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EXHIBIT 4.6
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STERLING FIBERS, INC., a Debtor-in-Possession
Mortgagor,
to
THE CIT GROUP/BUSINESS CREDIT, INC.
as Administrative Agent,
Mortgagee
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FIXED ASSETS SECURED PARTIES MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
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Dated as of July 19, 2001
This instrument affects certain real and personal property
located in Santa Xxxx County,
State of Florida.
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Record and return to:
Xxxxx Xxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: R. Xxxxxxxxx Xxxxx, Esq.
This instrument was prepared by the above-named attorney.
Notice: This instrument contains inter alia obligations which may provide for:
(a) a variable rate of interest and/or
(b) future and/or revolving credit advances or as advances, which
when made, shall have the same priority as advances or as
advances made on the date hereof whether or not (i) any
advances or as advances were made on the date hereof and (ii)
any indebtedness is outstanding at the time any advance or
re-advance is made.
Notwithstanding anything to the contrary contained herein, the maximum
principal indebtedness secured under any contingency by this instrument
shall in no event exceed $70,000,000.
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Pursuant to the procedure set forth in Florida Department of Revenue
Regulation 12B-4.053(32)(c) the documentary stamp tax due on the
indebtedness secured hereby is $50,855.00 which is based on a value of
the Florida real estate secured hereby in the amount of $14,530,000.00
and based on the hereinafter calculations.
Based on the valuations of the collateral as a ratio set forth in the
Florida Department of Revenue Regulation 12C-2.004(2) the intangible
tax due on the indebtedness secured and allocated to Florida real
estate is $1,660.15. This is based upon a total value for all Florida
real estate of $14,530,000.00 and the value of all collateral in the
amount of $1,225,309,000.00.
CALCULATIONS:
$14,530,000 X $70,000,000 = $830,076.31
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$1,225,309,000.00
$830,076.31 X .002 = $1,660.15
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The calculations used for computing documentary stamp taxes and
intangible taxes are based upon present valuations as agreed by the
parties and in no way limit the Mortgagee's right or ability to fully
recover on the indebtedness secured hereby.
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TABLE OF CONTENTS
Page
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SECTION 1.1. Payment of Secured Obligations.....................................................I-1-A-5
SECTION 1.2. Title to Collateral, etc...........................................................I-1-A-5
SECTION 1.3. Intentionally Omitted..............................................................I-1-A-6
SECTION 1.4. Recordation........................................................................I-1-A-6
SECTION 1.5. Payment of Impositions, etc........................................................I-1-A-6
SECTION 1.6. Insurance and Legal Requirements...................................................I-1-A-6
SECTION 1.7. Security Interests, etc............................................................I-1-A-7
SECTION 1.8. Permitted Contests.................................................................I-1-A-7
SECTION 1.9. Leases.............................................................................I-1-A-8
SECTION 1.10. Compliance with Instruments........................................................I-1-A-8
SECTION 1.11. Maintenance and Repair, etc........................................................I-1-A-8
SECTION 1.12. Alterations, Additions, etc........................................................I-1-A-8
SECTION 1.13. Acquired Property Subject to Lien..................................................I-1-A-9
SECTION 1.14. Assignment of Rents, Proceeds, etc.................................................I-1-A-9
SECTION 1.15. No Claims Against the Mortgagee...................................................I-1-A-10
SECTION 1.16. Indemnification...................................................................I-1-A-10
SECTION 1.17. No Credit for Payment of Taxes....................................................I-1-A-11
SECTION 1.18. Intentionally Omitted.............................................................I-1-A-11
SECTION 1.19. No Transfer of the Property.......................................................I-1-A-11
SECTION 1.20. Security Agreement................................................................I-1-A-11
SECTION 1.21. Representations and Warranties....................................................I-1-A-12
SECTION 1.22. Mortgagor's Covenants.............................................................I-1-A-12
SECTION 1.23. Attornment........................................................................I-1-A-13
SECTION 2.1. Insurance.........................................................................I-1-A-13
SECTION 2.1.1. Risks to be Insured...............................................................I-1-A-13
SECTION 2.1.2. Policy Provisions.................................................................I-1-A-14
SECTION 2.1.3. Delivery of Policies, etc.........................................................I-1-A-14
SECTION 2.1.4. Separate Insurance................................................................I-1-A-15
SECTION 2.2. Damage, Destruction or Taking; Mortgagor to Give Notice; Assignment of Awards.....I-1-A-15
SECTION 2.3. Application of Proceeds and Awards................................................I-1-A-15
SECTION 2.4. Total Taking and Total Destruction................................................I-1-A-16
SECTION 3.1. Events of Default; Acceleration...................................................I-1-A-17
SECTION 3.2. Legal Proceedings; Judicial Foreclosure...........................................I-1-A-17
SECTION 3.3. Power of Sale.....................................................................I-1-A-17
SECTION 3.4. Uniform Commercial Code Remedies..................................................I-1-A-18
SECTION 3.5. Mortgagee Authorized to Execute Deeds, etc........................................I-1-A-18
SECTION 3.6. Purchase of Collateral by Mortgagee...............................................I-1-A-18
SECTION 3.7. Receipt a Sufficient Discharge to Purchaser.......................................I-1-A-19
SECTION 3.8. Waiver of Appraisement, Valuation, etc............................................I-1-A-19
SECTION 3.9. Sale a Bar Against Mortgagor......................................................I-1-A-19
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SECTION 3.10. Secured Obligations to Become Due on Sale.........................................I-1-A-19
SECTION 3.11. Application of Proceeds of Sale and Other Moneys..................................I-1-A-19
SECTION 3.12. Appointment of Receiver...........................................................I-1-A-20
SECTION 3.13. Possession, Management and Income.................................................I-1-A-20
SECTION 3.14. Right of Mortgagee to Perform Mortgagor's Covenants, etc..........................I-1-A-21
SECTION 3.15. Subrogation.......................................................................I-1-A-21
SECTION 3.16. Remedies, etc., Cumulative........................................................I-1-A-21
SECTION 3.17. Provisions Subject to Applicable Law..............................................I-1-A-21
SECTION 3.18. No Waiver, etc....................................................................I-1-A-22
SECTION 3.19. Compromise of Actions, etc........................................................I-1-A-22
SECTION 4.1 Terms Defined in this Mortgage....................................................I-1-A-22
SECTION 4.2. Use of Defined Terms..............................................................I-1-A-24
SECTION 4.3. Credit Agreement Definitions......................................................I-1-A-24
SECTION 5.1. Further Assurances; Financing Statements..........................................I-1-A-24
SECTION 5.1.1. Further Assurances................................................................I-1-A-24
SECTION 5.1.2. Financing Statements..............................................................I-1-A-25
SECTION 5.2. Additional Security...............................................................I-1-A-25
SECTION 5.3. Defeasance; Partial Release, etc..................................................I-1-A-25
SECTION 5.3.1. Defeasance........................................................................I-1-A-25
SECTION 5.3.2. Partial Release, etc..............................................................I-1-A-25
SECTION 5.4. Notices, etc......................................................................I-1-A-25
SECTION 5.5. Waivers, Amendments, etc..........................................................I-1-A-25
SECTION 5.6. Cross-References..................................................................I-1-A-26
SECTION 5.7. Headings..........................................................................I-1-A-26
SECTION 5.8. Currency..........................................................................I-1-A-26
SECTION 5.9. Governing Law.....................................................................I-1-A-26
SECTION 5.10. Successors and Assigns, etc.......................................................I-1-A-26
SECTION 5.11. Waiver of Jury Trial; Submission to Jurisdiction..................................I-1-A-26
SECTION 5.12. Severability; Conflicts...........................................................I-1-A-27
SECTION 5.13. Loan Document.....................................................................I-1-A-27
SECTION 5.14. Usury Savings Clause..............................................................I-1-A-27
SECTION 5.15. Future Advances...................................................................I-1-A-28
SECTION 5.16. Mortgage Subject to Revolver Intercreditor Agreement..............................I-1-A-28
Schedule 1 Legal Description of the Land
Schedule 2 Permitted Encumbrances
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FIXED ASSETS SECURED PARTIES
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS FIXED ASSETS SECURED PARTIES
MORTGAGE, ASSIGNMENT OF LEASES AND
RENTS, SECURITY AGREEMENT AND FIXTURE FILING, dated as of July 19, 2001 (this
"Mortgage"), made by STERLING FIBERS, INC., a Delaware corporation (the
"Mortgagor"), having an address at 0000 Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000-0000 to THE CIT GROUP/BUSINESS CREDIT, INC., having an address at 0000 XXX
Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, as the Administrative Agent under the
Credit Agreement referred to below (together with its successors and assigns
from time to time acting as Administrative Agent for each of the Fixed Assets
Secured Parties under such Credit Agreement, the "Mortgagee").
WITNESSETH THAT:
WHEREAS, Mortgagor has elected to file a voluntary petition with the
United States Bankruptcy Court for the Southern District of Texas and has
continued in possession of its assets and in the management of its business
pursuant to Sections 1107 and 1108 of the Bankruptcy Code.
WHEREAS, the Mortgagor is on the date of delivery hereof the owner of
fee title (or easement or leasehold title if otherwise indicated on Schedule 1
hereto) to the parcel of land described in Schedule 1 hereto (the "Land") and of
the Improvements (such term and other capitalized terms used in this Mortgage
having the respective meanings specified or referred to in Article IV);
WHEREAS, pursuant to the terms, conditions and provisions of the
Revolving Credit Agreement dated as of the date hereof (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Sterling Chemicals, Inc., Sterling Canada, Inc., Sterling Pulp Chemicals
U.S., Inc., Sterling Pulp Chemicals, Inc., Mortgagor, Sterling Chemicals Energy,
Inc. and Sterling Chemicals International, Inc. (collectively, the "Borrowers"),
the financial institutions from time to time parties thereto (the "Lenders") and
The CIT Group/Business Credit, Inc., as the Administrative Agent, the Lenders
and the Issuer have agreed, subject to the conditions and limitations set forth
therein, to make Loans to, and to issue Letters of Credit for the account of,
the Borrowers in the maximum original principal amount not to exceed One Hundred
Ninety-Five Million Dollars ($195,000,000) (such Loans and Letters of Credit are
hereinafter referred to collectively as the "Credit Extensions").
WHEREAS, the Credit Extensions consist of, inter alia, Fixed Assets
Loans in a maximum principal amount not to exceed Seventy Million Dollars
($70,000,000) having a Maturity Date of the earlier to occur of (i) the
thirtieth (30th) day after the date of the entry of the Interim Order if the
Final Order has not been entered prior to such date (unless the Maturity Date
has been extended pursuant to Section 10.1(e)(i) of the Credit Agreement), (ii)
the date on which the Bankruptcy Court enters an order denying approval of the
transactions contemplated in the Credit Agreement, and (iii) the second
anniversary of the Effective Date (unless the Maturity Date has been extended
pursuant to Section 10.1(e)(i) of the Credit Agreement); and
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WHEREAS, the Mortgagor has duly authorized the execution, delivery and
performance of this Mortgage.
GRANT:
NOW, THEREFORE, for and in consideration of the premises, and of the
mutual covenants herein contained, and in order to induce the Fixed Assets
Lenders to make the Fixed Assets Loans pursuant to the Credit Agreement, and in
order to secure the full, timely and proper payment and performance of and
compliance with each and every one of the Secured Obligations (as hereinafter
defined), effective upon the entry of the Interim Order, the Mortgagor hereby
irrevocably grants, bargains, sells, mortgages, warrants, aliens, demises,
releases, hypothecates, pledges, assigns, transfers and conveys to the Mortgagee
and its successors and assigns, forever, all of the following (the
"Collateral"):
(a) Real Estate. All of Mortgagor's right, title and interest
in and to all of the Land and all additional lands and estates therein
now owned or hereafter acquired by the Mortgagor for use or development
with the Land or any portion thereof, together with all and singular
the tenements, rights, easements, hereditaments, rights of way,
privileges, liberties, appendages and appurtenances now or hereafter
belonging or in any way pertaining to the Land and such additional
lands and estates therein (including, without limitation, all rights
relating to storm and sanitary sewer, water, gas, electric, railway and
telephone services); all development rights, air rights, riparian
rights, water, water rights, water stock, all rights in, to and with
respect to any and all oil, gas, coal, minerals and other substances of
any kind or character underlying or relating to the Land and such
additional lands and estates therein and any interest therein; all
estate, claim, demand, right, title or interest of the Mortgagor in and
to any street, road, highway or alley, vacated or other, adjoining the
Land or any part thereof and such additional lands and estates therein;
all strips and gores belonging, adjacent or pertaining to the Land or
such additional lands and estates; and any after-acquired property
(herein collectively referred to as the "Real Estate");
(b) Improvements. All of Mortgagor's right, title and interest
in and to all buildings, structures and other improvements and any
additions and alterations thereto or replacements thereof, now or
hereafter built, constructed or located upon the Real Estate; and, to
the extent that any of the following items of property constitutes
fixtures under applicable laws, all furnishings, fixtures, fittings,
appliances, apparatus, equipment, machinery, building and construction
materials and other articles of every kind and nature whatsoever and
all replacements thereof, now or hereafter affixed or attached to,
placed upon or used in any way in connection with the complete and
comfortable use, enjoyment, occupation, operation, development and/or
maintenance of the Real Estate or such buildings, structures and other
improvements, including, but not limited to, partitions, furnaces,
boilers, oil burners, radiators and piping, plumbing and bathroom
fixtures, refrigeration, heating, ventilating, air conditioning and
sprinkler systems, other fire prevention and extinguishing apparatus
and materials, vacuum cleaning systems, gas and electric fixtures,
incinerators, compactors, elevators, engines, motors, generators and
all other articles of property which are considered fixtures under
applicable law (such buildings, structures and other improvements and
such other property are herein
I-1-A-2
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collectively referred to as the "Improvements"; the Real Estate and the
Improvements are herein collectively referred to as the "Property");
(c) Goods. All of Mortgagor's right, title and interest in and
to all building materials, construction materials, appliances
(including, without limitation, stoves, ranges, ovens, disposals,
refrigerators, water fountains and coolers, fans, heaters, dishwashers,
clothes washers and dryers, water heaters, hood and fan combinations,
kitchen equipment, laundry equipment, kitchen cabinets and other
similar equipment), stocks, supplies, blinds, window shades, drapes,
carpets, floor coverings, manufacturing equipment and machinery, office
equipment, growing plants and shrubbery, control devices, equipment
(including window cleaning, building cleaning, swimming pool,
recreational, monitoring, garbage, pest control and other equipment),
motor vehicles, tools, furnishings, furniture, lighting, non-structural
additions to the Real Estate and Improvements and all other tangible
property of any kind or character, together with all replacements
thereof, now or hereafter located on or in or used or useful in
connection with the complete and comfortable use, enjoyment,
occupation, operation, development and/or maintenance of the Property,
regardless of whether or not located on or in the Property or located
elsewhere for purposes of storage, fabrication or otherwise, but
excluding inventory (as defined in the U.C.C.) (herein collectively
referred to as the "Goods");
(d) Intangibles. All goodwill, trademarks, trade names, option
rights, purchase contracts, real and personal property tax refunds,
books and records and general intangibles of the Mortgagor relating to
the Property and all accounts, contract rights, instruments, chattel
paper and other rights of the Mortgagor for the payment of money for
property sold or lent, for services rendered, for money lent, or for
advances or deposits made, and any other intangible property of the
Mortgagor relating to the Property (herein collectively referred to as
the "Intangibles");
(e) Leases. All rights of the Mortgagor in, to and under all
leases, licenses, occupancy agreements, concessions and other
arrangements, oral or written, now existing or hereafter entered into,
whereby any Person agrees to pay money or any other consideration for
the use, possession or occupancy of, or any estate in, the Property or
any portion thereof or interest therein (herein collectively referred
to as the "Leases"), and the right, subject to applicable law, upon the
occurrence of any Event of Default hereunder, to receive and collect
the Rents (as hereinafter defined) paid or payable thereunder;
(f) Plans. All rights of the Mortgagor in and to all plans and
specifications, designs, drawings and other information, materials and
matters heretofore or hereafter prepared relating to the Improvements
or any construction on the Real Estate (herein collectively referred to
as the "Plans");
(g) Permits. All rights of the Mortgagor, to the extent
assignable, in, to and under all permits, franchises, licenses,
approvals and other authorizations respecting the use, occupation and
operation of the Property and every part thereof and respecting any
business or other activity conducted on or from the Property, and any
product or proceed
I-1-A-3
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thereof or therefrom, including, without limitation, all building
permits, certificates of occupancy and other licenses, permits and
approvals issued by governmental authorities having jurisdiction
(herein collectively referred to as the "Permits");
(h) Contracts. All right, title and interest of the Mortgagor,
to the extent assignable, in and to all agreements, contracts,
certificates, instruments, warranties, appraisals, engineering,
environmental, soils, insurance and other reports and studies, books,
records, correspondence, files and advertising materials, and other
documents, now or hereafter obtained or entered into, as the case may
be, pertaining to the construction, use, occupancy, possession,
operation, management, leasing, maintenance and/or ownership of the
Property and all right, title and interest of the Mortgagor therein
(herein collectively referred to as the "Contracts");
(i) Leases of Furniture, Furnishings and Equipment. All right,
title and interest of the Mortgagor as lessee in, to and under any
leases of furniture, furnishings, equipment and any other Goods now or
hereafter installed in or at any time used in connection with the
Property;
(j) Rents. All rents, issues, profits, royalties, avails,
income and other benefits derived or owned, directly or indirectly, by
the Mortgagor from the Property, including, without limitation, all
rents and other consideration deposited in to any Lockbox Account and
all rents and other consideration payable by tenants, claims against
guarantors, and any cash or other securities deposited to secure
performance by tenants, under the Leases (herein collectively referred
to as "Rents");
(k) Proceeds. All proceeds of the conversion, voluntary or
involuntary of any of the foregoing into cash or liquidated claims,
including, without limitation, proceeds of insurance and condemnation
awards (herein collectively referred to as "Proceeds"); and
(1) Other Property. All other property and rights of the
Mortgagor of every kind and character relating to the Property, and all
proceeds and products of any of the foregoing, provided however, the
Collateral shall not include any general intangibles or other rights
arising under any contracts, instruments, licenses, or other documents
as to which the grant of a lien and/or security interest would
constitute a violation of a valid and enforceable restriction in favor
of a third party on such grant, unless and until any required consents
shall have been obtained;
AND, without limiting any of the other provisions of this Mortgage, the
Mortgagor expressly grants to the Mortgagee, as secured party, a security
interest in all of those portions of the Collateral which are or may be subject
to the State Uniform Commercial Code provisions applicable to secured
transactions, subject, however, to the Permitted Encumbrances;
TO HAVE AND TO HOLD the Collateral unto the Mortgagee, its successors
and assigns, forever, subject, however, to the Permitted Encumbrances.
I-1-A-4
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FURTHER to secure the full, timely and proper payment and performance
of the Secured Obligations, the Mortgagor hereby covenants and agrees with and
warrants to the Mortgagee as follows:
ARTICLE I
COVENANTS AND AGREEMENTS OF THE MORTGAGOR
SECTION 1.1. Payment of Secured Obligations. (i) The Mortgagor agrees
that:
(a) it will duly and punctually pay and perform or cause to be
paid and performed each of the Secured Obligations at the time and in
accordance with the terms of the Loan Documents pertaining to the Fixed
Assets Loans, and
(b) when and as due and payable from time to time in
accordance with the terms hereof or of any other Loan Documents
pertaining to the Fixed Assets Loans, pay and perform, or cause to be
paid and performed, all, other Secured Obligations.
SECTION 1.2. Title to Collateral, etc. The Mortgagor represents and
warrants to and covenants with the Mortgagee that:
(a) except as otherwise permitted by the terms of the Credit
Agreement, as of the date hereof and at all times hereafter while this
Mortgage is outstanding, the Mortgagor (1) is and shall be the absolute
owner of the legal and beneficial title to the applicable interest in
the Property and to all other property included in the Collateral, and
(2) has and shall have good and marketable title in fee simple
absolute, or good and sufficient easement or leasehold title, as
currently represented in the granting clause as of the date hereof, to
the Property, subject in each case only to this Mortgage, the Permitted
Liens (as defined in the Credit Agreement) and the encumbrances set
forth in Schedule 2 hereto (collectively, the "Permitted
Encumbrances");
(b) the Mortgagor has good and lawful right, power and
authority to execute this Mortgage and to convey, transfer, assign,
mortgage and grant a security interest in the Collateral, all as
provided herein;
(c) this Mortgage has been duly executed, acknowledged and
delivered on behalf of the Mortgagor, all consents and other actions
required to be taken by the officers, directors, shareholders and
partners, as the case may be, of the Mortgagor have been duly and fully
given and performed and this Mortgage constitutes the legal, valid and
binding obligation of the Mortgagor, enforceable against the Mortgagor
in accordance with its terms;
(d) upon entry of the Interim Order, the Mortgagee shall have
a mortgage lien on the Property and perfected security interest in the
Collateral other than the Property, in each case senior in priority to
all Liens other than the then applicable Priority Liens; and
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(e) the Mortgagor, at its expense, will warrant and defend to
the Mortgagee and any purchaser under the power of sale herein or at
any foreclosure sale such title to the Collateral and the mortgage lien
and perfected security interest of this Mortgage thereon and therein
against all claims and demands and will maintain, preserve and protect
such lien and security interest and will keep this Mortgage a valid,
direct mortgage lien of record on the Property and a perfected security
interest in the Collateral other than the Property, in each case senior
in priority to all Liens other than the then applicable Priority Liens
and subject only to Permitted Encumbrances.
SECTION 1.3. Intentionally Omitted.
SECTION 1.4. Recordation. The Mortgagor, at its expense, will at all
times cause this Mortgage and any instruments amendatory hereof or supplemental
hereto and any instruments of assignment hereof or thereof (and any appropriate
financing statements or other instruments and continuations thereof), and each
other instrument delivered in connection with the Fixed Assets Loans or any
other Loan Document pertaining to the Fixed Assets Loans and intended thereunder
to be recorded, registered and filed, to be kept recorded, registered and filed,
in such manner and in such places, and will pay all such recording,
registration, filing fees, taxes and other charges, and will comply with all
such statutes and regulations as may be required by law in order to establish,
preserve, perfect and protect the lien and security interest of this Mortgage as
a valid, direct mortgage lien on the Property and perfected security interest in
the Collateral other than the Property, senior in priority to all Liens other
than the then applicable Priority Liens. The Mortgagor will pay or cause to be
paid, and will indemnify the Mortgagee in respect of, all taxes (including
interest and penalties) at any time payable in connection with the filing and
recording of this Mortgage and any and all supplements and amendments hereto.
SECTION 1.5. Payment of Impositions, etc. Subject to Section 1.8
(relating to permitted contests), the Mortgagor will pay or cause to be paid
before the same would become delinquent and before any fine, penalty, interest
or cost may be added for non-payment, all taxes, assessments, water and sewer
rates, charges, license fees, inspection fees and other governmental levies or
payments, of every kind and nature whatsoever, general and special, ordinary and
extraordinary, unforeseen as well as foreseen, which at any time may be
assessed, levied, confirmed, imposed or which may become a lien upon the
Collateral, or any portion thereof, or which are payable with respect thereto,
or upon the rents, issues, income or profits thereof, or on the occupancy,
operation, use, possession or activities thereof, whether any or all of the same
be levied directly or indirectly or as excise taxes or as income taxes, and all
taxes, assessments or charges which may be levied on the Secured Obligations, or
the interest thereon (collectively, the "Impositions"). The Mortgagor will
deliver to the Mortgagee, upon request, copies of official receipts or other
satisfactory proof evidencing such payments.
SECTION 1.6. Insurance and Legal Requirements. Subject to Section 1.8
(relating to permitted contests), the Mortgagor, at its expense, will comply in
all material respects, or cause compliance in all material respects with
(a) all provisions of any insurance policy covering or
applicable to the Collateral or any part thereof, all requirements of
the issuer of any such policy, and all orders, rules, regulations and
other requirements of the National Board of Fire
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Underwriters (or any other body exercising similar functions)
applicable to or affecting the Collateral or any part thereof or any
use or condition of the Collateral or any part thereof (collectively,
the "Insurance Requirements"); and
(b) all laws, including Environmental Laws, statutes, codes,
acts, ordinances, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, directions and
requirements of all governments, departments, commissions, boards,
courts, authorities, agencies, officials and officers, foreseen or
unforeseen, ordinary or extraordinary, which now or at any time
hereafter may be applicable to the Collateral or any part thereof, or
any of the adjoining sidewalks, curbs, vaults and vault space, if any,
streets or ways, or any use or condition of the Collateral or any part
thereof (collectively, the "Legal Requirements");
noncompliance of which could reasonably be expected to cause a Material Adverse
Effect whether or not compliance therewith shall require structural changes in
or interference with the use and enjoyment of the Collateral or any part
thereof.
SECTION 1.7. Security Interests, etc. The Mortgagor will not directly
or indirectly create or permit or suffer to be created or to remain, and will
promptly discharge or cause to be discharged, any deed of trust, mortgage,
encumbrance or charge on, pledge of, security interest in or conditional sale or
other title retention agreement with respect to or any other lien on or in the
Collateral or any part thereof or the interest of the Mortgagor or the Mortgagee
therein, or any Proceeds thereof or Rents or other sums arising therefrom, other
than (a) Permitted Encumbrances, and (b) liens of mechanics, materialmen,
suppliers or vendors or rights thereto incurred in the ordinary course of the
business of the Mortgagor for sums not yet due or any such liens or rights
thereto which are at the time being contested as permitted by Section 1.8. The
Mortgagor will not postpone the payment of any sums for which liens of
mechanics, materialmen, suppliers or vendors or rights thereto have been
incurred (unless such liens or rights thereto are at the time being contested as
permitted by Section 1.8), for more than 60 days after the completion of the
action giving rise to such liens or rights thereto.
SECTION 1.8. Permitted Contests. The Mortgagor at its expense may
contest, or cause to be contested, by appropriate legal proceedings conducted in
good faith and with due diligence, the amount or validity or application, in
whole or in part, of any Imposition, Legal Requirement or Insurance Requirement
or lien of a mechanic, materialman, supplier or vendor, provided that, (a) in
the case of an unpaid Imposition, lien, encumbrance or charge, such proceedings
shall suspend the collection thereof from the Mortgagor, the Mortgagee, and the
Collateral (including any rent or other income therefrom) and shall not
materially interfere with the payment of any such rent or income, (b) neither
the Collateral nor any rent or other income therefrom nor any part thereof or
interest therein would be in any material danger of being sold, forfeited, lost,
impaired or interfered with, (c) in the case of a Legal Requirement, neither the
Mortgagor nor the Mortgagee would be in material danger of any civil or criminal
liability for failure to comply therewith, (d) the Mortgagor shall have
furnished such security, if any, as may be required in the proceedings or as may
be reasonably requested by the Mortgagee, (e) the non-payment of the whole or
any part of any Imposition will not result in the delivery of a tax deed to the
Collateral or any part thereof because of such non-payment, (f) the payment of
any sums required to be paid with respect to any of the Fixed Asset Notes or
under this Mortgage (other than any unpaid
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Imposition, lien, encumbrance or charge at the time being contested in
accordance with this Section 1.8) shall not be interfered with or otherwise
affected, (g) in the case of any Insurance Requirement, the failure of the
Mortgagor to comply therewith shall not affect the validity of any insurance
required to be maintained by the Mortgagor under Section 2.1, and (h) that
adequate reserves, determined in accordance with GAAP, shall have been set aside
on the Mortgagor's books.
SECTION 1.9. Leases. The Mortgagor represents and warrants to the
Mortgagee that, as of the date hereof, there are no written or oral leases or
other agreements of any kind or nature relating to the occupancy of any portion
of the Property by any Person other than the Mortgagor other than the Permitted
Encumbrances. Except as is permitted by the Credit Agreement, the Mortgagor will
not enter into any such written or oral lease or other agreement with respect to
any portion of the Property without first obtaining the written consent of the
Mortgagee.
SECTION 1.10. Compliance with Instruments. The Mortgagor at its expense
will promptly comply in all material respects with all rights of way or use,
privileges, franchises, servitudes, licenses, easements, tenements,
hereditaments and appurtenances forming a part of the Property and all
instruments creating or evidencing the same, in each case, to the extent
compliance therewith is required of the Mortgagor under the terms thereof.
Except as is permitted by the Credit Agreement, the Mortgagor will not take any
action which may result in a forfeiture or termination of the rights afforded to
the Mortgagor under any such instruments and will not, without the prior written
consent of the Mortgagee, amend any of such instruments in any manner adverse to
the Fixed Assets Lenders in any material respect.
SECTION 1.11. Maintenance and Repair, etc. Subject to the provisions of
Section 1.12, the Mortgagor will keep or cause to be kept all presently and
subsequently erected or acquired Improvements and the sidewalks, curbs, vaults
and vault space, if any, located on or adjoining the same, and the streets and
the ways adjoining the same, in good and substantial order and repair and in
such a fashion that neither the value nor utility of the Collateral will be
diminished, and, at its sole cost and expense, will promptly make or cause to be
made all necessary and appropriate repairs, replacements and renewals thereof,
whether interior or exterior, structural or nonstructural, ordinary or
extraordinary, foreseen or unforeseen, so that its business carried on in
connection therewith may be properly conducted at all times. The Mortgagor at
its expense will do or cause to be done all shoring of foundations and walls of
any building or other Improvements on the Property and (to the extent permitted
by law) of the ground adjacent thereto, and every other act necessary or
appropriate for the preservation and safety of the Property by reason of or in
connection with any excavation or other building operation upon the Property and
upon any adjoining property, whether or not the Mortgagor shall, by any Legal
Requirement, be required to take such action or be liable for failure to do so.
SECTION 1.12. Alterations, Additions, etc. So long as no Event of
Default shall have occurred and be continuing, the Mortgagor shall have the
right at any time and from time to time to make or cause to be made reasonable
alterations of and additions to the Property or any part thereof, provided that
any alteration or addition: (a) shall not change the general character or the
use of the Property or reduce the fair market value thereof below its value
immediately before such alteration or addition, or impair the usefulness of the
Property; (b) is effected with due diligence, in a good and workmanlike manner
and in compliance in all material respects with all
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Legal Requirements and Insurance Requirements; (c) subject to Section 1.8 is
promptly and fully paid for, or caused to be paid for, by the Mortgagor; and (d)
is made, in case the estimated cost of such alteration or addition exceeds U.S.
$1,000,000, under the supervision of a qualified architect or engineer or
another professional.
SECTION 1.13. Acquired Property Subject to Lien. Subject to the
Permitted Encumbrances, all property at any time acquired by the Mortgagor and
provided or required by this Mortgage to be or become subject to the lien and
security interest hereof, whether such property is acquired by exchange,
purchase, construction or otherwise, shall forthwith become subject to the lien
and security interest of this Mortgage without further action on the part of the
Mortgagor or the Mortgagee. The Mortgagor, at its expense, will execute and
deliver to the Mortgagee (and will record and file as provided in Section 1.4)
an instrument supplemental to this Mortgage reasonably satisfactory in substance
and form to the Mortgagee, whenever such an instrument is necessary under
applicable law to subject to the lien and security interest of this Mortgage all
right, title and interest of the Mortgagor in and to all property provided or
required by this Mortgage to be subject to the lien and security interest
hereof.
SECTION 1.14. Assignment of Rents, Proceeds, etc. The assignment, grant
and conveyance of the Leases, Rents, Proceeds and other rents, income, proceeds
and benefits of the Collateral contained in the Granting Clause of this Mortgage
shall constitute an absolute, present and irrevocable assignment, grant and
conveyance, provided, however, that permission is hereby given to the Mortgagor,
so long as no Event of Default has occurred and be continuing hereunder, to
collect, receive and apply such Rents, Proceeds and other rents, income,
proceeds and benefits as they become due and payable, but not further in advance
thereof than is customary, and in accordance with all of the other terms,
conditions and provisions hereof, of the Loan Documents, and of the Leases,
contracts, agreements and other instruments with respect to which such payments
are made or such other benefits are conferred; provided, further, however, that,
to the extent required by the Credit Agreement all such Leases, Rents, Proceeds
and other rents, income, proceeds and benefits shall be deposited directly into
the Lockbox Accounts. Upon the occurrence and continuance of an Event of
Default, such permission shall terminate immediately and automatically, without
notice to the Mortgagor or any other Person except as required by law, and shall
not be reinstated upon a cure of such Event of Default without the express
written consent of the Mortgagee. Such assignment shall be fully effective
without any further action on the part of the Mortgagor or the Mortgagee and the
Mortgagee shall be entitled, at its option without further order of or
application to the Bankruptcy Court, upon the occurrence and continuance of an
Event of Default hereunder, to collect, receive and apply all Rents, Proceeds
and all other rents, income, proceeds and benefits from the Collateral,
including all right, title and interest of the Mortgagor in any escrowed sums or
deposits or any portion thereof or interest therein, whether or not the
Mortgagee takes possession of the Collateral or any part thereof. The Mortgagor
further grants to the Mortgagee the right, at the Mortgagee's option without
further order of or application to the Bankruptcy Court, upon the occurrence and
continuance of an Event of Default hereunder, to:
(a) enter upon and take possession of the Property for the
purpose of collecting Rents, Proceeds and said rents, income, proceeds
and other benefits;
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(b) dispossess by the customary summary proceedings any
tenant, purchaser or other Person defaulting in the payment of any
amount when and as due and payable, or in the performance of any other
obligation, under any Lease, contract or other instrument to which said
Rents, Proceeds or other rents, income, proceeds or benefits relate;
(c) let or convey the Collateral or any portion thereof or any
interest therein; and
(d) apply Rents, Proceeds and such rents, income, proceeds and
other benefits, after the payment of all necessary fees, charges and
expenses, on account of the Secured Obligations in accordance with
Section 3.11.
SECTION 1.15. No Claims Against the Mortgagee. Nothing contained in
this Mortgage shall constitute any consent or request by the Mortgagee, express
or implied, for the performance of any labor or the furnishing of any materials
or other property in respect of the Property or any part thereof, or be
construed to permit the making of any claim against the Mortgagee in respect of
labor or services or the furnishing of any materials or other property or any
claim that any lien based on the performance of such labor or the furnishing of
any such materials or other property is prior to the lien and security interest
of this Mortgage. ALL CONTRACTORS, SUBCONTRACTORS, VENDORS AND OTHER PERSONS
DEALING WITH THE PROPERTY, OR WITH ANY PERSONS INTERESTED THEREIN, ARE HEREBY
REQUIRED TO TAKE NOTICE OF THE PROVISIONS OF THIS SECTION.
SECTION 1.16. Indemnification. The Mortgagor will protect, indemnify,
save harmless and defend the Mortgagee, the Fixed Assets Lenders, and each of
their respective officers, directors, shareholders, employees, representatives
and agents (collectively, the "Indemnified Parties" and individually, an
"Indemnified Party"), from and against any and all liabilities, obligations,
claims, damages, penalties, causes of action, costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) imposed upon or
incurred by or asserted against any Indemnified Party by reason of (a) ownership
of an interest in this Mortgage, any other Loan Document or the Property, (b)
any accident, injury to or death of persons or loss of or damage to or loss of
the use of property occurring on or about the Property or any part thereof or
the adjoining sidewalks, curbs, vaults and vault spaces, if any, streets, alleys
or ways, (c) any use, non-use or condition of the Property or any part thereof
or the adjoining sidewalks, curbs, vaults and vault spaces, if any, streets,
alleys or ways, (d) any failure on the part of the Mortgagor to perform or
comply with any of the terms of this Mortgage or any Loan Document, (e)
performance of any labor or services or the furnishing of any materials or other
property in respect of the Collateral or any part thereof made or suffered to be
made by or on behalf of the Mortgagor, (f) any negligence or tortious act on the
part of the Mortgagor or any of its agents, contractors, lessees, licensees or
invitees, (g) any work in connection with any alterations, changes, new
construction or demolition of or additions to the Property, or (h) (i) any
Hazardous Material on, in, under or affecting all or any portion of the
Property, the groundwater, or any surrounding areas, (ii) any misrepresentation,
inaccuracy or breach of any warranty, covenant or agreement contained or
referred to in Sections 1.21 and 1.22, (iii) any violation or claim of violation
by the Mortgagor of any Environmental Laws, or (iv) the imposition of any lien
for damages caused by or the recovery of any costs for the cleanup, release or
threatened release of
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any Hazardous Material, except to the extent that any of the matters described
in subsections (a)-(h) arise out of the gross negligence or willful misconduct
of any Indemnified Party. If any action or proceeding be commenced, to which
action or proceeding any Indemnified Party is made a party by reason of the
execution of this Mortgage or any other Loan Document, or in which it becomes
necessary to defend or uphold the lien of this Mortgage, all sums paid by the
Indemnified Parties, for the expense of any litigation to prosecute or defend
the rights and lien created hereby or otherwise, shall be paid by the Mortgagor
to such Indemnified Parties, as the case may be, as hereinafter provided. The
Mortgagor will pay and save the Indemnified Parties harmless against any and all
liability with respect to any intangible personal property tax or similar
imposition of the State or any subdivision or authority thereof now or hereafter
in effect, to the extent that the same may be payable by the Indemnified Parties
in respect of this Mortgage, any Loan Document or any Secured Obligation. All
amounts payable to the Indemnified Parties under this Section 1.16 shall be
deemed indebtedness secured by this Mortgage and any such amounts which are not
paid within ten (10) days after written demand therefor by any Indemnified Party
shall bear interest at the rate provided for in Section 3.2.2 of the Credit
Agreement from the date of such demand. In case any action, suit or proceeding
is brought against any Indemnified Party by reason of any such occurrence, the
Mortgagor, upon request of such Indemnified Party, will, at the Mortgagor's
expense, resist and defend such action, suit or proceeding or cause the same to
be resisted or defended by counsel designated by the Mortgagor and approved by
such Indemnified Party. The obligations of the Mortgagor under this Section 1.16
shall survive any discharge or reconveyance of this Mortgage and payment in full
of the Secured Obligations.
SECTION 1.17. No Credit for Payment of Taxes. The Mortgagor shall not
be entitled to any credit against the Secured Obligations by reason of the
payment of any tax on the Property or any part thereof or by reason of the
payment of any other Imposition, and shall not apply for or claim any deduction
from the taxable value of the Property or any part thereof by reason of this
Mortgage.
SECTION 1.18. Intentionally Omitted.
SECTION 1.19. No Transfer of the Property. Except as is provided in the
Credit Agreement, and except for the Permitted Encumbrances, the Mortgagor shall
not, without the prior written consent of the Mortgagee, which consent may be
granted or withheld in the sole and absolute discretion of the Mortgagee (i)
sell, convey, assign or otherwise transfer the Property or any portion of the
Mortgagor's interest therein or (ii) further encumber the Property or permit the
Property to become encumbered by any lien, claim, security interest or other
indebtedness of any kind or nature other than the Permitted Encumbrances.
SECTION 1.20. Security Agreement. With respect to the items of personal
property and fixtures referred to and described in the Granting Clause of this
Mortgage and included as part of the Collateral, this Mortgage is hereby made
and declared to be a security agreement encumbering each and every item of
personal property and fixtures now or hereafter owned by Mortgagor and included
herein as a part of the Collateral, in compliance with the provisions of the
Uniform Commercial Code as enacted in the State. In this respect, Mortgagor, as
"Debtor", expressly grants to Mortgagee, as "Secured Party", a security interest
in and to all of the property now or hereafter owned by Mortgagor which
constitutes the personal property and fixtures
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hereinabove referred to and described in this Mortgage, including all
extensions, accessions, additions, improvements, betterments, renewals,
replacements and substitutions thereof or thereto, and all proceeds from the
sale or other disposition thereof. Mortgagor agrees that Mortgagee may file this
Mortgage, or a reproduction thereof, in the real estate records or other
appropriate index, as, and this Mortgage shall be deemed to be, a financing
statement filed as a fixture filing in accordance with the laws of the State.
Any reproduction of this Mortgage or of any other security agreement or
financing statement executed by Mortgagor shall be sufficient as a financing
statement. In addition, Mortgagor agrees to execute and deliver to Mortgagee,
upon Mortgagee's request, any other security agreement and financing statements,
as well as extensions, renewals, and amendments thereof, and reproductions of
this Mortgage, in such form as Mortgagee may reasonably require to perfect a
security interest with respect to said items. Mortgagor shall pay all costs of
filing such financing statements and any extensions, renewals, amendments and
releases thereof, and shall pay all reasonable costs and expenses of any record
searches for financing statements Mortgagee may reasonably require. Except as is
provided in the Credit Agreement, and except for the Permitted Encumbrances,
without the prior written consent of Mortgagee, Mortgagor shall not create or
suffer to be created pursuant to the Uniform Commercial Code any other security
interest in the above-described personal property and fixtures, including any
replacements and additions thereto. Upon the occurrence and continuance of an
Event of Default under this Mortgage, the Mortgagee shall have and shall be
entitled to exercise any and all of the rights and remedies (i) as prescribed in
this Mortgage, or (ii) as prescribed by general law, or (iii) as prescribed by
the specific statutory provisions now or hereafter enacted and specified in said
Uniform Commercial Code, all at Mortgagee's sole election. Mortgagor and
Mortgagee agree that the filing of any financing statements in the records
normally having to do with personal property shall not in any way affect the
agreement of Mortgagor and Mortgagee that everything located in, on or about, or
used or intended to be used with or in connection with the use, operation or
enjoyment of, the Collateral, which is described or reflected as a fixture in
this Mortgage, is, and at all times and for all purposes and in all proceedings,
both legal and equitable, shall be, regarded as part of the Real Estate conveyed
hereby. Mortgagor warrants that Mortgagor's name, identity and address are as
set forth herein. The mailing address of the Mortgagee from which information
may be obtained concerning the security interest created herein is also set
forth herein. This information hereof is provided in order that this Mortgage
shall comply with the requirements of the Uniform Commercial Code as enacted in
the State for instruments to be filed as financing statements. In accordance
with the laws of the State, this Mortgage shall remain effective as a fixture
filing until this Mortgage is released or satisfied of record or its
effectiveness otherwise terminates as to the Collateral.
SECTION 1.21. Representations and Warranties. In order to induce the
Mortgagee to enter into this Mortgage, the Credit Agreement and the other Loan
Documents, the Mortgagor agrees that all of the representations and warranties
set forth in the Credit Agreement are incorporated into this Mortgage by
reference as if fully set forth herein.
SECTION 1.22. Mortgagor's Covenants. In order to induce the Mortgagee
to enter into this Mortgage, the Credit Agreement and the other Loan Documents,
the Mortgagor agrees that all of the covenants of Mortgagor set forth in the
Credit Agreement are incorporated into this Mortgage by reference as if fully
set forth herein.
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SECTION 1.23. Attornment. Mortgagee hereby acknowledges and agrees that
the liens granted herein are subject to the rights of certain lessees under the
Leases as disclosed in the Credit Agreement and will be subject to the rights of
lessees under any Leases entered into by Mortgagor after the date hereof which
are permitted as Permitted Real Estate Liens pursuant to the Credit Agreement,
subject to the express rights contained in the applicable Lease. The rights of
the tenants under the Leases to the leased premises shall not be adversely
affected by the exercise by Mortgagee of any of its rights hereunder, nor shall
any such tenant be in any way deprived of its rights under the applicable Lease
except in accordance with the terms of such Lease. In the event that Mortgagee
succeeds to the interest of Mortgagor under a Lease, such Lease shall not be
terminated or affected thereby except as set forth therein, and any sale of the
applicable leased premises by Mortgagee or pursuant to the judgment of any court
in an action to enforce the remedies provided for in this Mortgage shall be made
subject to such Lease and the rights of such tenant expressly set forth
thereunder. If Mortgagee succeeds to the interests of Mortgagor in and to the
applicable leased premises or under such Lease or enters into possession of such
leased premises, the Mortgagee, and such tenants, shall be bound to each other
under all of the express terms, covenants and conditions of such Lease, as if
the Mortgagee was originally the Mortgagor as lessor thereunder.
ARTICLE II
INSURANCE, DAMAGE, DESTRUCTION OR TAKING, ETC.
SECTION 2.1. Insurance.
SECTION 2.1.1. Risks to be Insured. The Mortgagor will, at its expense,
maintain or cause to be maintained with insurance carriers approved by the
Mortgagee (a) insurance with respect to the Improvements against loss or damage
by fire, lightning and such other risks as are included in standard "all-risk"
policies, in amounts sufficient to prevent the Mortgagor and the Mortgagee from
becoming a co-insurer of any partial loss under the applicable policies, but in
any event in amounts not less than the then full insurable value (actual
replacement value) of the Improvements, as determined by the Mortgagor in
accordance with generally accepted insurance practice and approved by the
Mortgagee or, at the request of the Mortgagee, as determined at the Mortgagor's
expense by the insurer or insurers or by an expert approved by the Mortgagee,
(b) comprehensive public liability, including bodily injury and product
liability and property damage, insurance, with personal injury endorsements,
applicable to the Property in such amounts as are customarily carried by Persons
operating similar properties in the same general locality, but in any event with
a combined single limit of not less than Twenty Million Dollars ($20,000,000)
per occurrence, (c) explosion insurance in respect of any steam and pressure
boilers and similar apparatus located in the Property in such amounts as are
usually carried by persons operating similar properties in the same general
locality, but in any event in an amount not less than Twenty Million Dollars
($20,000,000), (d) business interruption insurance (including added expense
coverage) against all insurable perils for a period of not fewer than twelve
(12) months (subject to a reasonable aggregate deductible not exceeding ten (10)
days per any occurrence or, if an aggregate deductible not exceeding ten (10)
days per occurrence is not then available, the lowest aggregate deductible then
available), (e) worker's compensation insurance to the full extent required by
applicable law for all employees of the Mortgagor
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engaged in any work on or about the Property and employer's liability insurance
with a limit of not less than Ten Million Dollars ($10,000,000) for each
occurrence, (f) all-risk, builders' risk insurance with respect to the Property
during any period during which there is any construction work being performed,
against loss or damage by fire or other risks, including vandalism, malicious
mischief and sprinkler leakage, as are included in so-called "extended coverage"
clauses at the time available and (g) such other insurance with respect to the
Property in such amounts and against such insurable hazards as the Mortgagee
from time to time may reasonably require by written notice to the Mortgagor.
SECTION 2.1.2. Policy Provisions. All insurance maintained by the
Mortgagor pursuant to Section 2.1.1 shall (a) (except for worker's compensation
insurance) list the Mortgagor and the Mortgagee, as additional insureds as their
respective interests may appear, (b) (except for worker's compensation and
public liability insurance) provide that the proceeds for any losses shall be
adjusted by the Mortgagor subject to the approval of the Mortgagee in the event
the proceeds shall exceed $1,000,000, and shall be payable to the Mortgagee, to
be held and applied as provided in Section 2.3, (c) include effective waivers by
the insurer of all rights of subrogation against any named insured, the
indebtedness secured by this Mortgage and the Property and all claims for
insurance premiums against the Mortgagee, (d) provide that any losses shall be
payable notwithstanding (i) any act, failure to act or negligence of or
violation of warranties, declarations or conditions contained in such policy by
any named insured, (ii) the occupation or use of the Property for purposes more
hazardous than permitted by the terms thereof, (iii) any foreclosure or other
action or proceeding taken by the Mortgagee pursuant to any provision of this
Mortgage, or (iv) any change in title or ownership of the Property, (e) provide
that no cancellation, reduction in amount or material change in coverage thereof
or any portion thereof shall be effective until at least thirty (30) days after
receipt by the Mortgagee of written notice thereof, (f) provide that any notice
under such policies shall be simultaneously delivered to the Mortgagee, and (g)
be satisfactory in all other reasonable respects to the Mortgagee. Any insurance
maintained pursuant to this Section 2.1 may be evidenced by blanket insurance
policies covering the Property and other properties or assets of the Mortgagor,
provided that any such policy shall specify the portion, if less than all, of
the total coverage of such policy that is allocated to the Property and shall in
all other respects comply with the requirements of this Section 2.1.
SECTION 2.1.3. Delivery of Policies, etc. The Mortgagor will deliver to
the Mortgagee, promptly upon request, (a) certificates of all policies
evidencing all insurance required to be maintained under Section 2.1.1 (or, in
the case of blanket policies, certificates thereof by the insurers together with
a counterpart of each blanket policy), and (b) evidence as to the payment of all
premiums due thereon (with respect to public liability insurance policies, all
installments for the current year due thereon to such date), provided that the
Mortgagee shall not be deemed by reason of its custody of such certificates to
have knowledge of the contents thereof or of the applicable policies. The
Mortgagor will also deliver to the Mortgagee prior to the expiration of any
policy a binder or certificate of the insurer evidencing the replacement thereof
and when the new policy is issued a certificate of such new policy (or, in the
case of a replacement blanket policy, a certificate thereof of the insurer
together with a counterpart of the blanket policy). In the event the Mortgagor
shall fail to effect or maintain any insurance required to be effected or
maintained pursuant to the provisions of this Section 2.1, the Mortgagor will
indemnify the
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Mortgagee against damage, loss or liability resulting from all risks for which
such insurance should have been effected or maintained.
SECTION 2.1.4. Separate Insurance. The Mortgagor will not take out
separate insurance concurrent in form or contributing in the event of loss with
that required to be maintained pursuant to this Section 2.1.
SECTION 2.2. Damage, Destruction or Taking; Mortgagor to Give Notice;
Assignment of Awards. In case of:
(a) any material damage to or destruction of the Collateral or
any material part thereof, or
(b) any taking, whether for permanent or temporary use, of all
or any material part of the Collateral or any material interest therein
or material right accruing thereto, as the result of the exercise of
the right of condemnation or eminent domain, or a change of grade
affecting the Collateral or any portion thereof (a "Taking"), or the
commencement of any proceedings or negotiations which may result in a
Taking,
the Mortgagor will promptly give written notice thereof to the Mortgagee,
generally describing the nature and extent of such damage or destruction and the
Mortgagor's best estimate of the cost of restoring the Collateral, or the nature
of such proceedings or negotiations and the nature and extent of the Taking
which might result therefrom, as the case may be. The Mortgagee shall be
entitled to all insurance proceeds payable on account of such damage or
destruction and to all awards or payments allocable to the Collateral on account
of such Taking up to the amount of the Secured Obligations, and the Mortgagor
hereby irrevocably assigns, transfers and sets over to the Mortgagee all rights
of the Mortgagor to any such proceeds, awards or payments and irrevocably
authorizes and empowers the Mortgagee, at its option, in the name of the
Mortgagor or otherwise, to file and prosecute what would otherwise be the
Mortgagor's claim for any such proceeds, award or payment and to collect,
receipt for and retain the same for disposition in accordance with Section 2.3.
The Mortgagor will pay all reasonable costs and expenses incurred by the
Mortgagee in connection with any such damage, destruction or Taking and seeking
and obtaining any insurance proceeds, awards or payments in respect thereof.
SECTION 2.3. Application of Proceeds and Awards. Subject to any
applicable requirements of the Financing Order, the Credit Agreement and the
Revolver Intercreditor Agreement, all amounts recovered under any insurance
policy required to be maintained by the Mortgagor hereunder and all awards
received by it on account of any Taking shall be deposited in a Lockbox Account
maintained by the Mortgagor to be applied pursuant to the provisions of the
Credit Agreement.
Notwithstanding the foregoing provisions of this Section 2.3 to the
contrary (but subject to the provisions of Section 2.4), and if each of the
following conditions is satisfied, the Mortgagee, upon request of the Mortgagor,
may apply up toward $2,500,000 of insurance proceeds or condemnation awards
received by it to the restoration or replacement of the affected Collateral, to
the extent necessary for the restoration or replacement thereof; provided, that:
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(i) no Default or Event of Default then exists;
(ii) the Mortgagor shall have furnished to the
Mortgagee a certificate of an architect or engineer reasonably
acceptable to the Mortgagee stating (x) that the affected
Collateral is capable of being restored, prior to the maturity
of the Credit Agreement, to substantially the same condition
as existed prior to the casualty, (y) the aggregate estimated
direct and indirect costs of such restoration and (z) as to
any Taking, that the property taken in such Taking, or sold
under threat thereof, is not necessary to the Mortgagor's
customary use or occupancy of the Property or Mortgagor
otherwise provides Mortgagee adequate assurance that the
Collateral can be restored; and
(iii) in the event that the estimated cost of
restoration set forth in the certificate of such architect or
engineer (and such revisions to such estimate as are from time
to time made) exceeds maximum amount of insurance proceeds or
condemnation awards that would be permitted to be applied to
the restoration or replacement of the Collateral pursuant to
the foregoing, the Mortgagor shall deposit the amount of such
excess with the Mortgagee.
In the event that, after the restoration or replacement of the
Collateral, any insurance or condemnation awards shall remain, such amount shall
be deposited in a Lockbox Account to be applied pursuant to the provisions of
the Credit Agreement. If, prior to the receipt by the Mortgagee of such
insurance proceeds or condemnation awards, the Collateral shall have been sold
on foreclosure, the Mortgagee shall have the right to receive said insurance
proceeds or condemnation awards to the extent of any deficiency found to be due
upon such sale, with legal interest thereon, whether or not a deficiency
judgment shall have been sought or recovered or denied, and the reasonable
attorneys' fees, costs and disbursements incurred by the Mortgagee in connection
with the collection of such award or payment.
SECTION 2.4. Total Taking and Total Destruction. Subject to any
applicable requirements of the Financing Order, the Credit Agreement and the
Revolver Intercreditor Agreement, in the event of a Total Destruction or a Total
Taking, the Mortgagee shall apply all amounts recovered under any insurance
policy referred to in Section 2.1.1 and all awards received by it on account of
any such Taking shall be deposited in a Lockbox Account maintained by the
Mortgagor to be applied pursuant to the provisions of the Credit Agreement.
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ARTICLE III
EVENTS OF DEFAULT; REMEDIES, ETC.
SECTION 3.1. Events of Default; Acceleration. If an "Event of Default"
(pursuant to and as defined in the Credit Agreement) shall have occurred and be
continuing, then and in any such event the Mortgagee may, subject to any
applicable requirements of the Financing Order, the Credit Agreement and the
Revolver Intercreditor Agreement, at any time thereafter (unless all Events of
Default shall theretofore have been remedied and all costs and expenses,
including, without limitation, attorneys' fees and expenses incurred by or on
behalf of the Mortgagee, shall have been paid in full by the Mortgagor) declare,
by written notice to the Mortgagor, the Fixed Assets Loans and all other Secured
Obligations to be due and payable immediately or on a date specified in such
notice, and on such date the same shall be and become due and payable, together
with interest accrued thereon, without presentment, demand, protest or notice,
all of which the Mortgagor hereby waives. The Mortgagor will pay on demand all
costs and expenses, including, without limitation, attorneys' fees and expenses,
incurred by or on behalf of the Mortgagee in enforcing this Mortgage, or any
other Loan Document evidencing or securing the Fixed Assets Loans, or occasioned
by any default hereunder or thereunder.
SECTION 3.2. Legal Proceedings; Judicial Foreclosure. If an Event of
Default shall have occurred and be continuing, the Mortgagee at any time may, at
its election and without further order of or application to the Bankruptcy
Court, but subject to any applicable requirements of the Financing Order, the
Credit Agreement and the Revolver Intercreditor Agreement, proceed at law or in
equity or otherwise to enforce the payment and performance of the Secured
Obligations in accordance with the terms hereof and thereof and to foreclose the
lien of this Mortgage as against all or any part of the Collateral and to have
the same sold under the judgment or decree of a court of competent jurisdiction.
The Mortgagee shall be entitled to recover in such proceedings all costs
incident thereto, including attorneys' fees and expenses in such amounts as may
be fixed by the court.
SECTION 3.3. Power of Sale. If an Event of Default shall have occurred
and be continuing, the Mortgagee may, without further order of or application to
the Bankruptcy Court, but subject to any applicable requirements of the
Financing Order, the Credit Agreement and the Revolver Intercreditor Agreement,
grant, bargain, sell, assign, transfer, convey and deliver the whole or, from
time to time, any part of the Collateral, or any interest in any part thereof,
at any private sale or at public auction, with or without demand, advertisement
or notice, for cash, on credit or for other property, for immediate or future
delivery, and for such price or prices and on such terms as the Mortgagee in its
sole discretion may determine, or as may be required by law, and upon such sale
the Mortgagee may execute and deliver to the purchaser(s) instruments of
conveyance pursuant to the terms hereof and to applicable laws. Without limiting
the authority granted in this Section 3.3, the Mortgagee shall, without further
order of or application to the Bankruptcy Court and without demand on the
Mortgagor, but subject to any applicable requirements of the Financing Order,
the Credit Agreement and the Revolver Intercreditor Agreement, after the lapse
of such time as may then be required by law, and notice of default and notice of
sale having been given as then required by law, sell the Collateral on the date
and at the time and place designated in the notice of sale, either as a whole or
in separate parcels and in
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such order as the Mortgagee may determine, but subject to any statutory right of
the Mortgagor to direct the order in which such property, if consisting of
several known lots, parcels or interests, shall be sold, at public auction to
the highest bidder, the purchase price payable in lawful money of the United
States at the time of sale. The Person conducting the sale may, for any cause
deemed expedient, postpone the sale from time to time until it shall be
completed and, in every such case, notice of postponement shall be given by
public declaration thereof by such Person at the time and place last appointed
for the sale; provided that, if the sale is postponed for longer than one (1)
day beyond the day designated in the notice of sale, notice of sale and notice
of the time, date and place of sale shall be given in the same manner as the
original notice of sale. The Mortgagee shall execute and deliver to the
purchaser at any such sale a mortgagee's deed conveying the property so sold,
but without any covenant or warranty, express or implied. The recitals in such
mortgagee's deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any Person, including the Mortgagee, may bid at the sale.
SECTION 3.4. Uniform Commercial Code Remedies. If an Event of Default
shall have occurred and be continuing, the Mortgagee may, without further order
of or application to the Bankruptcy Court, but subject to any applicable
requirements of the Financing Order, the Credit Agreement and the Revolver
Intercreditor Agreement, exercise from time to time and at any time any rights
and remedies available to it under applicable law upon default in the payment of
indebtedness, including, without limitation, any right or remedy available to it
as a secured party under the Uniform Commercial Code of the State. The Mortgagor
shall, promptly upon request by the Mortgagee, assemble the Collateral, or any
portion thereof generally described in such request, and make it available to
the Mortgagee at such place or places designated by the Mortgagee and reasonably
convenient to the Mortgagee or the Mortgagor. If the Mortgagee elects to proceed
under the Uniform Commercial Code of the State to dispose of portions of the
Collateral, the Mortgagee, at its option, may give the Mortgagor notice of the
time and place of any public sale of any such property, or of the date after
which any private sale or other disposition thereof is to be made, by sending
notice by registered or certified first class mail, postage prepaid, to the
Mortgagor at least ten (10) days before the time of the sale or other
disposition. If any notice of any proposed sale, assignment or transfer by the
Mortgagee of any portion of the Collateral or any interest therein is required
by law, the Mortgagor conclusively agrees that ten (10) days notice to the
Mortgagor of the date, time and place (and, in the case of a private sale, the
terms) thereof is reasonable.
SECTION 3.5. Mortgagee Authorized to Execute Deeds, etc. The Mortgagor
irrevocably appoints the Mortgagee (which appointment is coupled with an
interest) the true and lawful attorney of the Mortgagor, in its name and stead
and on its behalf, for the purpose of effectuating any sale, assignment,
transfer or delivery for the enforcement hereof, whether pursuant to power of
sale, foreclosure or otherwise, to execute and deliver all such deeds, bills of
sale, assignments, releases and other instruments as may be designated in any
such request.
SECTION 3.6. Purchase of Collateral by Mortgagee. The Mortgagee may be
a purchaser of the Collateral or of any part thereof or of any interest therein
at any sale thereof, whether pursuant to power of sale, foreclosure or
otherwise, and the Mortgagee may apply upon the purchase price thereof the
indebtedness secured hereby owing to the Mortgagee. Such purchaser shall, upon
any such purchase, acquire good title to the properties so purchased, free of
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the security interest and lien of this Mortgage and free of all rights of
redemption in the Mortgagor.
SECTION 3.7. Receipt a Sufficient Discharge to Purchaser. Upon any sale
of the Collateral or any part thereof or any interest therein, whether pursuant
to power of sale, foreclosure or otherwise, the receipt of the Mortgagee or the
officer making the sale under judicial proceedings shall be a sufficient
discharge to the purchaser for the purchase money, and such purchaser shall not
be obliged to see to the application thereof.
SECTION 3.8 Waiver of Appraisement, Valuation, etc. The Mortgagor
hereby waives, to the fullest extent it may lawfully do so, the benefit of all
appraisement, valuation, stay, extension and redemption laws now or hereafter in
force and all rights of marshaling in the event of any sale of the Collateral or
any part thereof or any interest therein.
SECTION 3.9. Sale a Bar Against Mortgagor. Any sale of the Collateral
or any part thereof or any interest therein under or by virtue of this Mortgage,
whether pursuant to power of sale, foreclosure or otherwise, shall forever be a
bar against the Mortgagor.
SECTION 3.10. Secured Obligations to Become Due on Sale. Except as
otherwise provided in the Credit Agreement, upon any sale of the Collateral or
any portion thereof or interest therein by virtue of the exercise of any remedy
by the Mortgagee under or by virtue of this Mortgage, whether pursuant to power
of sale, foreclosure or otherwise in accordance with this Mortgage or by virtue
of any other remedy available at law or in equity or by statute or otherwise, at
the option of the Mortgagee, any sums or monies due and payable pursuant to the
Credit Agreement pertaining to the Fixed Assets Loans, the Loan Documents
pertaining to the Fixed Assets Loans and in connection with the Fixed Assets
Loans and/or the Secured Obligations shall, if not previously declared due and
payable, immediately become due and payable, together with interest accrued
thereon, and all other indebtedness which this Mortgage by its terms secures.
SECTION 3.11. Application of Proceeds of Sale and Other Moneys. Subject
to any applicable requirements of the Financing Order, the Credit Agreement and
the Revolver Intercreditor Agreement, the proceeds of any sale of the Collateral
or any part thereof or any interest therein under or by virtue of this Mortgage,
whether pursuant to power of sale, foreclosure or otherwise, and all other
moneys at any time held by the Mortgagee as part of the Collateral, shall be
applied in such order of priority as the Mortgagee shall determine in its sole
and absolute discretion including, without limitation, as follows:
(a) first, to the payment of the reasonable costs and expenses
of such sale (including, without limitation, the cost of evidence of
title and the costs and expenses, if any, of taking possession of,
retaining custody over, repairing, managing, operating, maintaining and
preserving the Collateral or any part thereof prior to such sale), all
reasonable costs and expenses incurred by the Mortgagee or any other
Person in obtaining or collecting any insurance proceeds, condemnation
awards or other amounts received by the Mortgagee, all reasonable costs
and expenses of any receiver of the Collateral or any part thereof, and
any Impositions or other charges or expenses prior to
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the security interest or lien of this Mortgage, which the Mortgagee may
consider it necessary or desirable to pay;
(b) second, to the payment of any Secured Obligation (other
than those set forth in Section 3.11 (c) below);
(c) third, to the payment of all amounts of principal of and
interest (including Post-Petition Interest to the extent such interest
is a Secured Obligation) at the time due and payable under the Credit
Agreement pertaining to the Fixed Assets Loans at the time outstanding
(whether due by reason of maturity or by reason of any prepayment
requirement or by declaration or acceleration or otherwise), including
interest at the rate provided for in the Credit Agreement on any
overdue principal and (to the extent permitted under applicable law) on
any overdue interest; and, in case such moneys shall be insufficient to
pay in full such principal and interest, then, first, to the payment of
all amounts of interest (including Post-Petition Interest to the extent
such interest is a Secured Obligation) at the time due and payable and,
second, to the payment of all amounts of principal at the time due and
payable under the Fixed Assets Loans; and
(d) fourth, the balance, if any, held by the Mortgagee after
payment in full of all amounts referred to in subdivisions Sections
3.11(a), (b) and (c) above, shall, unless a court of competent
jurisdiction may otherwise direct by final order not subject to appeal,
be paid to or upon the direction of the Mortgagor.
SECTION 3.12. Appointment of Receiver. If an Event of Default shall
have occurred and be continuing, the Mortgagee shall, as a matter of right,
without notice, and without regard to the adequacy of any security for the
indebtedness secured hereby or the solvency of the Mortgagor, be entitled to,
without further order of or application to the Bankruptcy Court, but subject to
any applicable requirements of the Financing Order, the Credit Agreement and the
Revolver Intercreditor Agreement, the appointment of a receiver for all or any
part of the Collateral, whether such receivership be incidental to a proposed
sale of the Collateral or otherwise, and the Mortgagor hereby consents to the
appointment of such a receiver and will not oppose any such appointment.
SECTION 3.13. Possession. Management and Income. If an Event of Default
shall have occurred and be continuing, in addition to, and not in limitation of,
the rights and remedies provided in Section 1.14, the Mortgagee, upon five (5)
days written notice to the Mortgagor, may, without further order of or
application to the Bankruptcy Court, but subject to any applicable requirements
of the Financing Order, the Credit Agreement and the Revolver Intercreditor
Agreement, enter upon and take possession of the Collateral or any part thereof
by force, summary proceeding, ejectment or otherwise and may remove the
Mortgagor and all other Persons and any and all property therefrom and may hold,
operate, maintain, repair, preserve and manage the same and receive all
earnings, income, Rents, issues and Proceeds accruing with respect thereto or
any part thereof. The Mortgagee shall be under no liability for or by reason of
any such taking of possession, entry, removal or holding, operation or
management, except that any amounts so received by the Mortgagee shall be
applied to pay all costs and expenses of so entering upon, taking possession of,
holding, operating, maintaining, repairing, preserving and managing the
Collateral or any part thereof, and any Impositions or other charges prior to
the
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lien and security interest of this Mortgage which the Mortgagee may consider it
necessary or desirable to pay, and any balance of such amounts shall be applied
as provided in Section 3.11.
SECTION 3.14. Right of Mortgagee to Perform Mortgagor's Covenants, etc.
If the Mortgagor shall fail to make any payment or perform any act required to
be made or performed hereunder or under the Credit Agreement pertaining to the
Fixed Assets Loans or any other Loan Document pertaining to the Fixed Assets
Loans, the Mortgagee, without further order of or application to the Bankruptcy
Court, without notice to or demand upon the Mortgagor and without waiving or
releasing any obligation or Event of Default, may (but shall be under no
obligation to) at any time thereafter make such payment or perform such act for
the account and at the expense of the Mortgagor, and may enter upon the
Collateral for such purpose and take all such action thereon as, in the
Mortgagee's opinion, may be necessary or appropriate therefor. No such entry and
no such action shall be deemed an eviction of any lessee of the Property or any
part thereof. All sums so paid by the Mortgagee and all costs and expenses
(including, without limitation, attorneys' fees and expenses) so incurred,
together with interest thereon at the rate provided for in Section 3.2.2 of the
Credit Agreement from the date of payment or incurring, shall constitute
additional indebtedness under the Credit Agreement secured by this Mortgage and
shall be paid by the Mortgagor to the Mortgagee on demand.
SECTION 3.15. Subrogation. To the extent that the Mortgagee, on or
after the date hereof, pays any sum due under any provision of any Legal
Requirement or any instrument creating any lien prior or superior to the lien of
this Mortgage, or the Mortgagor or any other Person pays any such sum with the
proceeds of the Fixed Assets Loans, the Mortgagee shall have and be entitled to
a lien on the Collateral equal in priority to the lien discharged, and the
Mortgagee shall be subrogated to, and receive and enjoy all rights and liens
possessed, held or enjoyed by, the holder of such lien, which shall remain in
existence and benefit the Mortgagee in securing the Secured Obligations.
SECTION 3.16. Remedies, etc., Cumulative. Each right, power and remedy
of the Mortgagee provided for in this Mortgage, the Credit Agreement pertaining
to the Fixed Assets Loans or any other Loan Document pertaining to the Fixed
Assets Loans, or now or hereafter existing at law or in equity or by statute or
otherwise shall be cumulative and concurrent and shall be in addition to every
other right, power or remedy provided for in this Mortgage, the Credit Agreement
or any other Loan Document pertaining to the Fixed Assets Loans, or now or
hereafter existing at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by the Mortgagee of any one or more of the
rights, powers or remedies provided for in this Mortgage, the Credit Agreement,
or any other Loan Document pertaining to the Fixed Assets Loans, or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Mortgagee of any or all such
other rights, powers or remedies.
SECTION 3.17. Provisions Subject to Applicable Law. All rights, powers
and remedies provided in this Mortgage may be exercised only to the extent that
the exercise thereof does not violate any applicable provisions of law and are
intended to be limited to the extent necessary so that they will not render this
Mortgage invalid, unenforceable or not entitled to be recorded, registered or
filed under the provisions of any applicable law. If any term of this Mortgage
or any
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application thereof shall be invalid or unenforceable, the remainder of this
Mortgage and any other application of such term shall not be affected thereby.
SECTION 3.18. No Waiver, etc. No failure by the Mortgagee to insist
upon the strict performance of any term hereof or of the Credit Agreement, or of
any other Loan Document, or to exercise any right, power or remedy consequent
upon a breach hereof or thereof, shall constitute a waiver of any such term or
of any such breach. No waiver of any breach shall affect or alter this Mortgage,
which shall continue in full force and effect with respect to any other then
existing or subsequent breach. By accepting payment or performance of any amount
or other Secured Obligations secured hereby before or after its due date, the
Mortgagee shall not be deemed to have waived its right either to require prompt
payment or performance when due of all other amounts and Secured Obligations
payable hereunder or to declare a default for failure to effect such prompt
payment.
SECTION 3.19. Compromise of Actions, etc. Any action, suit or
proceeding brought by the Mortgagee pursuant to any of the terms of this
Mortgage, the Credit Agreement pertaining to the Fixed Assets Loans, any other
Loan Document pertaining to the Fixed Assets Loans, or otherwise, and any claim
made by the Mortgagee hereunder or thereunder, may be compromised, withdrawn or
otherwise dealt with by the Mortgagee without any notice to or approval of the
Mortgagor.
ARTICLE IV
DEFINITIONS
SECTION 4.1. Terms Defined in this Mortgage. When used herein the
following terms have the following meanings:
"Borrowers" shall have the meaning set forth in the third recital.
"Collateral" shall have the meaning set forth in the granting clause.
"Contracts" shall have the meaning set forth in clause h of the
granting clause.
"Credit Agreement" shall have the meaning set forth in the third
recital.
"Credit Extensions" shall have the meaning set forth in the third
recital.
"Default" means any Event of Default or any condition or event which,
after notice or lapse of time, or both, would constitute an Event of Default.
"Goods" shall have the meaning set forth in clause c of the granting
clause.
"Herein", "hereof", "hereto", and "hereunder" and similar terms refer
to this Mortgage and not to any particular Section, paragraph or provision of
this Mortgage.
"Impositions" shall have the meaning set forth in Section 1.5.
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"Improvements" shall have the meaning set forth in clause b of the
granting clause.
"Indemnified Parties" shall have the meaning set forth in Section 1.16.
"Insurance Requirements" shall have the meaning set forth in paragraph
(a)of Section 1.6.
"Intangibles" shall have the meaning set forth in clause d of the
granting clause.
"Land" shall have the meaning set forth in the second recital.
"Leases" shall have the meaning set forth in clause (e) of the granting
clause.
"Legal Requirements" shall have the meaning set forth in paragraph (b)
of Section 1.6.
"Mortgage" shall have the meaning set forth in the preamble.
"Mortgagee" shall have the meaning set forth in the preamble.
"Mortgagor" shall have the meaning set forth in the preamble.
"Permits" shall have the meaning set forth in clause (g) of the
granting clause.
"Permitted Encumbrances" shall have the meaning set forth in Section
1.2.
"Person" means a corporation, an association, a partnership, an
organization, a business, an individual, a government or political subdivision
thereof or a governmental agency or officer.
"Plans" shall have the meaning set forth in clause (f) of the granting
clause.
"Post-Petition Interest" shall have the meaning set forth in Section
2.3.
"Proceeds" shall have the meaning set forth in clause (k) of the
granting clause.
"Property" shall have the meaning set forth in clause (b) of the
granting clause.
"Real Estate" shall have the meaning set forth in clause (a) of the
granting clause.
"Rents" shall have the meaning set forth in clause (i) of the granting
clause.
"Secured Obligations" means the Fixed Assets Obligations and all
Obligations with respect to the Fixed Assets Loans now or hereafter existing
under the Credit Agreement or any Loan Document pertaining to the Fixed Assets
Loans, and all obligations (monetary or otherwise) arising under or in
connection with the Fixed Assets Notes or the Fixed Assets Loans, whether for
principal, interest, costs, fees, expenses or otherwise and all other Fixed
Assets Obligations.
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"State" means the State of Florida.
"Total Destruction" means any damage to or destruction of the
Improvements or any part thereof which, in the reasonable estimation of the
Mortgagee shall require the expenditure of an amount in excess of Ten Million
Dollars ($10,000,000) to restore the Improvements to substantially the same
condition of the Improvements immediately prior to such damage or destruction.
"Total Taking" means a Taking, whether permanent or for temporary use,
which, in the reasonable judgment of the Mortgagee, shall substantially
interfere with and adversely affect the normal operation of the Property by the
Mortgagor to such an extent as would reasonably be anticipated to cause a
Material Adverse Effect.
SECTION 4.2. Use of Defined Terms. Terms for which meanings are
provided in this Mortgage shall, unless otherwise defined or the context
otherwise requires, have such meanings when used in any certificate and any
opinion, notice or other communication delivered from time to time in connection
with this Mortgage or pursuant hereto.
SECTION 4.3. Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, capitalized terms used in this
Mortgage, including its preamble and recitals, have the meanings provided in the
Credit Agreement.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Further Assurances; Financing Statements.
SECTION 5.1.1. Further Assurances. The Mortgagor, at its expense, will
execute, acknowledge and deliver all such instruments and take all such other
action as the Mortgagee from time to time may reasonably request:
(a) to better subject to the lien and security interest of
this Mortgage all or any portion of the Collateral,
(b) to perfect, publish notice or protect the validity of the
lien and security interest of this Mortgage,
(c) to preserve and defend the title to the Collateral and the
rights of the Mortgagee therein against the claims of all Persons as
long as this Mortgage shall remain undischarged,
(d) to better subject to the lien and security interest of
this Mortgage or to maintain or preserve the lien and security interest
of this Mortgage with respect to any replacement or substitution for
any Collateral or any other after-acquired property except as provided
in the Credit Agreement, or
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(e) in order to further effectuate the purposes of this
Mortgage and to carry out the terms hereof and to better assure and
confirm to the Mortgagee its rights, powers and remedies hereunder.
SECTION 5.1.2. Financing Statements. Notwithstanding any other
provision of this Mortgage, the Mortgagor hereby agrees that, without notice to
or the consent of the Mortgagor, the Mortgagee may file with the appropriate
public officials such financing statements, continuation statements, amendments
and similar documents as are or may become necessary to perfect, preserve or
protect the security interest granted by this Mortgage.
SECTION 5.2. Additional Security. Without notice to or consent of the
Mortgagor, and without impairment of the security interest and lien and rights
created by this Mortgage, the Mortgagee and the Lenders may, without further
order of or application to the Bankruptcy Court, accept from the Mortgagor or
any other Person additional security for the Secured Obligations. Neither the
giving of this Mortgage nor the acceptance of any such additional security shall
prevent the Mortgagee from resorting, first, to such additional security, or,
first, to the security created by this Mortgage, or concurrently to both, in any
case without affecting the Mortgagee's lien and rights under this Mortgage.
SECTION 5.3. Defeasance; Partial Release, etc.
SECTION 5.3.1. Defeasance. If the Fixed Assets Loans and all other
amounts owing pursuant to the Credit Agreement pertaining to the Fixed Assets
Loans and the other Loan Documents pertaining to the Fixed Assets Loans shall be
repaid in full in accordance with the terms thereof, and if the Mortgagor shall
pay, in full, the principal of and premium, if any, and interest on the Secured
Obligations in accordance with the terms thereof and hereof and all other sums
payable hereunder by the Mortgagor and shall comply with all the terms,
conditions and requirements hereof and of the Secured Obligations, or otherwise
as may be provided in the Credit Agreement, then on such date, the Mortgagee
shall, upon the request of the Mortgagor and at the Mortgagor's sole cost and
expense, execute and deliver such instruments, in form and substance reasonably
satisfactory to the Mortgagee, as may be necessary to effectively reconvey,
release and discharge this Mortgage.
SECTION 5.3.2. Partial Release, etc. The Mortgagee may, at any time and
from time to time, without liability therefor, and without prior notice to the
Mortgagor, release or reconvey any part of the Collateral, consent to the making
of any map or plat of the Property, join in granting any easement thereon or
join in any extension agreement or agreement subordinating the lien of this
Mortgage.
SECTION 5.4. Notices, etc. All notices and other communications
provided to any of the parties hereto shall be in writing and addressed,
delivered or transmitted to such party as set forth in the Credit Agreement.
SECTION 5.5. Waivers, Amendments, etc. The provisions of this Mortgage
may be amended, discharged or terminated and the observance or performance of
any provision of this
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Mortgage may be waived, either generally or in a particular instance and either
retroactively or prospectively, only by an instrument in writing executed by the
Mortgagor and the Mortgagee.
SECTION 5.6. Cross-References. References in this Mortgage and in each
instrument executed pursuant hereto to any Section or Article are, unless
otherwise specified, to such Section or Article of this Mortgage or such
instrument, as the case may be, and references in any Section, Article or
definition to any clause are, unless otherwise specified, to such clause of such
Section, Article or definition.
SECTION 5.7. Headings. The various headings of this Mortgage and of
each instrument executed pursuant hereto are inserted for convenience only and
shall not affect the meaning or interpretation of this Mortgage or such
instrument or any provisions hereof or thereof.
SECTION 5.8. Currency. Unless otherwise expressly stated, all
references to any currency or money, or any dollar amount, or amounts
denominated in "Dollars" herein will be deemed to refer to the lawful currency
of the United States.
SECTION 5.9. Governing Law. THIS MORTGAGE SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE.
SECTION 5.10. Successors and Assigns, etc. This Mortgage shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
SECTION 5.11. Waiver of Jury Trial; Submission to Jurisdiction.
(a) EACH OF THE MORTGAGOR AND THE MORTGAGEE HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS MORTGAGE, THE CREDIT AGREEMENT, ANY
LOAN DOCUMENT PERTAINING TO THE FIXED ASSETS LOANS OR ANY OTHER RELATED
INSTRUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN), OR ACTIONS OF THE MORTGAGOR OR THE
MORTGAGEE. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE MORTGAGEE
AND THE FIXED ASSETS LENDERS TO ENTER INTO THE TRANSACTIONS PROVIDED
FOR IN THE CREDIT AGREEMENT AND TO MAKE THE FIXED ASSETS LOANS.
(b) FOR THE PURPOSE OF ANY ACTION OR PROCEEDING INVOLVING THIS
MORTGAGE, THE CREDIT AGREEMENT AS PERTAINS TO THE FIXED ASSETS LOANS OR
ANY OTHER LOAN DOCUMENT AS PERTAINS TO THE FIXED ASSETS LOANS, THE
MORTGAGOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ALL FEDERAL AND STATE COURTS LOCATED IN THE STATE AND
CONSENTS THAT IT MAY BE SERVED WITH ANY PROCESS OR PAPER BY REGISTERED
MAIL OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE IN
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ACCORDANCE WITH APPLICABLE LAW, PROVIDED A REASONABLE TIME FOR
APPEARANCE IS ALLOWED. THE MORTGAGOR AND MORTGAGEE EACH EXPRESSLY
WAIVES, TO THE EXTENT IT MAY LAWFULLY DO SO, ANY OBJECTION, CLAIM OR
DEFENSE WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY
ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS MORTGAGE, THE CREDIT
AGREEMENT OR ANY OTHER LOAN DOCUMENT PERTAINING TO THE FIXED LOANS IN
ANY SUCH COURT, IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM AND FURTHER IRREVOCABLY WAIVES THE RIGHT TO OBJECT,
WITH RESPECT TO ANY SUCH CLAIM, SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT, THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER THE
PERSON OF THE MORTGAGOR. NOTHING CONTAINED HEREIN WILL BE DEEMED TO
PRECLUDE THE MORTGAGEE FROM BRINGING AN ACTION AGAINST THE MORTGAGOR IN
ANY OTHER JURISDICTION.
SECTION 5.12. Severability; Conflicts. Any provision of this Mortgage,
the Credit Agreement or any other Loan Document pertaining to the Fixed Assets
Loans which is prohibited or unenforceable in any jurisdiction shall as to such
provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Mortgage, the Credit Agreement or such Loan Document pertaining to the
Fixed Assets Loans or affecting the validity or enforceability of such provision
in any other jurisdiction. In the event of any conflict between the terms of
this Mortgage and the terms of the Credit Agreement, the terms of the Credit
Agreement shall control.
SECTION 5.13. Loan Document. This Mortgage is a Loan Document executed
pursuant to the Credit Agreement and, unless otherwise expressly indicated
herein, shall be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 5.14. Usury Savings Clause. It is the intention of the
Mortgagor and the Mortgagee to conform strictly to the usury laws governing the
Loan Documents pertaining to the Fixed Assets Loans, and any interest payable
under the Loan Documents pertaining to the Fixed Assets Loans shall be subject
to reduction to the amount not in excess of the maximum non-usurious amount
allowed under such laws, as construed by the courts having jurisdiction over
such matters. In the event the maturity of the Secured Obligations is
accelerated by reason of any provision of the Loan Documents pertaining to the
Fixed Assets Loans, or by reason of an election by the Mortgagee resulting from
an Event of Default, then earned interest may never include more than the
maximum amount permitted by law, computed from the dates of each advance of loan
proceeds under the Credit Agreement until payment, and any interest in excess of
the maximum amount permitted by law shall be canceled automatically or, if
theretofore paid, at the option of the Mortgagee, shall be rebated to the
Mortgagor, or shall be credited on the principal amount of the Secured
Obligations or, if all principal has been repaid, then the excess shall be
rebated to the Mortgagor. If any interest is canceled, credited against
principal or rebated to the Mortgagor in accordance with the foregoing sentence
and, if thereafter the interest payable hereunder is less than the maximum
amount permitted by applicable law, the rate
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32
hereunder shall automatically be increased to the maximum extent possible to
permit repayment to the Mortgagee and the Lenders as soon as possible of any
interest in excess of the maximum amount permitted by law which was earlier
canceled, credited against principal or rebated to the Mortgagor pursuant to the
provisions of the foregoing sentence.
SECTION 5.15. Future Advances. This Mortgage is a "Future Advance
Mortgage" under the laws of the State. Any and all future advances under this
Mortgage and the Loan Documents pertaining to the Fixed Assets Loans shall have
the same priority as if the future advance was made on the date that this
Mortgage was recorded. This Mortgage shall secure the Secured Obligations,
whenever incurred, such Secured Obligations to be due at the times provided in
the Loan Documents pertaining to the Fixed Assets Loans. Notice is hereby given
that the Secured Obligations may increase as a result of any defaults hereunder
by Mortgagor due to, for example, and without limitation, unpaid interest or
late charges, unpaid taxes or insurance premiums which the Mortgagee elects to
advance, defaults under leases that the Mortgagee elects to cure, attorney fees
or costs incurred in enforcing the Loan Documents pertaining to the Fixed Assets
Loans or other expenses incurred by the Mortgagee in protecting the Collateral,
the security of this Mortgage or the Mortgagee's rights and interests.
SECTION 5.16. Mortgage Subject to Revolver Intercreditor Agreement.
Notwithstanding anything to the contrary contained herein, it is expressly
understood and agreed by the parties hereto that this Mortgage shall be subject
to the terms of the Revolver Intercreditor Agreement.
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IN WITNESS WHEREOF, the undersigned, by its duly elected officers and
pursuant to proper authority of its board of directors has duly executed,
sealed, acknowledged and delivered this Fixed Assets Secured Parties
Mortgage,
Assignment of Leases and Rents, Security Agreement and Fixture Filing as of the
day and year first above written.
STERLING FIBERS, INC., a Delaware
corporation
By:
--------------------------------------
Name:
---------------------------------
Title: President
DRAFTED BY:
Xxxxx Xxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: R. Xxxxxxxxx Xxxxx, Esq.
34
[CORPORATION NOTARY PAGE]
STATE OF )
------------ )
COUNTY OF )
----------
BEFORE ME, the undersigned, a notary public in and for the
State of ____________, on this day personally appeared
___________________________ as _______________________ of STERLING FIBERS, INC.,
a Delaware corporation, and, being known to me to be the person whose name is
subscribed to the foregoing instrument, acknowledged to me that he executed the
same for the purpose and consideration therein expressed and on behalf of said
corporation.
Given under my hand and seal of office this ___ day of July,
2001.
-----------------------------------------
Notary Public, State of
-----------------
Date commission expires:
