Exhibit 10-40
SATISFACTION: The indebtedness
secured by this Leasehold Mortgage
has been satisfied in full.
By:
Name:
Title:
Date:
This instrument was prepared
by and when recorded please
return to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
Suite 4200
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
LEASEHOLD MORTGAGE
[NEW YORK]
This Leasehold Mortgage is made and entered into as of this 14th
day of January, 1997, by and among ACC NATIONAL TELECOM CORP.,
Delaware corporation ("Mortgagor"), and FIRST UNION NATIONAL BANK OF
NORTH CAROLINA ("Mortgagee"), as Administrative Agent for the
financial institutions (the "Lenders") as are, or may from time to
time become, parties to the Credit Agreement (as defined below).
WHEREAS, Mortgagor and certain Affiliates thereof are indebted to
the Lenders in the principal sum of up to One Hundred Million Dollars
($100,000,000), as evidenced by the Notes of even date executed by the
Mortgagor and such Affiliates in favor of the Lenders, and such other
documents as may have been executed or given by Mortgagor in
connection with the transactions contemplated by the Credit Agreement
of even date between the Mortgagor and such Affiliates as Borrowers
thereunder (collectively, the "Borrowers"), the Lenders and the
Mortgagee, as Administrative Agent for the Lenders (as amended or
supplemented, the "Credit Agreement", and collectively with the Notes
and such other documents, the "Loan Documents"), the terms and
conditions of which are incorporated herein by reference;
NOW, THEREFORE, as security for the payment and performance of up
to $500,000 of the Obligations (as defined in the Credit Agreement),
the Mortgagor has created a security interest in, bargained, sold,
given, granted, assigned and conveyed and does by these presents
create a security interest in, bargain, sell, give, grant, assign and
convey unto the Mortgagee, its or his successors and assigns, all of
Mortgagor's right, title and interest in and to that certain leasehold
estate under a lease agreement (as amended or supplemented, the
"Lease"), dated July 1, 1994, between the Mortgagor as successor to
ACC Albany Telecom Corp. and Twin Towers Associates Limited
Partnership of Albany of the Premises commonly known as Xxx Xxxxxxxx
Xxxxx, Xxxxxx, Xxx Xxxx (the "Leasehold Estate"), which is more
particularly described on Exhibit A attached hereto and incorporated
herein by reference.
TO HAVE AND TO HOLD the Leasehold Estate described herein unto
the Mortgagee, its heirs and successors in interest forever.
THIS CONVEYANCE IS MADE UPON THIS SPECIAL TRUST, that if the
Mortgagor shall satisfy all Obligations secured hereby, and shall
comply with all of the covenants, terms and conditions of this
Leasehold Mortgage and the Loan Documents, then this conveyance shall
be null and void and shall be canceled of record at the request and
cost of Mortgagor. But if at any time there shall be any default in
satisfaction of any Obligations or under this instrument or under the
terms and conditions of any instrument secured hereby, which default
shall not have been cured within any applicable grace period (if any)
provided therefor, then, at the option of Mortgagee, with the consent
of the Required Lenders, the entire indebtedness hereby secured shall
immediately become due, payable and collectible without further
notice, regardless of maturity, and this Mortgage may be foreclosed by
judicial proceedings, or the Mortgagee is hereby authorized and
empowered to expose to sale and to sell the Leasehold Estate described
herein at public sale for cash, in compliance with the requirements of
Article 14 of the New York Real Property Actions and Proceedings Laws,
or any subsequently enacted statute relating to nonjudicial
foreclosure sales in effect on the date foreclosure is commenced, and
at the time and place fixed for the sale to sell the Leasehold Estate
described herein to the highest bidder for cash, and Mortgagee shall
execute a conveyance of said Leasehold Estate to and deliver
possession of same to the purchaser. Mortgagee may bid and become the
purchaser at any under this Leasehold Mortgage. The proceeds of the
sale shall, after the Mortgagee retains a reasonable compensation,
together with reasonable attorneys, fees incurred by Mortgagee in such
proceeding, be applied first to the payment of the costs and expenses
of such sale; second, to the payment to the whole amount of
Obligations then owing by the Mortgagor to the Lenders and secured
hereby; and third to the payment of the surplus, if any, to the
Mortgagor or to whomever else may be lawfully entitled thereto.
This Leasehold Mortgage is made as additional collateral to
secure the payment and performance of the Obligations. Other terms
capitalized but not otherwise defined herein shall have the meanings
ascribed thereto in the Credit Agreement.
MORTGAGOR ACKNOWLEDGES, COVENANTS AND AGREES WITH MORTGAGEE AS
FOLLOWS:
1. Mortgagor represents and warrants that there have been no
prior encumbrances, conveyances or assignments of its interest in the
Lease which are still in effect, and that the Lease is a valid and
enforceable agreement, that neither Mortgagor nor, to its knowledge,
any other party, is in material default thereunder and that all
covenants, conditions and agreements have been performed as required
therein, except those not due to be performed until after the date
hereof.
2. No change in the terms of the Lease shall be valid without
the written approval of Mortgagee, with the consent of the Required
Lenders, and Mortgagor shall not assign, sell, pledge, mortgage or
otherwise transfer or encumber its interest in the Lease so long as
this Leasehold Mortgage is in effect except as permitted by the Credit
Agreement.
3. Mortgagor shall give prompt notice to Mortgagee of any
notice of default received by it under the Lease, together with a
complete copy of any such notice of default.
4. Mortgagor shall perform each and all of the covenants and
obligations of the tenant under the Lease for so long as this
Leasehold Mortgage is in effect, including, without limitation, the
obligations to maintain, rebuild and insure the improvements which
constitute a portion of the premises thereunder.
5. Should Mortgagor fail to make any payment or to do act as
herein provided, then Mortgagee may, but without obligation to do so
and without notice to or demand on Mortgagor and without releasing
Mortgagor from any Obligation, make or do the same, including, without
limitation, appearing in and defending any action purporting to affect
the security hereof or the rights or powers of Mortgagee hereunder and
performing any obligation of Mortgagor under the Lease, and in
exercising any such powers, paying all necessary costs and expenses,
including, without limitation, attorneys' fees. Mortgagor will pay
immediately upon demand all sums expended by Mortgagee under the
authority hereof, and the same shall be added to the Obligations and
shall be secured hereby and by the Loan Documents.
6. Upon the occurrence and continuation of an Event of Default,
Mortgagee may, with the consent of the Required Lenders, at its
option, without notice and without regard to the adequacy of security
for the Obligations, either in person or by agent and with or without
bringing any action or proceeding, or by a receiver to be appointed by
a court, enter upon, take possession of, and operate the premises
which are the subject of the Lease, make, enforce, modify and accept
any provision of, or surrender, the Lease, and do any other act or
acts which Mortgagee deems proper to protect the security hereof until
all Obligations have been paid or performed in full. The entering
upon and taking possession of such premises shall not cure or waive
any default or waive, modify or affect any notice of default under the
Credit Agreement or any other security instrument, nor invalidate any
act done pursuant to any such notice.
7. Mortgagor hereby irrevocably constitutes and appoints
Mortgagee as its attorney-in-fact to demand, receive, and enforce
Mortgagor's rights with respect to the Lease for and on behalf of and
in the name of Mortgagor or, with the same force and effect as
Mortgagor could do if this Leasehold Mortgage had not been made.
Mortgagee may, without affecting any of its rights or remedies against
Mortgagor under any other instrument, document or agreement, exercise
its rights under this Leasehold Mortgage as Mortgagor's attorney-in-
fact in any other manner permitted by law, and in addition Mortgagee
shall have and possess, without limitation, any and all rights and
remedies of a secured party under the Uniform Commercial Code or
otherwise as provided by
law.
8. At Mortgagor's sole cost and expense, Mortgagor will appear
in and defend any action growing out of or in any manner connected
with the Lease or the obligations or liabilities of Mortgagor
thereunder. In addition, Mortgagor shall indemnify and hold Mortgagee
harmless from and against any and all claims, demands, liabilities,
losses, lawsuits, judgments, and costs and expenses, including,
without limitation, reasonable attorneys' fees to which Mortgagee may
become exposed or which Mortgagee may incur in exercising any of its
rights under this Leasehold Mortgage.
9. This Leasehold Mortgage is for security purposes only.
Accordingly, Mortgagee shall not have the right under this Leasehold
Mortgage to enforce the provisions of said Lease or exercise rights
hereunder unless and until there shall have occurred an Event of
Default.
10. Subject to the limitation on further assignment by Mortgagor
set forth above, this Leasehold Mortgage shall be binding upon and
inure to the benefit of the legal representatives, assigns and
successors in interest of Mortgagor and Mortgagee, including any
subsequent holders of Notes.
11. All notices hereunder shall be sent to the addresses and
pursuant to the procedures set forth in Section 13.1 of the Credit
Agreement.
12. Mortgagor warrants and represents that it is the Lessee of
the Leasehold Estate under the Lease; such Leasehold Estate is free
and clear of all liens, charges and encumbrances whatsoever, except
those which have been approved by Mortgagee; and Mortgagor has full
right and power to make this conveyance.
13. In addition to the rights and remedies set forth herein,
Mortgagee shall have all rights and remedies set forth in the Loan
Documents.
IN WITNESS WHEREOF, Mortgagor has executed and sealed this
Leasehold Mortgage this 14th day of January, 1997.
ACC NATIONAL TELECOM CORP.
[CORPORATE SEAL] By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
ATTEST:/s/ Xxxxxx X. Xxxxxx Title: Vice President
Name: Xxxxxx X. Xxxxxx
Title:Assistant Secretary
STATE OF NORTH CAROLINA)
)
COUNTY OF MECKLENBURG )
I, Xxxxx X. Xxxxx, a Notary Public of the county and state
aforesaid, certify that Xxxxxx X. Xxxxxx personally came before me
this day and acknowledged that he is Assistant Secretary of ACC
NATIONAL TELECOM CORP., a Delaware corporation, and that by authority
duly given and as the act of the corporation, the foregoing instrument
was signed in its name by its Vice President, sealed with its
corporate seal and attested by himself as its Assistant Secretary.
WITNESS my hand and official stamp, this 14th day of January,
1997.
/s/ Xxxxx X. Xxxxx
Notary Public
My commission expires:
August 5, 1997
Exhibit A
to
Leasehold Mortgage
between
ACC National Telecom Corp.
and
First Union National Bank of North Carolina,
as Administrative Agent
Description of Leased Premises
Xxx Xxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxx
