MORTGAGE, LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FINANCING STATEMENT
By
[ ]
Mortgagor,
To
CREDIT SUISSE FIRST BOSTON
Mortgagee,
Relating to Premises in:
[ ]
DATED AS OF: March 6, 1998
This instrument prepared by and, after
recording, please return to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxx
1
MORTGAGE, LEASEHOLD MORTGAGE, ASSIGNMENT
OF LEASES AND RENTS, SECURITY AGREEMENT
AND FINANCING STATEMENT
THIS MORTGAGE, LEASEHOLD MORTGAGE, ASSIGNMENT OF
LEASES AND RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT
dated as of March 6, 1998 (this "Mortgage"), by [ ], an [ ]
corporation, having an office at [ ] (the "Mortgagor"), to
CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of
Switzerland, acting through its New York branch ("CSFB"),
having an office at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as Collateral Agent (in such capacity, the "Collateral
Agent") for the benefit of the Secured Parties (as defined
below) (the "Mortgagee").
WITNESSETH THAT:
A. Reference is made to (a) the Credit Agreement dated as of March 6,
1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among [Terex Corporation, a Delaware corporation] [the
Mortgagor], Terex Equipment Limited, a company organized under the laws of
Scotland, P.P.M. S.A., a company organized under the laws of the Republic of
France, Unit Rig (Australia) Pty. Ltd., a company organized under the laws of
New South Wales, and P.P.M. Sp.A., a company organized under the laws of the
Republic of Italy, the Lenders (as defined in Article I thereto), the Issuing
Banks (as defined in Article I thereto) and CSFB, as administrative agent and as
collateral agent for the Lenders,(b) the Guarantee Agreement dated as of March
6, 1998 (as amended, supplemented or otherwise modified from time to time, the
"Subsidiary Guarantee Agreement") among the subsidiaries of Terex listed on
Schedule I thereto and the Collateral Agent and (c) the Guarantee Agreement
dated as of March 6, 1998 (as amended, supplemented or otherwise modified from
time to time, the "Terex Guarantee Agreement") between Terex and the Collateral
Agent. Each capitalized term used herein but not defined herein shall have the
meaning assigned to such term in the Credit Agreement. As used herein, the term
"Secured Parties" shall mean (i) the Lenders, (ii) the Administrative Agent,
(iii) the Collateral Agent, (iv) the Issuing Banks, (v) each counterparty to a
Hedging Agreement entered into with any Borrower if such counterparty was a
Lender at the time the Hedging Agreement was entered into, (vi) the
beneficiaries of each indemnification obligation undertaken by any Loan Party
under any Loan Document and (vii) the successors and assigns of each of the
foregoing. Pursuant to the Credit Agreement, (i) the Lenders have lent or have
2
agreed to lend to the Borrowers (a) on a term basis, Term Loans in an aggregate
principal amount not in excess of $375,000,000, and (b) on a revolving basis,
Revolving Loans, at any time and from time to time prior to the Revolving Credit
Maturity Date, in an aggregate principal amount at any time outstanding not in
excess of $125,000,000 and (ii) the Issuing Banks have issued and have agreed to
issue Letters of Credit in an aggregate face amount at any time outstanding not
in excess of $35,000,000 in each case on the terms and subject to the conditions
of the Credit Agreement.
B. In order to induce the Lenders to make Loans and the Issuing Banks
to issue Letters of Credit, the Subsidiary Guarantors have agreed to guarantee,
pursuant to the Subsidiary Guarantee Agreement, among other things, all the
obligations of the Borrowers under the Credit Agreement. Terex has agreed to
guarantee, pursuant to the Terex Guarantee Agreement, among other things, all
the obligations of the Subsidiary Borrowers under the Credit Agreement.
C. The obligations of the Lenders to make Loans and of the Issuing
Banks to issue Letters of Credit under the Credit Agreement are conditioned
upon, among other things, the execution and delivery by the Mortgagor of this
Mortgage in the form hereof, to secure (a) the due and punctual payment by the
Borrowers of (i) the principal of and premium, if any, and interest (including
interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) each payment required to be made by any Borrower under the
Credit Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement of disbursements, interest thereon and
obligations to provide cash collateral and (iii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
the Borrowers to the Secured Parties under the Credit Agreement and the other
Loan Documents, (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Borrowers under or pursuant to
the Credit Agreement and the other Loan Documents, (c) the due and punctual
3
payment and performance of all the covenants, agreements, obligations and
liabilities of each other Loan Party under or pursuant to this Mortgage and the
other Loan Documents and (d) the due and punctual payment and performance of all
obligations of the Borrowers under each Hedging Agreement entered into with any
counterparty that was a Lender at the time such Hedging Agreement was entered
into (all the monetary and other obligations referred to in this paragraph C
being referred to collectively as the "Obligations")[; provided, however, that
this Mortgage shall secure no more than $[ ] of the total amount of the
Obligations]1.
D. Pursuant to the requirements of the Credit Agreement, the Mortgagor
is entering into this Mortgage to create a security interest in the Mortgaged
Property (as defined herein) to secure the performance and payment of the
Obligations. The Credit Agreement also requires the granting by the Mortgagor
and certain other Loan Parties of other mortgages and deeds of trust (the "Other
Mortgages") that create security interests in certain Mortgaged Properties other
than the Mortgaged Property to secure the performance of the Obligations.
Granting Clauses
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and in order to
secure (A) the due and punctual payment and performance of the Obligations[;
provided, however, that this Mortgage shall secure no more than $[ ] of the
total amount of the Obligations,]2 (B) the due and punctual payment by the
Mortgagor of all taxes and insurance premiums relating to the Mortgaged Property
and (C) all disbursements made by Mortgagee for the payment of taxes, common
area charges or insurance premiums, all fees, expenses or advances in connection
with or relating to the Mortgaged Property, and interest on such disbursements
and other amounts not timely paid in accordance with the terms of the Credit
Agreement, this Mortgage and the other Loan Documents, Mortgagor hereby grants,
conveys, mortgages, assigns and pledges to the Mortgagee (for the ratable
benefit of the Secured Parties), a security interest in, all the following
described property (the "Mortgaged Property") whether now owned or held or
---------------------
1 To be included in mortgage tax states only
2 To be included in mortgage tax states only
4
hereafter acquired:
(1) all Mortgagor's right, title and interest in all the land
more particularly described on Exhibit A hereto (the "Owned Land");
(2) all Mortgagor's right, title and interest in and to each
leasehold estate created pursuant to the lease or leases more
particularly described in Exhibit B hereto (such lease or leases, as
amended, supplemented, or otherwise modified from time to time,
individually, a "Subject Lease" and, collectively, the "Subject
Leases") and affecting the land more particularly described in Exhibit
B hereto (the "Leased Land", together with the Owned Land, the "Land"),
including, without limitation, all rights of the lessee under each
Subject Lease;
(3) all Mortgagor's right, title and interest in all rights
appurtenant to the Land, including the easements over certain other
adjoining land granted by any easement agreements, covenant or
restrictive agreements and all air rights, mineral rights, water
rights, oil and gas rights and development rights, if any, relating
thereto, and also together with all of the other easements, rights,
privileges, interests, hereditaments and appurtenances thereunto
belonging or in anyway appertaining and all of the estate, right,
title, interest, claim or demand whatsoever of Mortgagor therein and in
the streets and ways adjacent thereto, either in law or in equity, in
possession or expectancy, now or hereafter acquired (the Land and the
property described in this subparagraph (3), the "Premises");
(4) all Mortgagor's right, title and interest in all
buildings, improvements, structures, paving, parking areas, walkways
and landscaping now or hereafter erected or located upon the Land, and
all fixtures of every kind and type affixed to the Premises or attached
to or forming part of any structures, buildings or improvements and
replacements thereof now or hereafter erected or located upon the Land
(the "Improvements");
(5) all Mortgagor's right, title and interest in all
apparatus, movable appliances, building materials, equipment, fittings,
furnishings, furniture, machinery and other articles of tangible
5
property of every kind and nature, and replacements thereof, now or at
any time hereafter placed upon or used in any way in connection with
the use, enjoyment, occupancy or operation of the Improvements or the
Premises, including all of Mortgagor's books and records relating
thereto and including all pumps, tanks, goods, machinery, tools,
equipment, lifts (including fire sprinklers and alarm systems, fire
prevention or control systems, cleaning rigs, air conditioning,
heating, boilers, refrigerating, electronic monitoring, water, loading,
unloading, lighting, power, sanitation, waste removal, entertainment,
communications, computers, recreational, window or structural,
maintenance, truck or car repair and all other equipment of every
kind), restaurant, bar and all other indoor or outdoor furniture
(including tables, chairs, booths, serving stands, planters, desks,
sofas, racks, shelves, lockers and cabinets), bar equipment, glasses,
cutlery, uniforms, linens, memorabilia and other decorative items,
furnishings, appliances, supplies, inventory, rugs, carpets and other
floor coverings, draperies, drapery rods and brackets, awnings,
venetian blinds, partitions, chandeliers and other lighting fixtures,
freezers, refrigerators, walk-in coolers, signs (indoor and outdoor),
computer sys tems, cash registers and inventory control systems, and
all other apparatus, equipment, furniture, furnishings, and articles
used in connection with the use or operation of the Improvements or the
Premises, it being understood that the enumeration of any specific
articles of property shall in no way result in or be held to exclude
any items of property not specifically mentioned (the property referred
to in this subparagraph (3), the "Personal Property");
(6) all Mortgagor's right, title and interest in all general
intangibles relating to design, development, operation, management and
use of the Premises or the Improvements, all certificates of occupancy,
zoning variances, building, use or other permits, approvals,
authorizations and consents obtained from and all materials prepared
for filing or filed with any governmental agency in connection with the
development, use, operation or management of the Premises and
Improvements, all construction, service, engineering, consulting,
leasing, architectural and other similar contracts concerning the
design, construction, management, operation, occupancy and/or use of
the Premises and Improvements, all architectural drawings, plans,
6
specifications, soil tests, feasibility studies, appraisals,
environmental studies, engineering reports and similar materials
relating to any portion of or all of the Premises and Improvements, and
all payment and performance bonds or warranties or guarantees relating
to the Premises or the Improvements, all to the extent assignable (the
"Permits, Plans and Warranties");
(7) Mortgagor's interest in and rights under any and all now
or hereafter existing leases or licenses (under which Mortgagor is
landlord or licensor) and subleases (under which Mortgagor is
sublandlord), concession, management, mineral or other agreements of a
similar kind that permit the use or occupancy of the Premises or the
Improvements for any purpose in return for any payment, or the
extraction or taking of any gas, oil, water or other minerals from the
Premises in return for payment of any fee, rent or royalty
(collectively, "Leases"), and all agreements or contracts for the sale
or other disposition of all or any part of the Premises or the
Improvements, now or hereafter entered into by Mortgagor, together with
all charges, fees, income, issues, profits, receipts, rents, revenues
or royalties payable thereunder ("Rents");
(8) all Mortgagor's right, title and interest in and to all
real estate tax refunds and all proceeds of the conversion, voluntary
or involuntary, of any of the Mortgaged Property into cash or
liquidated claims ("Proceeds"), including Proceeds of insurance
maintained by the Mortgagor and condemnation awards, any awards that
may become due by reason of the taking by eminent domain or any
transfer in lieu thereof of the whole or any part of the Premises or
Improvements or any rights appurtenant thereto, and any awards for
change of grade of streets, together with any and all moneys now or
hereafter on deposit for the payment of real estate taxes, assessments
or common area charges levied against the Mortgaged Property, unearned
premiums on policies of fire and other insurance maintained by the
Mortgagor covering any interest in the Mortgaged Property or required
by the Credit Agreement; and
(9) all Mortgagor's right, title and interest in and to all
extensions, improvements, betterments, renewals, substitutes and
replacements of and all additions and appurtenances to, the Land, the
Premises, the Improvements, the Personal Property, the Permits, Plans
and Warranties and the Leases, hereinafter acquired by or released to
7
the Mortgagor or constructed, assembled or placed by the Mortgagor on
the Land, the Premises or the Improvements, and all conversions of the
security constituted thereby, immediately upon such acquisition,
release, construction, assembling, placement or conversion, as the case
may be, and in each such case, without any further mortgage, deed of
trust, conveyance, assignment or other act by the Mortgagor, all of
which shall become subject to the lien of this Mortgage as fully and
completely, and with the same effect, as though now owned by the
Mortgagor and specifically described herein.
TO HAVE AND TO HOLD the Mortgaged Property unto the Mortgagee, its
successors and assigns, for the ratable benefit of the Secured Parties, forever,
subject only to the Permitted Encumbrances (as hereinafter defined) and to
satisfaction and cancelation as provided in Section 3.04.
ARTICLE I
Representations, Warranties and Covenants of Mortgagor
Mortgagor agrees, covenants, represents and/or warrants as follows:
SECTION 1.01. Title. (a) Mortgagor has good and marketable title to an
indefeasible fee estate in the Owned Land and Improvements located thereon
subject to no lien, charge or encumbrance other than Liens permitted by Section
6.02 of the Credit Agreement (collectively, the "Permitted Encumbrances").
Mortgagor is lawfully seized and possessed of and has a valid subsisting
leasehold estate in the Leased Land and Improvements located thereon subject to
no lien, charge or encumbrance other than the Permitted Encumbrances. This
Mortgage is and will remain a valid and enforceable first and prior Lien on the
Premises, Improvements and Rents subject only to the Permitted Encumbrances. The
Permitted Encumbrances do not materially interfere with the current use,
enjoyment, occupancy or operation of the Mortgaged Property.
(b) The Mortgaged Property is served by water, gas, electric, septic,
storm and sanitary sewage facilities, as may be applicable, and such utilities
serving the Premises and the Improvements are located in and in the future will
be located fully within the Premises or, in the case of such utilities, within
8
any right of way abutting the Premises. There is vehicular access to the
Premises and the Improvements which is provided by either a public right-of-way
abutting and contiguous with the Land or valid recorded unsubordinated
easements.
(c) Except as set forth on Schedule A, there are no leases (under which
Mortgagor is the lessor) affecting a material portion of the Mortgaged Property.
Each Lease is in full force and effect, and, except as set forth on Schedule A
hereto, Mortgagor has not given nor received any uncured or unwaived notice of
default with respect to any material obligation under any Lease. Each Lease is
subject to no lien, charge or encumbrance other than this Mortgage and the
Permitted Encumbrances. There is no pending or contemplated condemnation
proceeding affecting the Mortgaged Property or any sale or disposition thereof
in lieu of condemnation. Mortgagor is not obligated under any right of first
refusal, option or other contractual right to sell, assign or otherwise dispose
of any Mortgaged Property or any interest therein.
(d) All easement agreements, covenant or restrictive agreements,
supplemental agreements and any other instruments hereinabove referred to and
mortgaged hereby (collectively, the "Agreements") are and will remain valid,
subsisting and in full force and effect, unless the failure to remain valid,
subsisting and in full force and effect, individually or in the aggregate, could
not reasonably be expected to have a material adverse effect on the use and
operation of the Mortgaged Property by the Mortgagor for its intended use
("Material Adverse Effect"), and Mortgagor is not in default thereunder and has
fully performed the material terms thereof required to be performed through the
date hereof, and has no knowledge of any default thereunder or failure to fully
perform the terms thereof by any other party, nor of the occurrence of any event
that after notice or the passage of time or both will constitute a default
thereunder except such default as could not reasonably be expected to have a
Material Adverse Effect. The Mortgaged Property complies with all laws,
statutes, codes, ordinances, orders, judgments, decrees, injunctions, rules,
regulations and requirements pertaining to the Mortgaged Property (including any
applicable environmental, zoning, building, fire, occupational health and
safety, use and land use laws, ordinances, rules or regulations, approvals,
building permits and certificates of occupancy (collectively, the "Legal
Requirements")), except for any Legal Requirements, the failure to comply with
which shall not materially and adversely affect the use of the Mortgaged
9
Property for the business conducted on, the Mortgaged Property.
(e) To the extent required, certificates of occupancy and permits are
in effect for the Mortgaged Property as currently constructed.
(f) Mortgagor has good and lawful right and full power and authority to
mortgage the Mortgaged Property and will forever warrant and defend its title to
the Mortgaged Property, the rights of Mortgagee therein under this Mortgage and
the validity and priority of the lien of this Mortgage thereon against the
claims of all persons and parties except those having rights under Permitted
Encumbrances to the extent of those rights.
(g) This Mortgage, when duly recorded in the appropriate public records
and when financing statements are duly filed in the appropriate public records,
will create a valid, perfected and enforceable lien upon and security interest
in all the Mortgaged Property and there are no defenses or offsets to this
Mortgage or to any of the Obligations secured hereby.
SECTION 1.02. Credit Agreement; Certain Amounts. (a) This Mortgage is
given pursuant to the Credit Agreement. Each and every term and provision of the
Credit Agreement (excluding the governing law provisions thereof), including the
rights, remedies, obligations, covenants, conditions, agreements, indemnities,
representations and warranties of the parties thereto, shall be considered as if
a part of this Mortgage.
(b) To the extent the representations and covenants contained in this
Mortgage are more stringent or expansive than comparable representations and
covenants contained in the Credit Agreement, the representations and covenants
contained herein shall be construed to supplement the representations and
covenants in the Credit Agreement without creating a conflict or inconsistency
therewith, and Mortgagor shall be bound to the more stringent or expansive
representations and covenants hereunder, provided, however, that any item,
claim, action, omission or other matter expressly permitted by the Credit
Agreement with respect to the Mortgaged Property shall be permitted hereunder.
(c) If any remedy or right of Mortgagee pursuant hereto is acted upon
by Mortgagee or if any actions or proceedings (including any bankruptcy,
10
insolvency or reorganization proceedings) are commenced in which Mortgagee is
made a party and is obliged to defend or uphold or enforce this Mortgage or the
rights of Mortgagee hereunder or the terms of any Lease, or if a condemnation
proceeding is instituted affecting the Mortgaged Property, Mortgagor will pay
all reasonable sums, including reasonable attorneys' fees and disbursements,
incurred by Mortgagee related to the exercise of any remedy or right of
Mortgagee pursuant hereto or for the expense of any such action or proceeding
together with all statutory or other costs, disbursements and allowances,
interest thereon from the date of demand for payment thereof at the rate
specified in Section 2.07(d) of the Credit Agreement (the "Default Interest
Rate"), and such sums and the interest thereon shall, to the extent permissible
by law, be a lien on the Mortgaged Property prior to any right, title to,
interest in or claim upon the Mortgaged Property attaching or accruing
subsequent to the recording of this Mortgage and shall be secured by this
Mortgage to the extent permitted by law. Any payment of amounts due under this
Mortgage not made on or before the due date for such payments shall accrue
interest daily without notice from the due date until paid at the Default
Interest Rate, and such interest at the Default Interest Rate shall be
immediately due upon demand by Mortgagee.
SECTION 1.03. Payment of Taxes, Liens and Charges. (a) Except as may be
expressly permitted by the Credit Agreement, Mortgagor will pay and discharge
from time to time prior to the time when the same shall become delinquent, and
before any interest or penalty accrues thereon or attaches thereto, all taxes of
every kind and nature, all general and special assessments, levies, permits,
inspection and license fees, all water and sewer rents, all vault charges, and
all other public charges, and all service charges, common area charges, private
maintenance charges, utility charges and all other private charges, whether of a
like or different nature, imposed upon or assessed against the Mortgaged
Property or any part thereof or upon the Rents from the Mortgaged Property or
arising in respect of the occupancy, use or possession thereof.
(b) In the event of the passage of any state, Federal, municipal or
other governmental law, order, rule or regulation subsequent to the date hereof
(i) deducting from the value of real property for the purpose of taxation any
lien or encumbrance thereon or in any manner changing or modifying the laws now
in force governing the taxation of this Mortgage or debts secured by mortgages
11
or deeds of trust (other than laws governing income, franchise and similar taxes
generally) or the manner of collecting taxes thereon and (ii) imposing a tax to
be paid by Mortgagee, either directly or indirectly, on this Mortgage or any of
the Loan Documents or to require an amount of taxes to be withheld or deducted
therefrom, Mortgagor will promptly after obtaining notice or having knowledge of
such event notify Mortgagee of such event. In such event Mortgagor shall (i)
agree to enter into such further instruments as may be reasonably necessary or
desirable to obligate Mortgagor to make any applicable additional payments and
(ii) Mortgagor shall make such additional payments.
(c) At any time that an Event of Default shall have occurred hereunder
and be continuing, or if required by any law applicable to Mortgagor or to
Mortgagee, Mortgagee shall have the right to direct Mortgagor to make an initial
deposit on account of real estate taxes and assessments, insurance premiums and
common area charges, levied against or payable in respect of the Mortgaged
Property in advance and thereafter semi-annually, each such deposit to be equal
to one-half of any such annual charges estimated in a reasonable manner by
Mortgagee in order to accumulate with Mortgagee sufficient funds to pay such
taxes, assessments, insurance premiums and charges.
SECTION 1.04. Payment of Closing Costs. Mortgagor shall pay all
reasonable costs in connection with, relating to or arising out of the
preparation, execution and recording of this Mortgage, including title company
premiums and charges, inspection costs, survey costs, recording fees and taxes,
reasonable attorneys' fees and disbursements and all other similar reasonable
expenses of every kind.
SECTION 1.05. Alterations and Waste; Plans. (a) Mortgagor will not
alter, demolish, remove, renovate, expand, add to or erect any additions to the
existing Improvements or other structures or any part thereof on the Premises
which will materially interfere with the operation conducted thereon on the date
hereof, without the written consent of Mortgagee (which consent will not be
unreasonably withheld). Mortgagor will not commit any waste on the Mortgaged
Property or make any alteration to, or change in the use of, the Mortgaged
Property that will diminish the utility thereof for the operation of the
business except as may be permitted under the Credit Agreement or materially
increase any ordinary fire or other hazard arising out of construction or
operation, but in no event shall any such alteration or change by contrary to
12
the terms of any insurance policy required to be kept pursuant to Section 1.06.
Mortgagor will maintain and operate the Improvements and Personal Property in
commercially reasonable working order and condition.
(b) To the extent the same exist on the date hereof or are obtained in
connection with future permitted alterations, Mortgagor shall maintain a
complete set of final plans, specifications, blueprints and drawings for the
Mortgaged Property either at the Mortgaged Property or in a particular office at
the headquarters of Mortgagor to which Mortgagee shall have access upon
reasonable advance notice and at reasonable times.
SECTION 1.06. Insurance. Mortgagor will keep, cause to be kept or
ensure that Terex keeps the Improvements and Personal Property insured against
such risks, and in the manner, required by Section 5.02 of the Credit Agreement.
SECTION 1.07. Casualty and Condemnation. (a) The Mortgagor will furnish
to the Mortgagee prompt written notice of any casualty or other insured damage
to the Mortgaged Property or any portion thereof ("Casualty") or the taking of
the Mortgaged Property or any part thereof or interest therein under power of
eminent domain or by condemnation or similar proceeding ("Condemnation") or the
commencement of any action or proceeding for Condemnation.
(b) If any Casualty results in cash proceeds (whether in the
form of insurance proceeds or otherwise) ("Casualty Proceeds") or any
Condemnation results in cash proceeds ("Condemnation Proceeds", and together
with Casualty Proceeds, "Proceeds"), the Mortgagee is authorized to collect such
Proceeds and, if received by the Mortgagor, such Proceeds shall be paid over to
the Mortgagee; provided that (i) if the aggregate Proceeds in respect of such
event (other than proceeds of business interruption insurance) are less than
$1,000,000, such Proceeds shall be paid over to the Mortgagor unless a Default
or Event of Default has occurred and is continuing, and (ii) all proceeds of
business income insurance shall be paid over to the Mortgagor unless a Default
or Event of Default has occurred and is continuing. All such Proceeds retained
by or paid over to the Mortgagee shall be held by the Mortgagee and released or
applied in accordance with this Section 1.07.
13
(c) Proceeds relating to the Mortgaged Property held by the Mortgagee
pursuant to subsection (b) of this Section 1.07 shall be applied by the
Mortgagee to the payment of the cost of restoring or replacing the Mortgaged
Property so damaged, destroyed or taken or of the portion or portions of the
Mortgaged Property not so taken (the "Work") and shall be paid out from time to
time to the Mortgagor as and to the extent the Work (or the location and
acquisition of any replacement of the Mortgaged Property) progresses for the
payment thereof, but subject to each of the following conditions:
(i) the Mortgagor must promptly commence the restoration
process or the location, acquisition and replacement process in
connection with the Mortgaged Property;
(ii) the improvements shall (A) be in compliance with all
requirements of applicable Governmental Authorities such that all
representations and warranties of the Mortgagor relating to the
compliance of such Mortgaged Property with applicable laws, rules or
regulations in the Credit Agreement or this Mortgage will be correct in
all respects and (B) be at least equal in value and general utility to
the improvements that were on such Mortgaged Property (or that were on
the Mortgaged Property that has been replaced, if applicable) prior to
the casualty or condemnation, and in the case of a condemnation,
subject to the effect of such condemnation;
(iii) except as provided in (iv) below, each request for payment
shall be made on three business days' prior notice to the Mortgagee and
shall be accompanied by a certificate of the Mortgagor, stating (A)
that the sum requested is justly required to reimburse the Mortgagor
for payments by the Mortgagor to, or is justly due to, the contractor,
subcontractors, materialmen, laborers, engineers, architects or other
persons rendering services or materials for the Work (giving a brief
description of such services and materials), (B) no Event of Default
has occurred and is continuing and (C) that, when added to all sums
previously paid out by the Mortgagee, the sum requested does not exceed
the value of the Work done to the date of such certificate;
(iv) each request for payment in connection with the
acquisition of a replacement Mortgaged Property shall be made on
14
30 days' prior notice to the Mortgagee and, in connection therewith,
(A) each such request shall be accompanied by a copy of the sales
contract or other document governing the acquisition of the replacement
property by the Mortgagor and a certificate of the Mortgagor stating
that the sum requested represents the sales price under such contract
or document and the related reasonable transaction fees and expenses
(including brokerage fees) and setting forth in sufficient detail the
various components of such requested sum and (B) the Mortgagor shall
(I) in addition to any other items required to be delivered under this
Section 1.07), provide the Mortgagee with such opinions, documents,
certificates, title insurance policies, surveys and other insurance
policies as they may reasonably request and (II) take such other
actions as the Mortgagee may reasonably deem necessary or appropriate
(including actions with respect to the delivery to the Mortgagee of a
first priority Mortgage with respect to such real property for the
ratable benefit of the Secured Parties);
(v) upon request of the Mortgagee, the Mortgagor shall provide
the Mortgagee with waivers of lien satisfactory to the Mortgagee
covering that part of the Work for which payment or reimbursement is
being requested and, if required by the Mortgagee, by a search prepared
by a title company or licensed abstractor or by other evidence
satisfactory to the Mortgagee, that there has not been filed with
respect to such Mortgaged Property any mechanics' or other lien or
instrument for the retention of title in respect of any part of the
Work not discharged of record or bonded to the reasonable satisfaction
of the Mortgagee;
(vi) there shall be no Event of Default that has occurred and
is continuing;
(vii) the request for any payment after the Work has been
completed shall be accompanied by a copy of any certificate or
certificates required by law to render occupancy of the improvements
being rebuilt, repaired or restored legal; and
(viii) after commencing the Work, the Mortgagor shall continue to
perform the Work diligently and in good faith to completion in
15
accordance with the approved plans and specifications.
(d) If requested by Mortgagor, or if any Proceeds retained by
or paid over to the Mortgagee as provided above continue to be held by the
Mortgagee on the date that is 365 days after the occurrence of the event
resulting in such Proceeds, then such Proceeds shall be applied to prepay Term
Borrowings as provided in Section 2.13(f) of the Credit Agreement.
(e) Nothing in this Section 1.07 shall prevent the Mortgagee
from applying at any time all or any part of any Proceeds to (i) the curing of
any Event of Default under the Credit Agreement or (ii) the payment of any of
the Obligations after the occurrence and during the continuance of an Event of
Default.
SECTION 1.08. Assignment of Leases and Rents. (a) Mortgagor hereby
irrevocably and absolutely grants, transfers and assigns and grants a security
interest in all of its right title and interest in all Leases, together with any
and all extensions and renewals thereof for purposes of securing and discharging
the performance by Mortgagor of the Obligations. Mortgagor has not assigned or
executed any assignment of, and will not assign or execute any assignment of,
any other Lease or their respective Rents to anyone other than Mortgagee.
(b) Without Mortgagee's prior written consent, Mortgagor will not
modify, amend, terminate or consent to the cancelation, surrender or assignment
of any Lease if such modification, amendment, termination or consent could
reasonably be expected to be adverse to the interests of the Secured Parties or
the lien created by this Mortgage or have a materially adverse effect on the
value of the Mortgaged Property.
(c) Subject to Section 1.08(d), Mortgagor has assigned and transferred
to Mortgagee all of Mortgagor's right, title and interest in and to the Rents
now or hereafter arising from each Lease heretofore or hereafter made or agreed
to by Mortgagor, it being intended that this assignment establish, subject to
Section 1.08(b), an absolute transfer and assignment of all Rents and all Leases
to Mortgagee and not merely to grant a security interest therein. Subject to
Section 1.08(d), Mortgagee may in Mortgagor's name and stead (with or without
first taking possession of any of the Mortgaged Property personally or by
16
receiver as provided herein) operate the Mortgaged Property and rent, lease or
let all or any portion of any of the Mortgaged Property to any party or parties
at such rental and upon such terms as Mortgagee shall, in its sole discretion,
determine, and may collect and have the benefit of all of said Rents arising
from or accruing at any time thereafter or that may thereafter become due under
any Lease.
(d) So long as an Event of Default shall not have occurred and be
continuing, Mortgagee will not exercise any of its rights under Section 1.08(c),
and Mortgagor shall receive and collect the Rents accruing under any Lease; but
after the happening and during the continuance of any Event of Default,
Mortgagee may, at its option, receive and collect all Rents and enter upon the
Premises and Improvements through its officers, agents, employees or attorneys
for such purpose and for the operation and maintenance thereof and otherwise may
act in accordance with Section 2.03. Mortgagor hereby irrevocably authorizes and
directs each tenant, if any, and each successor, if any, to the interest of any
tenant under any Lease, respectively, to rely upon any notice of a claimed Event
of Default sent by Mortgagee to any such tenant or any of such tenant's
successors in interest, and thereafter to pay Rents to Mortgagee without any
obligation or right to inquire as to whether an Event of Default actually exists
and even if some notice to the contrary is received from the Mortgagor, who
shall have no right or claim against any such tenant or successor in interest
for any such Rents so paid to Mortgagee. Each tenant or any of such tenant's
successors in interest from whom Mortgagee or any officer, agent, attorney or
employee of Mortgagee shall have collected any Rents, shall be authorized to pay
Rents to Mortgagor only after such tenant or any of their successors in interest
shall have received written notice from Mortgagee that the Event of Default is
no longer continuing, unless and until a further notice of an Event of Default
is given by Mortgagee to such tenant or any of its successors in interest.
(e) Mortgagee will not become a mortgagee in possession so long as it
does not enter or take actual possession of the Mortgaged Property. In addition,
Mortgagee shall not be responsible or liable for performing any of the
obligations of the landlord under any Lease, for any waste by any tenant, or
others, for any dangerous or defective conditions of any of the Mortgaged
Property, for negligence in the management, upkeep, repair or control of any of
the Mortgaged Property or any other act or omission by any other person.
17
(f) Mortgagor shall furnish to Mortgagee, within 30 days after a
request by Mortgagee to do so, a written statement containing the names of all
tenants, subtenants and concessionaires of the Premises or Improvements, the
terms of any Lease, the space occupied and the rentals or license fees payable
thereunder.
SECTION 1.09. Restrictions on Transfers and Encumbrances. Except as
expressly permitted by the Credit Agreement, Mortgagor shall not directly or
indirectly sell, convey, deed over, alienate, assign, lease, sublease, license,
mortgage, pledge, encumber or otherwise transfer, create, consent to or suffer
the creation of any lien, charges or any form of encumbrance upon any interest
in or any part of the Mortgaged Property, or be divested of its title to the
Mortgaged Property or any interest therein in any manner or way, whether
voluntarily or involuntarily (other than resulting from a condemnation), or
engage in any common, cooperative, joint, time-sharing or other congregate
ownership of all or part thereof; provided, however, that Mortgagor may in the
ordinary course of business within reasonable commercial standards, enter into
easement or covenant agreements that relate to and/or benefit the operation of
the Mortgaged Property and that do not materially and adversely affect the use
and operation of the same (except for customary utility easements that service
the Mortgaged Property, which are permitted).
SECTION 1.10. Security Agreement. This Mortgage is both a mortgage of
real property and a grant of a security interest in personal property, and shall
constitute and serve as a "Security Agreement" within the meaning of the uniform
commercial code as adopted in the state wherein the Premises are located
("UCC"). Mortgagor has hereby granted unto Mortgagee a security interest in and
to all the Mortgaged Property described in this Mortgage that is not real
property, and simultaneously with the recording of this Mortgage, Mortgagor has
filed or will file UCC financing statements, and will file continuation
statements prior to the lapse thereof, at the appropriate offices in the state
in which the Premises are located to perfect the security interest granted by
this Mortgage in all the Mortgaged Property that is not real property. Mortgagor
hereby appoints Mortgagee as its true and lawful attorney-in-fact and agent, for
Mortgagor and in its name, place and stead, in any and all capacities, to
execute any document and to file the same in the appropriate offices (to the
extent it may lawfully do so), and to perform each and every act and thing
18
reasonably requisite and necessary to be done to perfect the security interest
contemplated by the preceding sentence. Mortgagee shall have all rights with
respect to the part of the Mortgaged Property that is the subject of a security
interest afforded by the UCC in addition to, but not in limitation of, the other
rights afforded Mortgagee hereunder and under the Security Agreement.
SECTION 1.11. Filing and Recording. Mortgagor will cause this Mortgage,
any other security instrument creating a security interest in or evidencing the
lien hereof upon the Mortgaged Property and each instrument of further assurance
to be filed, registered or recorded in such manner and in such places as may be
required by any present or future law in order to publish notice of and fully to
protect the lien hereof upon, and the security interest of Mortgagee in, the
Mortgaged Property. Mortgagor will pay all filing, registration or recording
fees, and all expenses incidental to the execution and acknowledgment of this
Mortgage, any mortgage supplemental hereto, any security instrument with respect
to the Personal Property, and any instrument of further assurance and all
Federal, state, county and municipal recording, documentary or intangible taxes
and other taxes, duties, imposts, assessments and charges arising out of or in
connection with the execution, delivery and recording of this Mortgage, any
mortgage supplemental hereto, any security instrument with respect to the
Personal Property or any instrument of further assurance.
SECTION 1.12. Further Assurances. Upon demand by Mortgagee, Mortgagor
will, at the cost of Mortgagor and without expense to Mortgagee, do, execute,
acknowledge and deliver all such further acts, deeds, conveyances, mortgages,
assignments, notices of assignment, transfers and assurances as Mortgagee shall
from time to time require for the better assuring, conveying, assigning,
transferring and confirming unto Mortgagee the property and rights hereby
conveyed or assigned or intended now or hereafter so to be, or which Mortgagor
may be or may hereafter become bound to convey or assign to Mortgagee, or for
carrying out the intention or facilitating the performance of the terms of this
Mortgage, or for filing, registering or recording this Mortgage, and on demand,
Mortgagor will also execute and deliver and hereby appoints Mortgagee as its
true and lawful attorney-in-fact and agent, for Mortgagor and in its name, place
and stead, in any and all capacities, to execute and file to the extent it may
lawfully do so, one or more financing statements, chattel mortgages or
comparable security instruments reasonably requested by Mortgagee to evidence
19
more effectively the lien hereof upon the Personal Property and to perform each
and every act and thing requisite and necessary to be done to accomplish the
same.
SECTION 1.13. Additions to Mortgaged Property. All right, title and
interest of Mortgagor in and to all extensions, improvements, betterments,
renewals, substitutes and replacements of, and all additions and appurtenances
to, the Mortgaged Property hereafter acquired by or released to Mortgagor or
constructed, assembled or placed by Mortgagor upon the Premises or the
Improvements, and all conversions of the security constituted thereby,
immediately upon such acquisition, release, construction, assembling, placement
or conversion, as the case may be, and in each such case without any further
mortgage, conveyance, assignment or other act by Mortgagor, shall become subject
to the lien and security interest of this Mortgage as fully and completely and
with the same effect as though now owned by Mortgagor and specifically described
in the grant of the Mortgaged Property above, but at any and all times Mortgagor
will execute and deliver to Mortgagee any and all such further assurances,
mortgages, conveyances or assignments thereof as Mortgagee may require for the
purpose of expressly and specifically subjecting the same to the lien and
security interest of this Mortgage.
SECTION 1.14. No Claims Against Mortgagee. Nothing contained in this
Mortgage shall constitute any consent or request by Mortgagee, express or
implied, for the performance of any labor or services or the furnishing of any
materials or other property in respect of the Mortgaged Property or any part
thereof, nor as giving Mortgagor any right, power or authority to contract for
or permit the performance of any labor or services or the furnishing of any
materials or other property in such fashion as would permit the making of any
claim against Mortgagee in respect thereof.
SECTION 1.15. Fixture Filing. Certain of the Mortgaged Property is or
will become "fixtures" (as that term is defined in the UCC) on the Land, and
this Mortgage upon being filed for record in the real estate records of the
county wherein such fixtures are situated shall operate also as a financing
statement filed as a fixture filing in accordance with the applicable provisions
of said UCC upon such of the Mortgaged Property that is or may become fixtures.
20
ARTICLE II
Defaults and Remedies
SECTION 2.01. Events of Default. Any Event of Default under the Credit
Agreement (as such term is defined therein) shall constitute an Event of Default
under this Mortgage.
SECTION 2.02. Demand for Payment. If an Event of Default shall occur
and be continuing, then, upon written demand of Mortgagee, Mortgagor will pay to
Mortgagee all amounts due hereunder and such further amount as shall be
sufficient to cover the costs and expenses of collection, including attorneys'
fees, disbursements and expenses incurred by Mortgagee and Mortgagee shall be
entitled and empowered to institute an action or proceedings at law or in equity
for the collection of the sums so due and unpaid, to prosecute any such action
or proceedings to judgment or final decree, to enforce any such judgment or
final decree against Mortgagor and to collect, in any manner provided by law,
all moneys adjudged or decreed to be payable.
SECTION 2.03. Rights To Take Possession, Operate and Apply Revenues.
(a) If an Event of Default shall occur and be continuing, Mortgagor shall, upon
demand of Mortgagee, forthwith surrender to Mortgagee actual possession of the
Mortgaged Property and, if and to the extent not prohibited by applicable law,
Mortgagee itself, or by such officers or agents as it may appoint, may then
enter and take possession of all the Mortgaged Property without the appointment
of a receiver or an application therefor, exclude Mortgagor and its agents and
employees wholly therefrom, and have access to the books, papers and accounts of
Mortgagor.
(b) If Mortgagor shall for any reason fail to surrender or deliver the
Mortgaged Property or any part thereof after such demand by Mortgagee, Mortgagee
may to the extent not prohibited by applicable law, obtain a judgment or decree
conferring upon Mortgagee the right to immediate possession or requiring
Mortgagor to deliver immediate possession of the Mortgaged Property to
Mortgagee, to the entry of which judgment or decree Mortgagor hereby
specifically consents. Mortgagor will pay to Mortgagee, upon demand, all
reasonable expenses of obtaining such judgment or decree, including reasonable
compensation to Mortgagee's attorneys and agents with interest thereon at the
21
Default Interest Rate; and all such expenses and compensation shall, until paid,
be secured by this Mortgage.
(c) Upon every such entry or taking of possession, Mortgagee may, to
the extent not prohibited by applicable law, hold, store, use, operate, manage
and control the Mortgaged Property, conduct the business thereof and, from time
to time, (i) make all necessary and proper maintenance, repairs, renewals,
replacements, additions, betterments and improvements thereto and thereon, (ii)
purchase or otherwise acquire additional fixtures, personalty and other
property, (iii) insure or keep the Mortgaged Property insured, (iv) manage and
operate the Mortgaged Property and exercise all the rights and powers of
Mortgagor to the same extent as Mortgagor could in its own name or otherwise
with respect to the same, and (v) enter into any and all agreements with respect
to the exercise by others of any of the powers herein granted Mortgagee, all as
may from time to time be directed or determined by Mortgagee to be in its best
interest and Mortgagor hereby appoints Mortgagee as its true and lawful
attorney-in-fact and agent, for Mortgagor and in its name, place and stead, in
any and all capacities, to perform any of the foregoing acts. Mortgagee may
collect and receive all the Rents, issues, profits and revenues from the
Mortgaged Property, including those past due as well as those accruing
thereafter, and, after deducting (i) all expenses of taking, holding, managing
and operating the Mortgaged Property (including compensation for the services of
all persons employed for such purposes), (ii) the costs of all such maintenance,
repairs, renewals, replacements, additions, betterments, improvements, purchases
and acquisitions, (iii) the costs of insurance, (iv) such taxes, assessments and
other similar charges as Mortgagee may at its option pay, (v) other proper
charges upon the Mortgaged Property or any part thereof and (vi) the
compensation, expenses and disbursements of the attorneys and agents of
Mortgagee, Mortgagee shall apply the remainder of the moneys and proceeds so
received first to the payment of the Mortgagee for the satisfaction of the
Obligations, and second, if there is any surplus, to Mortgagor, subject to the
entitlement of others thereto under applicable law.
(d) Whenever, before any sale of the Mortgaged Property under Section
2.06, all Obligations that are then due shall have been paid and all Events of
Default fully cured, Mortgagee will surrender possession of the Mortgaged
Property back to Mortgagor, its successors or assigns. The same right of taking
22
possession shall, however, arise again if any subsequent Event of Default shall
occur and be continuing.
SECTION 2.04. Right To Cure Failure to Perform. Should Mortgagor [or
Terex]3 fail in the payment, performance or observance of any term, covenant or
condition required by this Mortgage or the Credit Agreement (with respect to the
Mortgaged Property), Mortgagee may at any time after ten days notice to the
Mortgager (or, to the extent the Mortgagee deems it necessary to act prior the
end of such ten day notice period in order to preserve the Mortgaged Property,
the Mortgagor's rights to and use of the Mortgaged Property or the lien created
by this Mortgage any shorter notice period) pay, perform or observe the same,
and all payments made or costs or expenses incurred by Mortgagee in connection
therewith shall be secured hereby and shall be, without demand, immediately
repaid by Mortgagor to Mortgagee with interest thereon at the Default Interest
Rate. Mortgagee shall be the sole judge of the necessity for any such actions
and of the amounts to be paid. Mortgagee is hereby empowered to enter and to
authorize others to enter upon the Premises or the Improvements or any part
thereof for the purpose of performing or observing any such defaulted term,
covenant or condition without having any obligation to so perform or observe and
without thereby becoming liable to Mortgagor, to any person in possession
holding under Mortgagor or to any other person.
SECTION 2.05. Right to a Receiver. If an Event of Default shall occur
and be continuing, Mortgagee, upon application to a court of competent
jurisdiction, shall be entitled as a matter of right to the appointment of a
receiver to take possession of and to operate the Mortgaged Property and to
collect and apply the Rents. The receiver shall have all of the rights and
powers permitted under the laws of the state wherein the Mortgaged Property is
located. Mortgagor shall pay to Mortgagee upon demand all expenses, including
receiver's fees, attorney's fees and disbursements, costs and agent's
compensation incurred pursuant to the provisions of this Section 2.05; and all
such expenses shall be secured by this Mortgage and shall be, without demand,
immediately repaid by Mortgagor to Mortgagee with interest thereon at the
Default Interest Rate.
SECTION 2.06. Foreclosure and Sale. (a) If an Event of Default shall
occur and be continuing, Mortgagee may elect to sell the Mortgaged Property or
---------------
3 Include where Mortgagor is not Terex.
23
any part of the Mortgaged Property by exercise of the power of foreclosure or of
sale granted to Mortgagee by applicable law or this Mortgage. In such case,
Mortgagee may commence a civil action to foreclose this Mortgage, or it may
proceed and sell the Mortgaged Property to satisfy any Obligation. Mortgagee or
an officer appointed by a judgment of foreclosure to sell the Mortgaged
Property, may sell all or such parts of the Mortgaged Property as may be chosen
by Mortgagee at the time and place of sale fixed by it in a notice of sale,
either as a whole or in separate lots, parcels or items as Mortgagee shall deem
expedient, and in such order as it may determine, at public auction to the
highest bidder. Mortgagee or an officer appointed by a judgment of foreclosure
to sell the Mortgaged Property may postpone any foreclosure or other sale of all
or any portion of the Mortgaged Property by public announcement at such time and
place of sale, and from time to time thereafter may postpone such sale by public
announcement or subsequently noticed sale. Without further notice, Mortgagee or
an officer appointed to sell the Mortgaged Property may make such sale at the
time fixed by the last postponement, or may, in its discretion, give a new
notice of sale. Any person, including Mortgagor or Mortgagee or any designee or
affiliate thereof, may purchase at such sale.
(b) The Mortgaged Property may be sold subject to unpaid taxes and
Permitted Encumbrances, and, after deducting all costs, fees and expenses of
Mortgagee (including costs of evidence of title in connection with the sale),
Mortgagee or an officer that makes any sale shall apply the proceeds of sale in
the manner set forth in Section 2.08.
(c) Any foreclosure or other sale of less than the whole of the
Mortgaged Property or any defective or irregular sale made hereunder shall not
exhaust the power of foreclosure or of sale provided for herein; and subsequent
sales may be made hereunder until the Obligations have been satisfied, or the
entirety of the Mortgaged Property has been sold.
(d) If an Event of Default shall occur and be continuing, Mortgagee may
instead of, or in addition to, exercising the rights described in Section
2.06(a) above and either with or without entry or taking possession as herein
permitted, proceed by a suit or suits in law or in equity or by any other
appropriate proceeding or remedy (i) to specifically enforce payment of some or
all of the Obligations, or the performance of any term, covenant, condition or
agreement of this Mortgage or any other Loan Document or any other right, or
24
(ii) to pursue any other remedy available to Mortgagee, all as Mortgagee shall
determine most effectual for such purposes.
SECTION 2.07. Other Remedies. (a) In case an Event of Default shall
occur and be continuing, Mortgagee may also exercise, to the extent not
prohibited by law, any or all of the remedies available to a secured party under
the UCC.
(b) In connection with a sale of the Mortgaged Property or any Personal
Property and the application of the proceeds of sale as provided in Section
2.08, Mortgagee shall be entitled to enforce payment of and to receive up to the
principal amount of the Obligations, plus all other charges, payments and costs
due under this Mortgage, and to recover a deficiency judgment for any portion of
the aggregate principal amount of the Obligations remaining unpaid, with
interest.
SECTION 2.08. Application of Sale Proceeds and Rents. After any
foreclosure sale of all or any of the Mortgaged Property, Mortgagee shall
receive the proceeds of sale, no purchaser shall be required to see to the
application of the proceeds and Mortgagee shall apply the proceeds of the sale
together with any Rents that may have been collected and any other sums that
then may be held by Mortgagee under this Mortgage as follows:
FIRST, to the payment of all costs and expenses incurred by
the Mortgagee, Administrative Agent or the Collateral Agent (in their
capacities as such hereunder or under any other Loan Document) in
connection with such collection or sale or otherwise in connection with
this Mortgage or any of the Obligations, including all court costs and
the fees and expenses of its agents and legal counsel, the repayment of
all advances made by the Mortgagee hereunder, the Collateral Agent
under any other Loan Document on behalf of the Mortgagor or any other
Loan Party and any other costs or expenses incurred in connection with
the exercise of any right or remedy hereunder or under any other Loan
Document;
SECOND, to the payment in full of the Obligations (the amounts
so applied to be distributed among the Secured Parties pro rata in
accordance with the amounts of the Obligations owed to them on the date
of any such distribution); and
25
THIRD, to the Mortgagor, its successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
The Mortgagee shall have absolute discretion as to the time of application of
any such proceeds, moneys or balances in accordance with this Mortgage. Upon any
sale of the Mortgaged Property by the Mortgagee (including pursuant to a power
of sale granted by statute or under a judicial proceeding), the receipt of the
Mortgagee or of the officer making the sale shall be a sufficient discharge to
the purchaser or purchasers of the Mortgaged Property so sold and such purchaser
or purchasers shall not be obligated to see to the application of any part of
the purchase money paid over to the Mortgagee or such officer or be answerable
in any way for the misapplication thereof.
SECTION 2.09. Mortgagor as Tenant Holding Over. If Mortgagor remains in
possession of any of the Mortgaged Property after any foreclosure sale by
Mortgagee, at Mortgagee's election Mortgagor shall be deemed a tenant holding
over and shall forthwith surrender possession to the purchaser or purchasers at
such sale or be summarily dispossessed or evicted according to provisions of law
applicable to tenants holding over.
SECTION 2.10. Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Mortgagor waives, to the extent not prohibited by law, (i) the
benefit of all laws now existing or that hereafter may be enacted providing for
any appraisement of any portion of the Mortgaged Property, (ii) the benefit of
all laws now existing or that may be hereafter enacted in any way extending the
time for the enforcement or the collection of amounts due under any of the
Obligations or creating or extending a period of redemption from any sale made
in collecting said debt or any other amounts due Mortgagee, (iii) any right to
at any time insist upon, plead, claim or take the benefit or advantage of any
law now or hereafter in force providing for any appraisement, homestead
exemption, valuation, stay, statute of limitations, extension or redemption, or
sale of the Mortgaged Property as separate tracts, units or estates or as a
single parcel in the event of foreclosure or notice of deficiency, and (iv) all
rights of redemption, valuation, appraisement, stay of execution, notice of
election to mature or declare due the whole of or each of the Obligations and
marshaling in the event of foreclosure of this Mortgage.
SECTION 2.11. Discontinuance of Proceedings. In case Mortgagee shall
proceed to enforce any right, power or remedy under this Mortgage by
26
foreclosure, entry or otherwise, and such proceedings shall be discontinued or
abandoned for any reason, or shall be determined adversely to Mortgagee, then
and in every such case Mortgagor and Mortgagee shall be restored to their former
positions and rights hereunder, and all rights, powers and remedies of Mortgagee
shall continue as if no such proceeding had been taken.
SECTION 2.12. Suits To Protect the Mortgaged Property. Mortgagee shall
have power (a) to institute and maintain suits and proceedings to prevent any
impairment of the Mortgaged Property by any acts that may be unlawful or in
violation of this Mortgage, (b) to preserve or protect its interest in the
Mortgaged Property and in the Rents arising therefrom and (c) to restrain the
enforcement of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of or compliance with such enactment, rule or order would impair
the security or be prejudicial to the interest of Mortgagee hereunder.
SECTION 2.13. Filing Proofs of Claim. In case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other proceedings affecting Mortgagor, Mortgagee shall, to the extent permitted
by law, be entitled to file such proofs of claim and other documents as may be
necessary or advisable in order to have the claims of Mortgagee allowed in such
proceedings for the Obligations secured by this Mortgage at the date of the
institution of such proceedings and for any interest accrued, late charges and
additional interest or other amounts due or that may become due and payable
hereunder after such date.
SECTION 2.14. Possession by Mortgagee. Notwithstanding the appointment
of any receiver, liquidator or trustee of Mortgagor, any of its property or the
Mortgaged Property, Mortgagee shall be entitled, to the extent not prohibited by
law, to remain in possession and control of all parts of the Mortgaged Property
now or hereafter granted under this Mortgage to Mortgagee in accordance with the
terms hereof and applicable law.
SECTION 2.15. Waiver. (a) No delay or failure by Mortgagee to exercise
any right, power or remedy accruing upon any breach or Event of Default shall
exhaust or impair any such right, power or remedy or be construed to be a waiver
of any
27
such breach or Event of Default or acquiescence therein; and every right, power
and remedy given by this Mortgage to Mortgagee may be exercised from time to
time and as often as may be deemed expedient by Mortgagee. No consent or waiver
by Mortgagee to or of any breach or default by Mortgagor in the performance of
the Obligations shall be deemed or construed to be a consent or waiver to or of
any other breach or Event of Default in the performance of the same or any other
Obligations by Mortgagor hereunder. No failure on the part of Mortgagee to
complain of any act or failure to act or to declare an Event of Default,
irrespective of how long such failure continues, shall constitute a waiver by
Mortgagee of its rights hereunder or impair any rights, powers or remedies
consequent on any future Event of Default by Mortgagor.
(b) Even if Mortgagee (i) grants some forbearance or an extension of
time for the payment of any sums secured hereby, (ii) takes other or additional
security for the payment of any sums secured hereby, (iii) waives or does not
exercise some right granted herein or under the Loan Documents, (iv) releases a
part of the Mortgaged Property from this Mortgage, (v) agrees to change some of
the terms, covenants, conditions or agreements of any of the Loan Documents,
(vi) consents to the filing of a map, plat or replat affecting the Premises,
(vii) consents to the granting of an easement or other right affecting the
Premises or (viii) makes or consents to an agreement subordinating Mortgagee's
lien on the Mortgaged Property hereunder; no such act or omission shall preclude
Mortgagee from exercising any other right, power or privilege herein granted or
intended to be granted in the event of any breach or Event of Default then made
or of any subsequent default; nor, except as otherwise expressly provided in an
instrument executed by Mortgagee, shall this Mortgage be altered thereby. In the
event of the sale or transfer by operation of law or otherwise of all or part of
the Mortgaged Property, Mortgagee is hereby authorized and empowered to deal
with any vendee or transferee with reference to the Mortgaged Property secured
hereby, or with reference to any of the terms, covenants, conditions or
agreements hereof, as fully and to the same extent as it might deal with the
original parties hereto and without in any way releasing or discharging any
liabilities, obligations or undertakings.
SECTION 2.16. Remedies Cumulative. No right, power or remedy conferred
upon or reserved to Mortgagee by this Mortgage is intended to be exclusive of
any other right, power or remedy, and each and every such right, power and
28
remedy shall be cumulative and concurrent and in addition to any other right,
power and remedy given hereunder or now or hereafter existing at law or in
equity or by statute.
ARTICLE III
Miscellaneous
SECTION 3.01. Partial Invalidity. In the event any one or more of the
provisions contained in this Mortgage should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein, at the option of Mortgagee, shall not in
any way be affected or impaired thereby. The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 3.02. Notices. All notices and communications hereunder shall
be in writing and given as provided in Section 9.01 of the Credit Agreement.
[All communications and notices hereunder to the Mortgagor shall be given to it
in care of Terex.]4
SECTION 3.03. Successors and Assigns. All of the grants, covenants,
terms, provisions and conditions herein shall run with the Premises and the
Improvements and shall apply to, bind and inure to, the benefit of the permitted
successors and assigns of Mortgagor and the successors and assigns of Mortgagee.
SECTION 3.04. Satisfaction and Cancelation. (a) The conveyance to
Mortgagee of the Mortgaged Property as security, created and consummated by this
Mortgage shall be null and void when all the Obligations have been paid in full,
the Lenders have no further commitment to lend under the Credit Agreement, the
L/C Exposure has been reduced to zero and the Issuing Bank has no further
obligation to issue Letters of Credit under the Credit Agreement.
------------
4 Include where Mortgagee is not Terex.
29
(b) Upon a sale or other transfer by the Mortgagor to any Person who is
not a Loan Party of all or any portion of the Mortgaged Property that is
permitted under the Credit Agreement and the application of the Net Cash
Proceeds of such sale or financing in accordance with the Credit Agreement, or,
upon the effectiveness of any written consent to the release of the lien of this
Mortgage in all or any portion of the Mortgaged Property, the lien of this
Mortgage shall be released from the applicable portion of the Mortgaged
Property. The Mortgagor shall give the Mortgagee reasonable written notice of
any sale or financing of the Mortgaged Property prior to the closing of such
sale or financing.
(c) In connection with any termination or release pursuant to paragraph
(a) or (b), the Mortgage shall be marked "satisfied" by the Mortgagee, and this
Mortgage shall be canceled of record at the request and at the expense of the
Mortgagor. Mortgagee shall execute any documents reasonably requested by
Mortgagor to evidence the foregoing and Mortgagor will pay all costs and
expenses, including reasonable attorneys' fees, disbursements and other charges,
incurred by Mortgagee in connection with the preparation and execution of such
documents.
SECTION 3.05. Definitions. As used in this Mortgage, the singular shall
include the plural as the context requires and the following words and phrases
shall have the following meanings: (a) "including" shall mean "including but not
limited to"; (b) "provisions" shall mean "provisions, terms, covenants and/or
conditions"; (c) "lien" shall mean "lien, charge, encumbrance, security
interest, mortgage or deed of trust"; (d) "obligation" shall mean "obligation,
duty, covenant and/or condition"; and (e) "any of the Mortgaged Property" shall
mean "the Mortgaged Property or any part thereof or interest therein". Any act
that Mortgagee is permitted to perform hereunder may be performed at any time
and from time to time by Mortgagee or any person or entity designated by
Mortgagee. Any act that is prohibited to Mortgagor hereunder is also prohibited
to all lessees of any of the Mortgaged Property. Each appoint ment of Mortgagee
as attorney-in-fact for Mortgagor under the Mortgage is irrevocable, with power
of substitution and coupled with an interest. Subject to the applicable
provisions hereof, Mortgagee has the right to refuse to grant its consent,
approval or acceptance or to indicate its satisfaction, in its sole discretion,
whenever such consent, approval, acceptance or satisfaction is required
hereunder.
30
SECTION 3.06. Multisite Real Estate Transaction. Mortgagor acknowledges
that this Mortgage is one of a number of Other Mortgages and Security Documents
that secure the Obligations. Mortgagor agrees that the lien of this Mortgage
shall be absolute and unconditional and shall not in any manner be affected or
impaired by any acts or omissions whatsoever of Mortgagee and without limiting
the generality of the foregoing, the lien hereof shall not be impaired by any
acceptance by the Mortgagee of any security for or guarantees of any of the
Obligations hereby secured, or by any failure, neglect or omission on the part
of Mortgagee to realize upon or protect any Obligation or indebtedness hereby
secured or any collateral security therefor including the Other Mortgages and
other Security Documents. The lien hereof shall not in any manner be impaired or
affected by any release (except as to the property released), sale, pledge,
surrender, compromise, settlement, renewal, extension, indulgence, alteration,
changing, modification or disposition of any of the Obligations secured or of
any of the collateral security therefor, including the Other Mortgages and other
Security Documents or of any guarantee thereof, and Mortgagee may at its
discretion foreclose, exercise any power of sale, or exercise any other remedy
available to it under any or all of the Other Mortgages and other Security
Documents without first exercising or enforcing any of its rights and remedies
hereunder. Such exercise of Mortgagee's rights and remedies under any or all of
the Other Mortgages and other Security Documents shall not in any manner impair
the indebtedness hereby secured or the lien of this Mortgage and any exercise of
the rights or remedies of Mortgagee hereunder shall not impair the lien of any
of the Other Mortgages and other Security Documents or any of Mortgagee's rights
and remedies thereunder. Mortgagor specifically consents and agrees that
Mortgagee may exercise its rights and remedies hereunder and under the Other
Mortgages and other Security Documents separately or concurrently and in any
order that it may deem appropriate and waives any rights of subrogation.
ARTICLE IV
Subject Leases
SECTION 4.01. The Subject Leases. (a) Each Subject Lease is in full
force and effect in accordance with the terms thereof, and has not been modified
except as expressly set forth on Exhibit B hereto. Mortgagor has delivered to
Mortgagee a true, correct and complete copy of each Subject Lease. No material
31
default exists, and to the best knowledge of Mortgagor, no event or act has
occurred and no condition exists which with the passage of time or the giving of
notice or both would constitute a default, under any Subject Lease. The
execution and delivery of this Mortgage by Mortgagor (i) does not require the
consent or approval of the landlord under any Subject Lease (or, if any consent
or approval of the landlord is required, such has been obtained and a copy of
such consent or approval has been delivered to Mortgagee or the Mortgagor will
use commercially reasonable efforts to obtain such consent or approval) and (ii)
will not violate or result in a default under any Subject Lease.
(b) Without the prior written consent of Mortgagee, Mortgagor
shall not modify, amend, or in any way alter the terms of any Subject Lease if
such modification, amendment or alteration would increase the monetary
obligations of the Mortgagor under the Subject Lease or otherwise be adverse in
any respect to the interests of Mortgagee or materially lower the value of the
Mortgaged Property. Except to the extent expressly permitted under the Credit
Agreement, without the prior written consent of Mortgagee (which consent shall
not be unreasonably withheld) Mortgagor shall not (i) in any way cancel,
release, terminate, surrender or reduce the term of any Subject Lease, (ii)
waive, excuse, condone or in any way release or discharge landlord of or from
the obligations, covenants, conditions and agreements by said landlord to be
done and performed or (iv) consent to the subordination of any Subject Lease to
any mortgage unless such subordination is required by the terms of such Subject
Lease; provided that the Mortgagor shall take all commercially reasonable steps
to ensure such Subject Lease does not require such consent. Any attempt on the
part of Mortgagor to do any of the foregoing without such written consent of
Mortgagee shall be null and void and of no effect and shall constitute a Default
hereunder.
(c) Mortgagor shall at all times promptly and faithfully keep
and perform in all material respects, or cause to be kept and performed in all
material respects, all the covenants and conditions contained in each Subject
Lease by the lessee therein to be kept and performed and shall in all material
respects conform to and comply with the terms and conditions of each Subject
Lease and Mortgagor further covenants that it will not do or permit anything to
be done, the doing of which, or refrain from doing anything, the omission of
which, will impair the security of this Mortgage or will be reason for
32
declaring a material default under any Subject Lease.
(d) Mortgagor shall give Mortgagee notice in writing promptly
after obtaining knowledge thereof of any material default on the part of the
landlord under any Subject Lease or of the receipt by Mortgagor of any notice of
default from the landlord thereunder by providing to Mortgagee a copy of any
such notice received by Mortgagor from such landlord and this shall be done
without regard to the fact that Mortgagee may be entitled to such notice
directly from the landlord. Mortgagor shall promptly notify Mortgagee of any
default under any Subject Lease by landlord or giving of any notice by the
landlord to Mortgagor of such landlord's intention to end the term thereof.
Mortgagor shall furnish to Mortgagee promptly upon Mortgagee's reasonable
request any and all information concerning the performance by Mortgagor of the
covenants of any Subject Lease and shall permit Mortgagee or its representative
at all reasonable times, upon reasonable notice, to make investigation or
examination concerning the performance by Mortgagor of the covenants of any
Subject Lease.
(e) Mortgagee may (but shall not be obligated to) at any time after ten
days notice to the Mortgagor (or, to the extent the Mortgagee deems it necessary
to act prior the end of such ten day notice period on order to preserve the
Mortgaged Property, the Mortgagor's rights to and use of the Mortgaged Property
or the lien created by this Mortgage, any shorter notice period) take any such
action Mortgagee deems necessary or desirable to cure, in whole or in part, any
failure of compliance by Mortgagor under any Subject Lease; and upon the receipt
by Mortgagee from Mortgagor or the landlord under any Subject Lease of any
written notice of default by Mortgagor as the lessee thereunder, Mortgagee may
rely thereon, and such notice shall constitute full authority and protection to
Mortgagee for any action taken or omitted to be taken in good faith reliance
thereon. All sums, including reasonable attorneys' fees, so expended by the
Mortgagee to cure or prevent any such default, or expended to sustain the lien
of this Mortgage or its priority, shall be deemed secured by this Mortgage and
shall be paid by the Mortgagor on demand, with interest accruing thereon at the
Default Interest Rate. Subject to the provisions set forth in the first sentence
of this Section 4.01(e), Mortgagor hereby expressly grants to Mortgagee (subject
to the terms of each Subject Lease), and agrees that Mortgagee shall have, the
absolute and immediate right to enter in and upon the Leased Land and the
33
Improvements or any part thereof to such extent and as often as Mortgagee, in
its discretion, deems necessary or desirable in order to cure any such default
or alleged default by Mortgagor.
(f) Upon the occurrence and continuance of any Event of
Default hereunder, all lessee's options, elections and approval rights, together
with the right of termination, cancelation, modification, change, supplement,
alteration or amendment of each Subject Lease, all of which have been assigned
for collateral purposes to Mortgagee, shall automatically vest exclusively in
and be exercisable solely by Mortgagee.
(g) INTENTIONALLY OMITTED
(h) Mortgagor will give Mortgagee prompt written notice of the
commencement of any arbitration or appraisal proceeding under and pursuant to
the provisions of the Subject Lease. Upon the occurrence and continuance of any
Event of Default hereunder, Mortgagee shall have the right, but not the
obligation, to intervene and participate in any such proceeding and Mortgagor
shall confer with Mortgagee to the extent which Mortgagee deems necessary for
the protection of Mortgagee. Mortgagor may compromise any dispute or approval
which is the subject of an arbitration or appraisal proceeding with the prior
written consent of Mortgagee which will not be unreasonably withheld or delayed.
(i) So long as this Mortgage is in effect, there shall be no
merger of any Subject Lease or any interest therein, or of the leasehold estate
created thereby, with the fee estate in the Land or any portion thereof by
reason of the fact that such Subject Lease or such interest therein may be held
directly or indirectly by or for the account of any person who shall hold the
landlord's leasehold estate or fee estate in the Land or any portion thereof or
any interest of the landlord under such Subject Lease. In case the Mortgagor
acquires fee title to the Land, this Mortgage shall attach to and cover and be a
lien upon the fee title or such other estate so acquired, and such fee title or
other estate shall, without further assignment, mortgage or conveyance, become
and be subject to the lien of and covered by this Mortgage. Mortgagor shall
notify Mortgagee of any such acquisition and, on written request by Mortgagee,
shall cause to be executed and recorded all such other and further assurances or
other instruments in writing as may in the reasonable opinion of Mortgagee be
necessary or appropriate to effect the intent and meaning hereof and shall
34
deliver to Mortgagee an endorsement to Mortgagee's loan title insurance policy
insuring that such fee title or other estate is subject to the lien of this
Mortgage.
(j) In the event that the Mortgagor as lessee under any
Subject Lease exercises any option or right to purchase any parcel of land which
option or right is granted under said Subject Lease, then upon the vesting of
the title of such parcel in the Mortgagor, this Mortgage shall attach to and
cover and be a lien upon the fee title or such other estate so acquired, and
such fee title or other estate shall, without further assignment, mortgage or
conveyance, become and be subject to the lien of and covered by this Mortgage.
(k) If any action or proceeding shall be instituted to evict
Mortgagor or to recover possession of any leasehold parcel or any part thereof
or interest therein or any action or proceeding otherwise affecting any Subject
Lease or this Mortgage shall be instituted, then Mortgagor will, promptly upon
service thereof on or to Mortgagor, deliver to Mortgagee a notice of motion,
order to show cause and of all other provisions, pleadings, and papers, however
designated, served in any such action or proceeding.
(l) The lien of this Mortgage shall attach to all of
Mortgagor's rights and remedies at any time arising under or pursuant to
Subsection 365(h) of the Bankruptcy Code, 11 U.S.C. 365(h), as the same may
hereafter be amended (the "Bankruptcy Code"), including, without limitation, all
of Mortgagor's rights to remain in possession of each leasehold parcel.
(m) Mortgagor hereby unconditionally assigns, transfers and
sets over to Mortgagee all of Mortgagor's claims and rights to the payment of
damages arising from any rejection of any Subject Lease by the lessor or any
other fee owner of any leasehold parcel or any portion thereof under the
Bankruptcy Code. Mortgagee shall have the right to proceed in its own name or in
the name of Mortgagor in respect of any claim, suit, action or proceeding
relating to the rejection of the Subject Lease, including, without limitation,
the right to file and prosecute, without joining or the joinder of Mortgagor,
any proofs of claim, complaints, motions, applications, notices and other
documents, in any case with respect to the lessor or any fee owner of all or a
portion of any leasehold parcel under the Bankruptcy Code. This assignment
35
constitutes a present, irrevocable and unconditional assignment of the foregoing
claims, rights and remedies, and shall continue in effect until, pursuant to
Section 3.04 hereof, the conveyance of the Mortgaged Property to Mortgagee is
null and void. Any amounts received by Mortgagee as damages arising out of the
rejection of the Subject Lease as aforesaid shall be applied first to all costs
and expenses of Mortgagee (including, without limitation, attorneys' fees)
incurred in connection with the exercise of any of its rights or remedies under
this paragraph. Mortgagor shall promptly make, execute, acknowledge and deliver,
in form and substance satisfactory to Mortgagee, a UCC financing statement (Form
UCC-1) and all such additional instruments, agreements and other documents, as
may at any time hereafter be required by Mortgagee to effectuate and carry out
the assignment pursuant to this paragraph.
(n) If pursuant to Subsection 365(h)(2) of the Bankruptcy
Code, 11 U.S.C. ss. 365(h)(2), Mortgagor shall seek to offset against the rent
reserved in any Subject Lease the amount of any damages caused by the
nonperformance by the lessor or any fee owner of any of their respective
obligations under such Subject Lease after the rejection by the lessor or any
fee owner of such Subject Lease under the Bankruptcy Code, then Mortgagor shall,
prior to effecting such offset, notify Mortgagee of its intent to do so, setting
forth the amount proposed to be so offset and the basis therefor. Mortgagee
shall have the right to object to all or any part of such offset that, in the
reasonable judgment of Mortgagee, would constitute a breach of such Subject
Lease, and in the event of such objection, Mortgagor shall not effect any offset
of the amounts so objected to by Mortgagee. Neither Mortgagee's failure to
object as aforesaid nor any objection relating to such offset shall constitute
an approval of any such offset by Mortgagee.
(o) If any action, proceeding, motion or notice shall be
commenced or filed in respect of the lessor or any fee owner of any leasehold
parcel, or any portion thereof or interest therein, or any Subject Lease in
connection with any case under the Bankruptcy Code, then Mortgagee shall have
the option, exercisable upon written notice from Mortgagee to Mortgagor, to
conduct and control any such litigation with counsel of Mortgagee's choice.
Mortgagee may proceed in its own name or in the name of Mortgagor in connection
with any such litigation, and Mortgagor agrees to execute any and all powers,
authorizations, consents or other documents required by Mortgagee in connection
36
therewith. Mortgagor shall, upon demand, pay to Mortgagee all costs and expenses
(including attorneys' fees) paid or incurred by Mortgagee in connection with the
prosecution or conduct of any such proceedings. Mortgagor shall not commence any
action, suit, proceeding or case, or file any application or make any motion, in
respect of any Subject Lease in any such case under Bankruptcy Code without the
prior written consent of Mortgagee.
(p) Mortgagor shall, after obtaining knowledge thereof,
promptly notify Mortgagee of any filing by or against the lessor or fee owner of
any leasehold parcel of a petition under the Bankruptcy Code. At Mortgagee's
request, Mortgagor shall promptly deliver to Mortgagee, following receipt,
copies of any and all notices, summonses, pleadings, applications and other
documents received by Mortgagor in connection with any such petition and any
proceedings relating thereto.
(q) If there shall be filed by or against Mortgagor a petition
under the Bankruptcy Code and Mortgagor, as lessee under any Subject Lease,
shall determine to reject such Subject Lease pursuant to Section 365(a) of the
Bankruptcy Code, then Mortgagor shall give Mortgagee not less than twenty days'
prior notice of the date on which Mortgagor shall apply to the Bankruptcy Court
for authority to reject such Subject Lease. Mortgagee shall have the right, but
not the obligation, to serve upon Mortgagor within such twenty day period a
notice stating that Mortgagee demands that Mortgagor assume and assign such
Subject Lease to Mortgagee pursuant to Section 365 of the Bankruptcy Code. If
Mortgagee shall serve upon Mortgagor the notice described in the preceding
sentence, Mortgagor shall not seek to reject such Subject Lease and shall comply
with the demand provided for in the preceding sentence.
(r) Effective upon the entry of an order for relief with
respect to Mortgagor under the Bankruptcy Code, Mortgagor hereby assigns and
transfers to Mortgagee a non-exclusive right to apply to the Bankruptcy Court
under subsection 365(d)(4) of the Bankruptcy Code for an order extending the
period during which any Subject Lease may be rejected or assumed.
37
ARTICLE V
Particular Provisions
This Mortgage is subject to the following provisions relating to the
particular laws of the state wherein the Premises are located:
SECTION 5.01. Applicable Law; Certain Particular Provisions. This
Mortgage shall be governed by and construed in accordance with the internal law
of the State of New York; provided, however, that the provisions of this
Mortgage relating to the creation, perfection and enforcement of the lien and
security interest created by this Mortgage in respect of the Mortgaged Property
and the exercise of each remedy provided hereby, including the power of
foreclosure or power of sale procedures set forth in this Mortgage, shall be
governed by and construed in accordance with the internal law of the state where
the Mortgaged Property is located, and Mortgagor and Mortgagee agrees to submit
to jurisdiction and the laying of venue for any suit on this Mortgage in such
state. The terms and provisions set forth in Appendix A attached hereto are
hereby incorporated by reference as though fully set forth herein. In the event
of any conflict between the terms and provisions contained in the body of this
Mortgage and the terms and provisions set forth in Appendix A, the terms and
provisions set forth in Appendix A shall govern and control.
IN WITNESS WHEREOF, this Mortgage has been duly executed and delivered
to Mortgagee by Mortgagor on the date of the acknowledgment attached hereto.
[ ],
by:
----------------------
Name:
Title:
Seal:
00
XXXXX XX XXX XXXX )
)
COUNTY OF NEW YORK )
I, the undersigned, a Notary Public in and for said County in
said State, do hereby certify that _______________, whose name as of
_______________, an ________ corporation, is signed to the foregoing instrument,
and who is known to me, and known to be such officer, acknowledged before me on
this day that, being informed of the contents of said instrument, (s)he, as such
officer and with full authority, executed the same voluntarily for and as the
act of said corporation.
Given under my hand and official seal this the day of , 199__.
39
Exhibit A
to Mortgage
Legal Description
40
Schedule A
to Mortgage
Leases of Mortgaged Property
41
Appendix A
to Mortgage
Local Law Provisions
42
EXHIBIT B
to Mortgage
Subject Leases
