreements or contracts for the sale or other
disposition of all or any part of the Premises or the Improvements, now or
hereafter entered into by Mortgagor, together with all charges, fees,
income, issues, profits, receipts, rents, revenues or royalties payable
thereunder ("Rents");
(6) all real estate tax refunds and all proceeds of the conversion,
voluntary or involuntary, of any of the Mortgaged Property into cash or
liquidated claims ("Proceeds"), including Proceeds of insurance maintained
by the Mortgagor and condemnation awards, any awards that may become due by
reason of the taking by eminent domain or any transfer in lieu thereof of
the whole or any part of the Premises or Improvements or any rights
appurtenant thereto, and any awards for change of grade of streets,
together with any and all moneys now or hereafter on deposit for the
payment of real estate taxes, assessments or common area charges levied
against the Mortgaged Property, unearned premiums on policies of fire and
other insurance maintained by the Mortgagor covering any interest in the
Mortgaged Property or required by the Credit Agreement; and
(7) all extensions, improvements, betterments, renewals, substitutes
and replacements of and all additions and appurtenances to, the Land, the
Premises, the Improvements, the Personal Property, the Permits, Plans and
Warranties and the Leases, hereinafter acquired by or released to the
Mortgagor or constructed, assembled or placed by the Mortgagor on the Land,
the Premises or the Improvements, and all conversions of the security
constituted thereby, immediately upon such acquisition, release,
construction, assembling, placement or conversion, as the case may be, and
in each such case, without any further mortgage, deed of trust, conveyance,
assignment or other act by the Mortgagor, all of which shall become subject
to the lien of this Mortgage as fully and completely, and with the same
effect, as though now owned by the Mortgagor and specifically described
herein.
TO HAVE AND TO HOLD the Mortgaged Property unto the Mortgagee, its
successors and assigns, for the ratable benefit of the Secured Parties, forever,
subject only to Permitted Liens and to satisfaction and release as provided in
Section 3.04.
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ARTICLE I
Representations, Warranties and Covenants of Mortgagor
Mortgagor agrees, covenants, represents and/or warrants as follows:
SECTION 1.01. Title, Mortgage Lien. (a) Mortgagor has good and marketable
fee simple title to the Land, subject only to Permitted Liens.
(b) Mortgagor has the corporate or other organizational power and authority
to execute, deliver and carry out the terms and provisions of this Mortgage and
has taken all necessary corporate or other organizational action to authorize
the execution, delivery and performance of this Mortgage. Mortgagor has duly
executed and delivered this Mortgage and this Mortgage constitutes the legal,
valid and binding obligation of Mortgagor and this Mortgage is enforceable in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights generally
and subject to general principles of equity.
(c) To the best of Mortgagor's knowledge, neither the execution, delivery
and performance by Mortgagor of this Mortgage nor compliance with the terms and
provisions thereof nor the consummation of the transactions contemplated hereby
or by the Closing Date Securitization will (a) contravene any applicable
provision of any material law, statute, rule, regulation, order, writ,
injunction or decree of any court or governmental instrumentality, (b) result in
any breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the property or assets of
the Borrower or any of the Restricted Subsidiaries (other than Liens created
under the Credit Documents) pursuant to the terms of any material indenture,
loan agreement, lease agreement, mortgage, deed of trust, agreement or other
material instrument to which the Borrower or any of the Restricted Subsidiaries
is a party or by which it or any of its property (including the Mortgaged
Properties) or assets is bound or (c) violate any provision of the certificate
of incorporation or By-Laws (or equivalent organizational document) of the
Borrower or any of the Restricted Subsidiaries.
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(d) This Mortgage and the Uniform Commercial Code Financing Statements
described in Section 1.09 of this Mortgage, when duly recorded in the public
records identified in the Perfection Certificate will create a valid, perfected
and enforceable lien upon and security interest in all of the Mortgaged
Property.
(e) Mortgagor will forever warrant and defend its title to the Mortgaged
Property, the rights of Mortgagee therein under this Mortgage and the validity
and priority of the lien of this Mortgage thereon against the claims of all
persons and parties except those having rights under Permitted Liens to the
extent of those rights.
SECTION 1.02. Credit Agreement. This Mortgage is given pursuant to the
Credit Agreement. Mortgagor expressly covenants and agrees to pay when due, and
to timely perform, or to cause the other Credit Parties to pay when due, and to
timely perform, the Obligations in accordance with the terms of the Credit
Documents.
SECTION 1.03. Payment of Taxes, and Other Obligations. (a) Mortgagor will
pay and discharge or cause to be paid or discharged from time to time prior to
the time when the same shall become delinquent, and before any interest or
penalty accrues thereon or attaches thereto, all taxes and other obligations
with respect to the Mortgaged Property or any part thereof or upon the Rents
from the Mortgaged Property or arising in respect of the occupancy, use or
possession thereof in accordance with, and to the extent required by, the Credit
Agreement.
(b) In the event of the passage of any state, Federal, municipal or other
governmental law, order, rule or regulation subsequent to the date hereof (i)
deducting from the value of real property for the purpose of taxation any lien
or encumbrance thereon or in any manner changing or modifying the laws now in
force governing the taxation of this Mortgage or debts secured by mortgages or
deeds of trust (other than laws governing income, franchise and similar taxes
generally) or the manner of collecting taxes thereon and (ii) imposing a tax to
be paid by Mortgagee, either directly or indirectly, on this Mortgage or any of
the Credit Documents, or requiring an amount of taxes to be withheld or deducted
therefrom, Mortgagor will promptly (i) notify Mortgagee of such event, and (ii)
enter into such further instruments as Mortgagee may determine are reasonably
necessary or desirable to obligate Mortgagor to make any additional payments
necessary to put the
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Lenders and Secured Parties in the same financial position they would have been
if such law, order, rule or regulation had not been passed.
SECTION 1.04. Maintenance of Mortgaged Property. Mortgagor will maintain or
cause to be maintained the Improvements and the Personal Property in the manner
required by the Credit Agreement.
SECTION 1.05. Insurance. Mortgagor will keep or cause to be kept the
Improvements and Personal Property insured against such risks, and in the
manner, described in Section 9.3 of the Credit Agreement and shall purchase or
cause to be purchased such additional insurance as may be required from time to
time pursuant to Section 9.3 of the Credit Agreement. If any portion of the
Mortgaged Property is located in an area identified as a special flood hazard
area by Federal Emergency Management Agency or other applicable agency,
Mortgagor will purchase flood insurance in an amount satisfactory to Mortgagee,
but in no event less than the maximum limit of coverage available under the
National Flood Insurance Act of 1968, as amended.
SECTION 1.06. Casualty Condemnation/Eminent Domain. Mortgagor shall give
Mortgagee prompt written notice of any casualty or other damage to the Mortgaged
Property in excess of $100,000 or any proceeding for the taking of the Mortgaged
Property in excess of $100,000 or any portion thereof or interest therein under
power of eminent domain or by condemnation. Any net cash proceeds in excess of
$100,000 received by or on behalf of the Mortgagor in respect of any such
casualty, damage or taking shall constitute trust funds held by the Mortgagor
for the benefit of the Secured Parties to be applied to repair, restore or
replace the Mortgaged Property.
SECTION 1.07. Assignment of Leases and Rents. (a) Mortgagor hereby
irrevocably and absolutely grants, transfers and assigns all of its right title
and interest in all Leases, together with any and all extensions and renewals
thereof for purposes of securing and discharging the performance by Mortgagor of
the Obligations. Mortgagor has not assigned or executed any assignment of, and
except as permitted under the Credit Agreement will not assign or execute any
assignment of, any Leases or the Rents payable thereunder to anyone other than
Mortgagee.
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(b) All Leases shall be subordinate to the lien of this Mortgage. Mortgagor
will not enter into, modify or amend any Lease if such Lease, as entered into,
modified or amended, will not be subordinate to the lien of this Mortgage.
Immaterial Lease shall mean, any document, instrument or agreement (whether
written or oral) that would qualify as a "Lease" for purposes of this Mortgage
if such document, instrument or agreement is: (i) for a term of not more than
five years, (ii) terminable at the option of the Borrower upon reasonable
notice, and (iii) for less than 25% of the square footage of any child care
center building located on the Property.
(c) Subject to Section 1.07(d), Mortgagor has assigned and transferred to
Mortgagee all of Mortgagor's right, title and interest in and to the Rents now
or hereafter arising from each Lease heretofore or hereafter made or agreed to
by Mortgagor, it being intended that this assignment establishes, subject to
Section 1.07(d), an absolute transfer and assignment of all Rents and all Leases
to Mortgagee and not merely to grant a security interest therein. Subject to
Section 1.07(d) and the Credit Agreement, Mortgagee may in Mortgagor's name and
stead (with or without first taking possession of any of the Mortgaged Property
personally or by receiver as provided herein) operate the Mortgaged Property and
rent, lease or let all or any portion of any of the Mortgaged Property to any
party or parties at such rental and upon such terms as Mortgagee shall, in its
sole discretion, determine, and may collect and have the benefit of all of said
Rents arising from or accruing at any time thereafter or that may thereafter
become due under any Lease.
(d) So long as an Event of Default shall not have occurred and be
continuing, Mortgagee will not exercise any of its rights under Section 1.07(c),
and Mortgagor shall receive and collect the Rents accruing under any Lease; but
after the happening and during the continuance of any Event of Default,
Mortgagee may, at its option, receive and collect all Rents and enter upon the
Premises and Improvements through its officers, agents, employees or attorneys
for such purpose and for the operation and maintenance thereof. Mortgagor hereby
irrevocably authorizes and directs each tenant, if any, and each successor, if
any, to the interest of any tenant under any Lease, respectively, to rely upon
any notice of a claimed Event of Default sent by Mortgagee to any such tenant or
any of such tenant's successors in interest, and thereafter to pay Rents to
Mortgagee without any obligation or right to inquire
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as to whether an Event of Default actually exists and even if some notice to the
contrary is received from the Mortgagor, who shall have no right or claim
against any such tenant or successor in interest for any such Rents so paid to
Mortgagee. Each tenant or any of such tenant's successors in interest from whom
Mortgagee or any officer, agent, attorney or employee of Mortgagee shall have
collected any Rents, shall be authorized to pay Rents to Mortgagor only after
such tenant or any of their successors in interest shall have received written
notice from Mortgagee that the Event of Default is no longer continuing, unless
and until a further notice of an Event of Default is given by Mortgagee to such
tenant or any of its successors in interest.
(e) Mortgagee will not become a mortgagee in possession so long as it does
not enter or take actual possession of the Mortgaged Property. In addition,
Mortgagee shall not be responsible or liable for performing any of the
obligations of the landlord under any Lease, for any waste by any tenant, or
others, for any dangerous or defective conditions of any of the Mortgaged
Property, for negligence in the management, upkeep, repair or control of any of
the Mortgaged Property or any other act or omission by any other person.
(f) Mortgagor shall furnish to Mortgagee, within 30 days after a request by
Mortgagee to do so, a written statement containing the names of all tenants,
subtenants and concessionaires of the Premises or Improvements, the terms of any
Lease, the space occupied and the rentals and/or other amounts payable
thereunder.
SECTION 1.08. Restrictions on Transfers and Encumbrances. Mortgagor shall
not directly or indirectly sell, convey, alienate, assign, lease, sublease,
license, mortgage, pledge, encumber or otherwise transfer, create, consent to or
suffer the creation of any lien, charge or other form of encumbrance upon any
interest in or any part of the Mortgaged Property, or be divested of its title
to the Mortgaged Property or any interest therein in any manner or way, whether
voluntarily or involuntarily (other than resulting from a condemnation), or
engage in any common, cooperative, joint, time-sharing or other congregate
ownership of all or part thereof, except in each case to the extent not
prohibited by the Credit Agreement; provided, that Mortgagor may, in the
ordinary course of business and in accordance with reasonable commercial
standards, enter into easement or covenant agreements that relate to and/or
benefit the operation of the Mortgaged Property and that do not materially
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and adversely affect the value, use or operation of the Mortgaged Property.
SECTION 1.09. Security Agreement. This Mortgage is both a mortgage of real
property and a grant of a security interest in personal property, and shall
constitute and serve as a "Security Agreement" within the meaning of the uniform
commercial code as adopted in the state wherein the Premises are located
("UCC"). Mortgagor has hereby granted unto Mortgagee a security interest in and
to all the Mortgaged Property described in this Mortgage that is not real
property, and simultaneously with the recording of this Mortgage, Mortgagor has
filed or will file UCC financing statements, at the appropriate offices in the
state in which the Premises are located to perfect the security interest granted
by this Mortgage in all the Mortgaged Property that is not real property.
Mortgagor hereby appoints Mortgagee as its true and lawful attorney-in-fact and
agent, for Mortgagor and in its name, place and stead, in any and all
capacities, to execute any document and to file the same in the appropriate
offices (to the extent it may lawfully do so), and to perform each and every act
and thing reasonably requisite and necessary to be done to perfect the security
interest contemplated by the preceding sentence. Mortgagee shall have all rights
with respect to the part of the Mortgaged Property that is the subject of a
security interest afforded by the UCC in addition to, but not in limitation of,
the other rights afforded Mortgagee hereunder and under the Security Agreement.
SECTION 1.10. Filing and Recording. Mortgagor will cause this Mortgage, the
UCC financing statements referred to in Section 1.09, any other security
instrument creating a security interest in or evidencing the lien hereof upon
the Mortgaged Property and each UCC continuation statement and instrument of
further assurance to be filed, registered or recorded and, if necessary,
refiled, rerecorded and reregistered, in such manner and in such places as may
be required by any present or future law in order to publish notice of and fully
to perfect the lien hereof upon, and the security interest of Mortgagee in, the
Mortgaged Property until this Mortgage is terminated and released in full in
accordance with Section 3.04 hereof. Mortgagor will pay or cause to be paid all
filing, registration and recording fees, all Federal, state, county and
municipal recording, documentary or intangible taxes and other taxes, duties,
imposts, assessments and charges, and all reasonable expenses incidental to or
arising out of or in connection with the
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execution, delivery and recording of this Mortgage, UCC continuation statements
any mortgage supplemental hereto, any security instrument with respect to the
Personal Property, Permits, Plans and Warranties and Proceeds or any instrument
of further assurance.
SECTION 1.11. Further Assurances. Upon demand by Mortgagee, Mortgagor will,
at the cost of Mortgagor and without expense to Mortgagee, do, execute,
acknowledge and deliver all such further acts, deeds, conveyances, mortgages,
assignments, notices of assignment, transfers and assurances as Mortgagee shall
from time to time reasonably require for the better assuring, conveying,
assigning, transferring and confirming unto Mortgagee the property and rights
hereby conveyed or assigned or intended now or hereafter so to be, or which
Mortgagor may be or may hereafter become bound to convey or assign to Mortgagee,
or for carrying out the intention or facilitating the performance of the terms
of this Mortgage, or for filing, registering or recording this Mortgage, and on
demand, Mortgagor will also execute and deliver and hereby appoints Mortgagee as
its true and lawful attorney-in-fact and agent, for Mortgagor and in its name,
place and stead, in any and all capacities, to execute and file to the extent it
may lawfully do so, one or more financing statements, chattel mortgages or
comparable security instruments reasonably requested by Mortgagee to evidence
more effectively the lien hereof upon the Personal Property and to perform each
and every act and thing requisite and necessary to be done to accomplish the
same.
SECTION 1.12. Additions to Mortgaged Property. All right, title and
interest of Mortgagor in and to all extensions, improvements, betterments,
renewals, substitutes and replacements of, and all additions and appurtenances
to, the Mortgaged Property hereafter acquired by or released to Mortgagor or
constructed, assembled or placed by Mortgagor upon the Premises or the
Improvements, and all conversions of the security constituted thereby,
immediately upon such acquisition, release, construction, assembling, placement
or conversion, as the case may be, and in each such case without any further
mortgage, conveyance, assignment or other act by Mortgagor, shall become subject
to the lien and security interest of this Mortgage as fully and completely and
with the same effect as though now owned by Mortgagor and specifically described
in the grant of the Mortgaged Property above, but at any and all times Mortgagor
will execute and deliver to Mortgagee any and all such further assurances,
mortgages,
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conveyances or assignments thereof as Mortgagee may reasonably require for the
purpose of expressly and specifically subjecting the same to the lien and
security interest of this Mortgage.
SECTION 1.13. No Claims Against Mortgagee. Nothing contained in this
Mortgage shall constitute any consent or request by Mortgagee, express or
implied, for the performance of any labor or services or the furnishing of any
materials or other property in respect of the Mortgaged Property or any part
thereof, nor as giving Mortgagor any right, power or authority to contract for
or permit the performance of any labor or services or the furnishing of any
materials or other property in such fashion as would permit the making of any
claim against Mortgagee in respect thereof.
SECTION 1.14. Fixture Filing. Certain portions of the Mortgaged Property
are or will become "fixtures" (as that term is defined in the UCC) on the Land,
and this Mortgage, upon being filed for record in the real estate records of the
county wherein such fixtures are situated, shall operate also as a financing
statement filed as a fixture filing in accordance with the applicable provisions
of said UCC upon such portions of the Mortgaged Property that are or become
fixtures.
ARTICLE II
Defaults and Remedies
SECTION 2.01. Events of Default. Any Event of Default under the Credit
Agreement (as such term is defined therein) shall constitute an Event of Default
under this Mortgage.
SECTION 2.02. Demand for Payment. Unless otherwise provided for in the
Credit Agreement, if an Event of Default shall occur and be continuing, then,
upon written demand of Mortgagee, Mortgagor will pay to Mortgagee all amounts
due hereunder and under the Credit Agreement and such further amount as shall be
sufficient to cover the reasonable costs and expenses of collection, including
reasonable attorneys' fees, disbursements and expenses incurred by Mortgagee,
and Mortgagee shall be entitled and empowered to institute an action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, to prosecute any such action or proceedings to judgment or final decree,
to enforce any such judgment or final decree against Mortgagor and to collect,
in
15
any manner provided by law, all moneys adjudged or decreed to be payable.
SECTION 2.03. Rights To Take Possession, Operate and Apply Revenues. (a) If
an Event of Default shall occur and be continuing, Mortgagor shall, upon demand
of Mortgagee, forthwith surrender to Mortgagee actual possession of the
Mortgaged Property and, if and to the extent not prohibited by applicable law,
Mortgagee itself, or by such officers or agents as it may appoint, may then
enter and take possession of all the Mortgaged Property without the appointment
of a receiver or an application therefor, exclude Mortgagor and its agents and
employees wholly therefrom, and have access to the books, papers and accounts of
Mortgagor.
(b) If Mortgagor shall for any reason fail to surrender or deliver the
Mortgaged Property or any part thereof after such demand by Mortgagee, Mortgagee
may to the extent not prohibited by applicable law, obtain a judgment or decree
conferring upon Mortgagee the right to immediate possession or requiring
Mortgagor to deliver immediate possession of the Mortgaged Property to
Mortgagee, to the entry of which judgment or decree Mortgagor hereby
specifically consents. Mortgagor will pay to Mortgagee, upon demand, all
reasonable expenses of obtaining such judgment or decree, including reasonable
compensation to Mortgagee's attorneys and agents together with interest thereon
at a rate per annum equal to the default rate of interest set forth in clause
(y) of Section 2.8(c) of the Credit Agreement (the "Interest Rate"), from and
including the date payment is demanded by the Administrative Agent to but
excluding the date reimbursed by such Grantor, shall be payable by the Borrower
to the Administrative Agent on demand; and all such expenses and compensation
shall, until paid, be secured by this Mortgage.
(c) Upon every such entry or taking of possession, Mortgagee may, to the
extent not prohibited by applicable law, hold, store, use, operate, manage and
control the Mortgaged Property, conduct the business thereof and, from time to
time, (i) make all necessary and proper maintenance, repairs, renewals,
replacements, additions, betterments and improvements thereto and thereon, (ii)
purchase or otherwise acquire additional fixtures, personalty and other
property, (iii) insure or keep the Mortgaged Property insured, (iv) manage and
operate the Mortgaged Property and exercise all the rights and powers of
Mortgagor to the same extent as Mortgagor could in its own name or otherwise
with respect to the same, or (v) enter into any and all agreements with
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respect to the exercise by others of any of the powers herein granted Mortgagee,
all as may from time to time be directed or determined by Mortgagee to be in its
best interest and Mortgagor hereby appoints Mortgagee as its true and lawful
attorney-in-fact and agent, for Mortgagor and in its name, place and stead, in
any and all capacities, to perform any of the foregoing acts. Mortgagee may
collect and receive all the Rents, issues, profits and revenues from the
Mortgaged Property, including those past due as well as those accruing
thereafter, and, after deducting (i) all expenses of taking, holding, managing
and operating the Mortgaged Property (including compensation for the services of
all persons employed for such purposes), (ii) the costs of all such maintenance,
repairs, renewals, replacements, additions, betterments, improvements, purchases
and acquisitions, (iii) the costs of insurance, (iv) such taxes, assessments and
other similar charges as Mortgagee may at its option pay, (v) other proper
charges upon the Mortgaged Property or any part thereof and (vi) the
compensation, expenses and disbursements of the attorneys and agents of
Mortgagee, Mortgagee shall apply the remainder of the moneys and proceeds so
received first to the payment of the Mortgagee for the satisfaction of the
Obligations, and second, if there is any surplus, to Mortgagor, subject to the
entitlement of others thereto under applicable law.
(d) Whenever, before any sale of the Mortgaged Property under Section 2.06,
all Obligations that are then due shall have been paid and all Events of Default
fully cured, Mortgagee will surrender possession of the Mortgaged Property back
to Mortgagor, its successors or assigns. The same right of taking possession
shall, however, arise again if any subsequent Event of Default shall occur and
be continuing.
SECTION 2.04. Right To Cure Mortgagor's Failure to Perform. Should
Mortgagor fail in the payment, performance or observance of any term, covenant
or condition required by this Mortgage or the Credit Agreement (with respect to
the Mortgaged Property), upon 15 days prior written notice to Mortgagor during
which period Mortgagor shall have the opportunity to cure such failure.
Mortgagee may pay, perform or observe the same, and all payments made or costs
or expenses incurred by Mortgagee in connection therewith shall be secured
hereby and shall be, upon demand, immediately repaid by Mortgagor to Mortgagee
with interest thereon at the Interest Rate. Mortgagee shall be the judge using
reasonable discretion of the necessity for any such actions and of the
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amounts to be paid. Mortgagee is hereby empowered to enter and to authorize
others to enter upon the Premises or the Improvements or any part thereof for
the purpose of performing or observing any such defaulted term, covenant or
condition without having any obligation to so perform or observe and without
thereby becoming liable to Mortgagor, to any person in possession holding under
Mortgagor or to any other person.
SECTION 2.05. Right to a Receiver. If an Event of Default shall occur and
be continuing, Mortgagee, upon application to a court of competent jurisdiction,
shall be entitled as a matter of right to the appointment of a receiver to take
possession of and to operate the Mortgaged Property and to collect and apply the
Rents. The receiver shall have all of the rights and powers permitted under the
laws of the state wherein the Mortgaged Property is located. Mortgagor shall pay
to Mortgagee upon demand all reasonable expenses, including receiver's fees,
reasonable attorney's fees and disbursements, costs and agent's compensation
incurred pursuant to the provisions of this Section 2.05; and all such expenses
shall be secured by this Mortgage and shall be, upon demand, immediately repaid
by Mortgagor to Mortgagee with interest thereon at the Interest Rate.
SECTION 2.06. Foreclosure and Sale. (a) If an Event of Default shall occur
and be continuing, Mortgagee may elect to sell the Mortgaged Property or any
part of the Mortgaged Property by exercise of the power of foreclosure or of
sale granted to Mortgagee by applicable law or this Mortgage. In such case,
Mortgagee may commence a civil action to foreclose this Mortgage, or it may
proceed and sell the Mortgaged Property to satisfy any Obligation. Mortgagee or
an officer appointed by a judgment of foreclosure to sell the Mortgaged
Property, may sell all or such parts of the Mortgaged Property as may be chosen
by Mortgagee at the time and place of sale fixed by it in a notice of sale,
either as a whole or in separate lots, parcels or items as Mortgagee shall deem
expedient, and in such order as it may determine, at public auction to the
highest bidder. Mortgagee or an officer appointed by a judgment of foreclosure
to sell the Mortgaged Property may postpone any foreclosure or other sale of all
or any portion of the Mortgaged Property by public announcement at such time and
place of sale, and from time to time thereafter may postpone such sale by public
announcement or subsequently noticed sale. Without further notice, Mortgagee or
an officer appointed to sell the Mortgaged Property may make such sale at the
time fixed by the last postponement, or
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may, in its discretion, give a new notice of sale. Any person, including
Mortgagor or Mortgagee or any designee or affiliate thereof, may purchase at
such sale.
(b) The Mortgaged Property may be sold subject to unpaid taxes and
Permitted Liens, and, after deducting all costs, fees and expenses of Mortgagee
(including costs of evidence of title in connection with the sale), Mortgagee or
an officer that makes any sale shall apply the proceeds of sale in the manner
set forth in Section 2.08.
(c) Any foreclosure or other sale of less than the whole of the Mortgaged
Property or any defective or irregular sale made hereunder shall not exhaust the
power of foreclosure or of sale provided for herein; and subsequent sales may be
made hereunder until the Obligations have been satisfied, or the entirety of the
Mortgaged Property has been sold.
(d) If an Event of Default shall occur and be continuing, Mortgagee may
instead of, or in addition to, exercising the rights described in Section
2.06(a) above and either with or without entry or taking possession as herein
permitted, proceed by a suit or suits in law or in equity or by any other
appropriate proceeding or remedy (i) to specifically enforce payment of some or
all of the Obligations, or the performance of any term, covenant, condition or
agreement of this Mortgage or any other Credit Document or any other right, or
(ii) to pursue any other remedy available to Mortgagee, all as Mortgagee shall
determine most effectual for such purposes.
SECTION 2.07. Other Remedies. (a) In case an Event of Default shall occur
and be continuing, Mortgagee may also exercise, to the extent not prohibited by
law, any or all of the remedies available to a secured party under the UCC.
(b) In connection with a sale of the Mortgaged Property or any Personal
Property and the application of the proceeds of sale as provided in Section
2.08, Mortgagee shall be entitled to enforce payment of and to receive up to the
principal amount of the Obligations, plus all other charges, payments and costs
due under this Mortgage, and to recover a deficiency judgment for any portion of
the aggregate principal amount of the Obligations remaining unpaid, with
interest.
SECTION 2.08. Application of Sale Proceeds and Rents. Subject to the terms
of the Credit Agreement after any foreclosure sale of all or any of the
Mortgaged Property,
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Mortgagee shall receive and apply the proceeds of the sale together with any
Rents that may have been collected and any other sums that then may be held by
Mortgagee under this Mortgage as follows:
FIRST, to the payment of all costs and expenses incurred by the
Administrative Agent in connection with such collection or sale or
otherwise in connection with this Mortgage, the other Credit Documents or
any of the Obligations, including all court costs and the fees and expenses
of its agents and legal counsel, the repayment of all advances made by the
Administrative Agent hereunder or under any other Credit Document on behalf
of the Mortgagor and any other costs or expenses incurred in connection
with the exercise of any right or remedy hereunder or under any other
Credit Document;
SECOND, to the Secured Parties, an amount equal to all Obligations
owing to them on the date of any such distribution, and, if such moneys
shall be insufficient to pay such amounts in full, then ratably (without
priority of any one over any other) to such Secured Parties in proportion
to the unpaid amounts thereof; and
THIRD, any surplus then remaining shall be paid to the Mortgagors or
their successors or assigns or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct.
The Mortgagee shall have absolute discretion as to the time of application of
any such proceeds, moneys or balances in accordance with this Mortgage. Upon any
sale of the Mortgaged Property by the Mortgagee (including pursuant to a power
of sale granted by statute or under a judicial proceeding), the receipt of the
Mortgagee or of the officer making the sale shall be a sufficient discharge to
the purchaser or purchasers of the Mortgaged Property so sold and such purchaser
or purchasers shall not be obligated to see to the application of any part of
the purchase money paid over to the Mortgagee or such officer or be answerable
in any way for the misapplication thereof.
SECTION 2.09. Mortgagor as Tenant Holding Over. If Mortgagor remains in
possession of any of the Mortgaged Property after any foreclosure sale by
Mortgagee, at Mortgagee's election Mortgagor shall be deemed a tenant holding
over and shall forthwith surrender possession to the purchaser or purchasers at
such sale or be summarily
20
dispossessed or evicted according to provisions of law applicable to tenants
holding over.
SECTION 2.10. Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Mortgagor waives, to the extent not prohibited by law, (i) the
benefit of all laws now existing or that hereafter may be enacted (x) providing
for any appraisement or valuation of any portion of the Mortgaged Property
and/or (y) in any way extending the time for the enforcement or the collection
of amounts due under any of the Obligations or creating or extending a period of
redemption from any sale made in collecting said debt or any other amounts due
Mortgagee, (ii) any right to at any time insist upon, plead, claim or take the
benefit or advantage of any law now or hereafter in force providing for any
homestead exemption, stay, statute of limitations, extension or redemption, or
sale of the Mortgaged Property as separate tracts, units or estates or as a
single parcel in the event of foreclosure or notice of deficiency, and (iii) all
rights of redemption, valuation, appraisement, stay of execution, notice of
election to mature or declare due the whole of or each of the Obligations and
marshaling in the event of foreclosure of this Mortgage.
SECTION 2.11. Discontinuance of Proceedings. In case Mortgagee shall
proceed to enforce any right, power or remedy under this Mortgage by
foreclosure, entry or otherwise, and such proceedings shall be discontinued or
abandoned for any reason, or shall be determined adversely to Mortgagee, then
and in every such case Mortgagor and Mortgagee shall be restored to their former
positions and rights hereunder, and all rights, powers and remedies of Mortgagee
shall continue as if no such proceeding had been taken.
SECTION 2.12. Suits To Protect the Mortgaged Property. Mortgagee shall have
power (a) to institute and maintain suits and proceedings to prevent any
impairment of the Mortgaged Property by any acts that may be unlawful or in
violation of this Mortgage, (b) to preserve or protect its interest in the
Mortgaged Property and in the Rents arising therefrom and (c) to restrain the
enforcement of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of or compliance with such enactment, rule or order would impair
the security or be prejudicial to the interest of Mortgagee hereunder.
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SECTION 2.13. Filing Proofs of Claim. In case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other proceedings affecting Mortgagor, Mortgagee shall, to the extent permitted
by law, be entitled to file such proofs of claim and other documents as may be
necessary or advisable in order to have the claims of Mortgagee allowed in such
proceedings for the Obligations secured by this Mortgage at the date of the
institution of such proceedings and for any interest accrued, late charges and
additional interest or other amounts due or that may become due and payable
hereunder after such date.
SECTION 2.14. Possession by Mortgagee. Notwithstanding the appointment of
any receiver, liquidator or trustee of Mortgagor, any of its property or the
Mortgaged Property, Mortgagee shall be entitled, to the extent not prohibited by
law, to remain in possession and control of all parts of the Mortgaged Property
now or hereafter granted under this Mortgage to Mortgagee in accordance with the
terms hereof and applicable law.
SECTION 2.15. Waiver. (a) No delay or failure by Mortgagee to exercise any
right, power or remedy accruing upon any breach or Event of Default shall
exhaust or impair any such right, power or remedy or be construed to be a waiver
of any such breach or Event of Default or acquiescence therein; and every right,
power and remedy given by this Mortgage to Mortgagee may be exercised from time
to time and as often as may be deemed expedient by Mortgagee. No consent or
waiver by Mortgagee to or of any breach or Event of Default by Mortgagor in the
performance of the Obligations shall be deemed or construed to be a consent or
waiver to or of any other breach or Event of Default in the performance of the
same or of any other Obligations by Mortgagor hereunder. No failure on the part
of Mortgagee to complain of any act or failure to act or to declare an Event of
Default, irrespective of how long such failure continues, shall constitute a
waiver by Mortgagee of its rights hereunder or impair any rights, powers or
remedies consequent on any future Event of Default by Mortgagor.
(b) Even if Mortgagee (i) grants some forbearance or an extension of time
for the payment of any sums secured hereby, (ii) takes other or additional
security for the payment of any sums secured hereby, (iii) waives or does not
exercise some right granted herein or under the Credit Documents, (iv) releases
a part of the Mortgaged Property from this Mortgage, (v) agrees to change some
of the terms, covenants, conditions or agreements of any of the Credit
Documents,
22
(vi) consents to the filing of a map, plat or replat affecting the Premises,
(vii) consents to the granting of an easement or other right affecting the
Premises or (viii) makes or consents to an agreement subordinating Mortgagee's
lien on the Mortgaged Property hereunder, no such act or omission shall preclude
Mortgagee from exercising any other right, power or privilege herein granted or
intended to be granted in the event of any breach or Event of Default then made
or of any subsequent default; nor, except as otherwise expressly provided in an
instrument executed by Mortgagee, shall this Mortgage be altered thereby. In the
event of the sale or transfer by operation of law or otherwise of all or part of
the Mortgaged Property, Mortgagee is hereby authorized and empowered to deal
with any vendee or transferee with reference to the Mortgaged Property secured
hereby, or with reference to any of the terms, covenants, conditions or
agreements hereof, as fully and to the same extent as it might deal with the
original parties hereto and without in any way releasing or discharging any
liabilities, obligations or undertakings.
SECTION 2.16. WAIVER OF TRIAL BY JURY. THE BORROWER, THE AGENTS AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY OTHER CREDIT DOCUMENT OR
ANY LETTER OF CREDIT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 2.17. Remedies Cumulative. No right, power or remedy conferred upon
or reserved to Mortgagee by this Mortgage is intended to be exclusive of any
other right, power or remedy, and each and every such right, power and remedy
shall be cumulative and concurrent and in addition to any other right, power and
remedy given hereunder or now or hereafter existing at law or in equity or by
statute.
ARTICLE III
Miscellaneous
SECTION 3.01. Severability. Any provision of this Mortgage that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
23
SECTION 3.02. Notices. All notices and communications hereunder shall be in
writing and given to Mortgagor in accordance with the terms of the Credit
Agreement at the address set forth on the first page of this Mortgage and to the
Mortgagee as provided in the Credit Agreement.
SECTION 3.03. Successors and Assigns. All of the grants, covenants, terms,
provisions and conditions herein shall run with the Premises and the
Improvements and shall apply to, bind and inure to, the benefit of the permitted
successors and assigns of Mortgagor and the successors and assigns of Mortgagee.
SECTION 3.04. Satisfaction and Cancelation. (a) The conveyance to Mortgagee
of the Mortgaged Property as security created and consummated by this Mortgage
shall be null and void when all the Obligations have been indefeasibly paid in
full in accordance with the terms of the Credit Documents and the Lenders have
no further commitment to make Loans under the Credit Agreement, no Letters of
Credit are outstanding and the Issuing Bank has no further obligation to issue
Letters of Credit under the Credit Agreement.
(b) Upon a sale or financing by Mortgagor of all or any portion of the
Mortgaged Property that is permitted by the Credit Agreement and the application
of the net cash proceeds of such sale or financing in accordance with the terms
of the Credit Agreement, the lien of this Mortgage shall be released from the
applicable portion of the Mortgaged Property. Mortgagor shall give the Mortgagee
reasonable written notice of any sale or financing of the Mortgaged Property
prior to the closing of such sale or financing.
(c) Notwithstanding anything herein to the contrary, Mortgagor may sell the
Mortgaged Property in accordance with Section 9.14(c) of the Credit Agreement.
(d) In connection with any termination or release pursuant to paragraph
(a), (b) or (c), the Mortgage shall be marked "satisfied" by the Mortgagee, and
this Mortgage shall be canceled of record at the request and at the expense of
the Mortgagor. Mortgagee shall execute any documents reasonably requested by
Mortgagor to accomplish the foregoing or to accomplish any release contemplated
by this Section 3.04 and Mortgagor will pay all costs and expenses, including
reasonable attorneys' fees, disbursements and other charges, incurred by
Mortgagee in connection with the preparation and execution of such documents.
24
SECTION 3.05. Definitions. As used in this Mortgage, the singular shall
include the plural as the context requires and the following words and phrases
shall have the following meanings: (a) "including" shall mean "including but not
limited to"; (b) "provisions" shall mean "provisions, terms, covenants and/or
conditions"; (c) "lien" shall mean "lien, charge, encumbrance, security
interest, mortgage or deed of trust"; (d) "obligation" shall mean "obligation,
duty, covenant and/or condition"; and (e) "any of the Mortgaged Property" shall
mean "the Mortgaged Property or any part thereof or interest therein". Any act
that Mortgagee is permitted to perform hereunder may be performed at any time
and from time to time by Mortgagee or any person or entity designated by
Mortgagee. Any act that is prohibited to Mortgagor hereunder is also prohibited
to all lessees of any of the Mortgaged Property. Each appointment of Mortgagee
as attorney-in-fact for Mortgagor under the Mortgage is irrevocable, with power
of substitution and coupled with an interest. Subject to the applicable
provisions hereof, Mortgagee has the right to refuse to grant its consent,
approval or acceptance or to indicate its satisfaction, in its sole discretion,
whenever such consent, approval, acceptance or satisfaction is required
hereunder.
SECTION 3.06. Multisite Real Estate Transaction. Mortgagor acknowledges
that this Mortgage is one of a number of Other Mortgages and security documents
that secure the Obligations. Mortgagor agrees that the lien of this Mortgage
shall be absolute and unconditional and shall not in any manner be affected or
impaired by any acts or omissions whatsoever of Mortgagee, and without limiting
the generality of the foregoing, the lien hereof shall not be impaired by any
acceptance by the Mortgagee of any security for or guarantees of any of the
Obligations hereby secured, or by any failure, neglect or omission on the part
of Mortgagee to realize upon or protect any Obligation or indebtedness hereby
secured or any collateral security therefor including the Other Mortgages and
other security documents. The lien hereof shall not in any manner be impaired or
affected by any release (except as to the property released), sale, pledge,
surrender, compromise, settlement, renewal, extension, indulgence, alteration,
changing, modification or disposition of any of the Obligations secured or of
any of the collateral security therefor, including the Other Mortgages and other
security documents or of any guarantee thereof, and Mortgagee may at its
discretion foreclose, exercise any power of sale, or exercise any other remedy
available to it under any or all of
25
the Other Mortgages and other security documents without first exercising or
enforcing any of its rights and remedies hereunder. Such exercise of Mortgagee's
rights and remedies under any or all of the Other Mortgages and other security
documents shall not in any manner impair the indebtedness hereby secured or the
lien of this Mortgage and any exercise of the rights or remedies of Mortgagee
hereunder shall not impair the lien of any of the Other Mortgages and other
security documents or any of Mortgagee's rights and remedies thereunder.
Mortgagor specifically consents and agrees that Mortgagee may exercise its
rights and remedies hereunder and under the Other Mortgages and other security
documents separately or concurrently and in any order that it may deem
appropriate and waives any rights of subrogation.
SECTION 3.07. No Oral Modification. This Mortgage may not be changed or
terminated orally. Any agreement made by Mortgagor and Mortgagee after the date
of this Mortgage relating to this Mortgage shall be superior to the rights of
the holder of any intervening or subordinate Mortgage, lien or encumbrance.
ARTICLE IV
Particular Provisions
This Mortgage is subject to the following provisions relating to the
particular laws of the state wherein the Premises are located:
SECTION 4.01. Applicable Law; Certain Particular Provisions. This Mortgage
shall be governed by and construed in accordance with the internal law of the
state where the Mortgaged Property is located, except that Mortgagor expressly
acknowledges that by their terms, the Credit Agreement and other Credit
Documents shall be governed by the internal law of the State of New York.
Mortgagor and Mortgagee agree to submit to jurisdiction and the laying of venue
for any suit on this Mortgage in the state where the Mortgaged Property is
located. The terms and provisions set forth in Appendix A attached hereto are
hereby incorporated by reference as though fully set forth herein. In the event
of any conflict between the terms and provisions contained in the body of this
Mortgage and the terms and provisions set forth in Appendix A, the terms and
provisions set forth in Appendix A shall govern and control.
26
IN WITNESS WHEREOF, this Mortgage has been duly executed and delivered to
Mortgagee by Mortgagor on the date of the acknowledgment attached hereto.
[ ], a [ ],
by: /s/ XXX X. XXXXXXXXX
------------------------------------
Name: Xxx X. Xxxxxxxxx
Title: Senior Vice President and
General Counsel
27
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of July in the year 2003 before me, the undersigned,
a Notary Public in and for said State, personally appeared Xxx X. Xxxxxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is(are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
-----------------------------------------
Notary Public
My Commission expires: __________
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Exhibits and Appendixes Omitted
