Recording Office: Xxxxx County, Ohio
OPEN-END MORTGAGE,
SECURITY AGREEMENT, ASSIGNMENT OF RENTS, INCOME AND PROCEEDS
DATED as of August ___, 1999
from
REPUBLIC TECHNOLOGIES INTERNATIONAL, LLC
to
BANKBOSTON, N.A., as Administrative Agent
Notice: This instrument secures, inter alia, obligations which
may provide for:
(a) a variable rate of interest;
(b) future and/or revolving credit advances or
readvances, which when made, shall have the same priority as
advances or readvances made on the date hereof whether or not
(i) any advances or readvances were made on the date hereof
and (ii) any indebtedness is outstanding at the time any
advance or readvance is made; and/or
(c) after-acquired property provisions and secures
future advances pursuant to a line of credit for business or
commercial purposes.
Notwithstanding anything to the contrary contained herein, the
maximum principal indebtedness secured under any contingency
by this instrument shall in no event exceed $425,000,000.00.
Recording Office: Xxxxx County, Ohio
OPEN-END MORTGAGE,
SECURITY AGREEMENT, ASSIGNMENT OF RENTS, INCOME AND PROCEEDS
THE MAXIMUM AMOUNT OF INDEBTEDNESS,
EXCLUSIVE OF INTEREST,
SECURED BY THIS MORTGAGE IS $425,000,000.00
REPUBLIC TECHNOLOGIES INTERNATIONAL, LLC (successor to Republic Engineered
Steels, Inc., a Delaware corporation ("RES"), Bar Technologies Inc., a Delaware
corporation ("BarTech") and USS/Kobe Steel Company, an Ohio general partnership
("USS/Kobe")), a Delaware limited liability company having its principal place
of business at 0000 Xxxxxxx Xxxxxxx, Xxxxx, XX 00000 (the "Mortgagor"), for
consideration paid, grants, with Mortgage Covenants (as defined in 5302.13, Ohio
Revised Code), to BANKBOSTON, N.A., a national banking association having a
principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, as
Administrative and Documentation Agent for itself and the other Banks who are or
may become parties to the Credit Agreement, as defined in the Mortgage Rider
attached hereto as Exhibit C (in such capacity, hereinafter called the
"Mortgagee"), and grants Mortgagee a security interest in, the Property (as such
term is defined and described in the Mortgage Rider attached hereto as Exhibit
C), as of August ___, 1999.
This Mortgage is given upon the Statutory Condition (as defined in
5302.14, Ohio Revised Code), to secure the payment and full performance of the
Obligations (as defined in the Mortgage Rider) and also to secure the
performance of all covenants and agreements herein contained. The Obligations
under the Credit Agreement are due and payable in full on _______, 2004. The
covenants, agreements, conditions, representations and warranties contained in
the Mortgage Rider which is annexed hereto as Exhibit C are incorporated herein
by reference as if fully set out herein; and all references to covenants,
agreements, conditions, representations and warranties contained in this
Mortgage shall be deemed to include the covenants, agreements, conditions,
representations and warranties contained in said Mortgage Rider.
Without limiting the remedies available to the Mortgagee under this
Mortgage, upon the occurrence of an Event of Default (as defined in
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the Mortgage Rider) which provides for acceleration of the Obligations, or upon
abandonment of the Property by the Mortgagor, the Mortgagee, with or without
judicially appointed receiver (which receiver shall be appointed, as matter of
right, regardless of the adequacy of the security for the Obligations then
secured by this Mortgage and may be appointed upon five (5) days prior notice to
Mortgagor), shall be entitled to enter upon, take possession of, and manage the
Property and to collect the rents for the Property, including those past due,
and any rents collected by the Mortgagee or by the receiver shall be applied
first to payment of costs of the management of the Property and the collection
of rents, including, but not limited to, receiver's bonds and reasonable
attorneys' fees, and then to the payment of the Obligations secured by this
Mortgage. Mortgagee's agents, employees or attorneys may be appointed as
receiver. This Mortgage secures payments for taxes, insurance and other payments
for the protection of the Property.
"Statutory Condition" is defined in Section 5302.14 of the Ohio Revised
Code and provides generally that if the Mortgagor pays the principal and
interest secured by this Mortgage, performs the other obligations secured hereby
and the conditions of any prior mortgage, pays all taxes and assessments,
maintains insurance against fire and other hazards, and does not commit or
suffer waste, and if no further advances may be obtained under the Credit
Agreement or any of the other Obligations, and if no amounts remain available
for drawing under any letter of credit or similar Obligation, then this Mortgage
shall be void.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Signed the _____________ day of August, 1999.
REPUBLIC TECHNOLOGIES INTERNATIONAL, LLC
By: ____________________________________
Name: __________________________________
Title: _________________________________
Signed and acknowledged in
the presence of:
___________________________
Witness: __________________
Name: _____________________
___________________________
Witness: __________________
Name: _____________________
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STATE OF _______________
COUNTY OF __________, ss.
On this ______________, 1999, before me appeared ___________________, to
me personally known, or established on the basis of satisfactory evidence to be
the person who signed the within instrument, who, being by me duly sworn, did
say that he is the ___________________________ of REPUBLIC TECHNOLOGIES
INTERNATIONAL, LLC, a Delaware limited liability company, and in his capacity as
such officer acknowledged that said instrument was signed in behalf of said
limited liability company, and was the free act and deed of said limited
liability company.
________________________________________
Notary Public: ____________________
My Commission expires: ___________
This instrument was prepared
by and, after recording, should
be returned to:
ANGELIQUE X.X. XXXXXXXX, ESQ.
XXXXXXX XXXX LLP
000 XXXXXXX XXXXXX
XXXXXX, XXXXXXXXXXXXX 00000
(000) 000-0000
Recording Office: Xxxxx County, Ohio
EXHIBIT A
DESCRIPTION OF PREMISES
Recording Office: Xxxxx County, Ohio
EXHIBIT B
PERMITTED ENCUMBRANCES
Recording Office: Xxxxx County, Ohio
EXHIBIT C
MORTGAGE RIDER
Mortgage Rider attached to and made a part of that certain Open-End
Mortgage, Security Agreement, Assignment of Rents, Income and Proceeds, dated as
of August ___, 1999 (the "Mortgage") from REPUBLIC TECHNOLOGIES INTERNATIONAL,
LLC (successor to Republic Engineered Steels, Inc., a Delaware corporation
("RES"), Bar Technologies Inc., a Delaware corporation ("BarTech") and USS/Kobe
Steel Company, an Ohio general partnership ("USS/Kobe")), a Delaware limited
liability company having its principal place of business at 0000 Xxxxxxx
Xxxxxxx, Xxxxx, XX 00000 (the "Mortgagor"), to BankBoston, N.A., a national
banking association, having its principal office at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, as Administrative and Agent for itself and the other Banks
who are or may become parties to the Credit Agreement (in such capacity, the
"Mortgagee").
With intent to be legally bound, Mortgagor and Mortgagee agree that the
following terms and conditions are herein made a part of the Mortgage as an
integral part thereof. The provisions of this Mortgage Rider are supplementary
to the provisions of the Mortgage to which this Mortgage Rider is attached and
to the extent any provision of this Mortgage Rider deals with the same subject
matter as similar provisions of the Mortgage, the provisions hereof are to be
construed to expand such similar provisions and not to limit the general
application of any general provision contained in the Mortgage. To the extent
any provision of this Mortgage Rider conflicts with the Mortgage, the language
in the Mortgage shall control. In case any one or more provisions of this
Mortgage Rider may be found to be invalid or unenforceable for any reason or in
any respect, such invalidity or unenforceability shall not limit or impair
enforcement of any other provisions of this Mortgage Rider. Unless otherwise
defined herein, capitalized terms used in the Mortgage and this Mortgage Rider
shall have meanings ascribed to them in the Credit Agreement.
1. REPRESENTATIONS AND WARRANTIES.
The Mortgagor hereby represents, covenants and warrants to Mortgagee as
follows.
1.1. Title to Property. The Mortgagor warrants its title to the Property,
subject only to the Permitted Encumbrances.
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1.2. Authority; No Encumbrances. The Property is now free and clear of all
encumbrances whatsoever except Permitted Encumbrances, and the Mortgagor has
good right and lawful authority to mortgage and convey the same in the manner
and form hereby mortgaged and conveyed.
1.3. Governmental Filings. Other than the recording of this Mortgage and
the filing of financing statements with the appropriate recording and filing
offices in the state where the Property is located, no approval, authorization
or other action by, or filing with, any federal, state, or local commission,
board or agency, is required under existing law in connection with the execution
and delivery by Mortgagor of this Mortgage.
1.4. No Leases. There are presently in effect no leases of the Property or
any part thereof.
1.5. Absence of Litigation. There are no actions, suits, proceedings or
investigations, including, without limitation, condemnation and eminent domain
proceedings, pending or, to the best of Mortgagor's knowledge, threatened,
against or affecting the Property, or which may involve or affect the validity
of this Mortgage, and Mortgagor is not in default with respect to any order,
writ, injunction, decree or demand of any court or any administrative agency or
governmental authority affecting the Property or the use thereof.
1.6. Compliance with Law. The Property is in compliance with all
applicable laws and governmental regulations, including but not limited to those
governing zoning, land use, subdivision control, health, safety, fire protection
and protection of the environment.
2. CERTAIN COVENANTS AND CONDITIONS.
The Mortgagor covenants and agrees as follows.
2.1. Governmental Charges. Mortgagor shall pay before the same become
delinquent all taxes, charges, sewer use fees, water rates and assessments of
every name and nature, whether or not assessed against Mortgagor, if applicable
or related to the Property, or any interest therein, or applicable or related to
any of the Obligations, which, if unpaid, might by law become a lien or charge
upon all or any part of the Property; provided, however, that so long as no
distraint, foreclosure sale or other levy upon or transfer with respect to the
Property or any part thereof shall have been effected or threatened, Mortgagor
shall not be required to pay any such taxes, charges, fees, rates and
assessments by reason of this Section 2.1 if (i) the amount, applicability or
validity thereof is currently being contested by Mortgagor in
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good faith by appropriate legal proceedings, (ii) such contest operates to
suspend enforcement of compliance with and/or collection thereof, (iii)
Mortgagor shall have set aside on its books reserves (segregated to the extent
required by sound accounting principles and practices) reasonably deemed by
Mortgagee to be adequate with respect thereto, and (iv) if requested by
Mortgagee, Mortgagor shall provide to Mortgagee a bond or other security of such
nature and in such amount as Mortgagee deems sufficient as security for payment
thereof.
2.2. Provision for Payment of Governmental Charges and Other Obligations.
To assure the payment of all taxes, charges, sewer use fees, water rates, ground
rents and assessments of every name and nature, or any other obligations which
may have or acquire priority over this Mortgage, and which are assessed or
payable with reference to the Property, upon the occurrence and during the
continuance of an Event of Default, Mortgagor, if so requested by Mortgagee,
shall deposit with Mortgagee, on the first day of each month, a sum determined
by Mortgagee to be sufficient to provide, in the aggregate, a fund adequate to
pay any such amounts at least ten (10) days before the same become delinquent;
and whenever Mortgagee determines sums accumulated under the provisions of this
Section 2.2 to be insufficient to meet the obligation for which such deposits
were made, Mortgagor shall pay, on the demand of Mortgagee, any amount required
to cover the deficiency therein. Every such deposit may, at the option of
Mortgagee, be applied directly against the obligation with reference to which it
was made, or, to the fullest extent permissible according to law, any other
obligation of Mortgagor secured hereby. Such deposits may, to the fullest extent
permitted by law, be commingled with other assets of Mortgagee and, in the
discretion of Mortgagee, invested by Mortgagee for its own account, without any
obligation to pay income from such investment, or interest on such deposits, to
Mortgagor, or to account to Mortgagor for such income in any manner.
2.3. Maintenance of Property; Alterations. Mortgagor shall keep and
maintain the Property in good condition, repair and working order, damage from
casualty expressly not excepted, shall make all such needful and proper repairs,
replacements, additions and improvements thereto as shall be necessary for the
proper conduct of its business thereon, and shall not permit or commit waste on
the Property. Mortgagor shall not permit removal or alteration of anything which
constitutes a part of the Property without the consent of Mortgagee except that
Mortgagor may remove personal property or fixtures which have become obsolete,
provided that Mortgagor shall substitute personal property or fixtures of equal
utility and equal or greater value for the items so removed. The Mortgagor shall
have
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the right at all times to make or permit such alterations, improvements or new
construction, structural or otherwise, (herein sometimes called collectively
"alterations"), of or on the Property to be made in all cases subject to the
following conditions:
(a) all work done in connection with any alterations shall be done
promptly and in a first-class and workmanlike manner;
(b) the cost of all alterations shall be paid promptly so as to keep
the Property free of all liens;
(c) no alterations of any kind shall be made to the Property which
shall change the use or reduce the value of the Property in any respect;
and
(d) no alteration involving an estimated cost of materials and
construction labor as estimated by a licensed architect or contractor
reasonably approved by the Mortgagor in excess of $1,000,000 shall be
undertaken without the prior written consent of Mortgagee, which shall not
be unreasonably withheld or delayed.
Mortgagor shall permit Mortgagee to enter the Property at any reasonable time to
determine whether Mortgagor is in compliance with its obligations under this
Mortgage. All construction on the Property shall comply with, and each and every
part of the Property shall be maintained and used in accordance with, all
applicable federal, state and local laws and governmental regulations, and any
lawful private restrictions or other requirements or provisions, relating to the
maintenance or use thereof.
2.4. Insurance. The Mortgagor agrees, at Mortgagor's sole cost and
expense, to keep the Property insured at all times throughout the term of this
Mortgage with policies of insurance as follows:
(a) property or physical hazard insurance on an "all risks" basis,
with broad form flood and earthquake coverages, and building code,
valuable papers, extra expenses, extended period of indemnity and
electronic data processing coverages, with a full replacement cost
endorsement (including builder's risk during any period or periods of time
that construction or remodeling is being performed on the Property) and an
"agreed amount" clause, in an amount equal to 100% of the full replacement
cost of all improvements (excluding only the reasonable value of footings
and foundations) and Mortgagor's contents therein, such amount to be
determined annually by an insurer or qualified appraiser selected and paid
for by Mortgagor and acceptable
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to Mortgagee, and in any event in an amount sufficient to prevent
Mortgagor from incurring any coinsurance liability; and
(b) if at any time the Property or any portion thereof is located in
a "Flood Hazard Area" pursuant to the Flood Disaster Protection Act of
1973 (or any successor thereto), flood insurance in such total amount as
Mortgagee shall reasonably require from time to time (or the maximum
amount available, if less); and
(c) insurance with respect to other insurable risks and coverages
relating to the Property (including, without limitation, commercial
general liability insurance (broad form), boiler insurance, builder's risk
insurance and worker's compensation insurance) in such amounts and
containing such terms and conditions as Mortgagee may reasonably require
from time to time.
The Mortgagor shall deposit certified copies of all insurance policies (or
certificates thereof acceptable to Mortgagee) providing coverage applicable to
the Property, whether or not required by this Mortgage, with Mortgagee forthwith
after the binding thereof, and shall deliver to Mortgagee new policies (or
certificates acceptable to Mortgagee) for any insurance about to expire at least
thirty (30) days before such expiration. All such insurance policies (other than
liability policies) shall be first payable in case of loss to Mortgagee by means
of a standard non-contributory mortgagee clause, shall be written by such
companies, on such terms, in such form and for such periods and amounts as
Mortgagee shall from time to time approve, shall be primary and without right of
contribution from other insurance which may be available, shall waive any right
of setoff, counterclaim, subrogation, or any deduction in respect of any
liability of Mortgagor and Mortgagee, shall provide that with respect to
Mortgagee, the insurance shall not be invalidated by any action or inaction by
Mortgagor including without limitation any representations made by Mortgagor in
the procurement of such insurance, and shall provide that such policies shall
not be canceled or amended without at least thirty (30) days prior written
notice to Mortgagee. All liability insurance policies shall include Mortgagee as
an additional insured. All such insurance policies shall provide that all losses
thereunder shall be adjusted by (but not disbursed to) Mortgagor, so long as no
Event of Default has occurred and is continuing provided, however, that in no
event shall Mortgagor approve or consent to any final adjustment in an amount
exceeding _______________________________________ dollars ($_____________)
without obtaining Mortgagee's prior written approval of the amount of such
adjustment, and after an Event of Default has occurred and so long as any such
Event of Default continues, Mortgagor shall not consent to a final adjustment in
any amount without obtaining Mortgagee's prior written
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approval. After the occurrence of an Event of Default, Mortgagor hereby
grants Mortgagee full power and authority as irrevocable attorney-in-fact of
Mortgagor to cancel or transfer such insurance, to collect and endorse any
checks issued in the name of Mortgagor and to retain any premium and to apply
the same to the Obligations secured hereby.
2.5. Casualties and Takings. All proceeds of any property or hazard
insurance or awards of damages on account of any taking or condemnation for
public use of or injury to the Property shall (a) so long as no Default or Event
of Default has occurred and is continuing, be disbursed to the Mortgagor and
applied by Mortgagor in the manner provided in Section 3.2(b). of the Credit
Agreement, and (b) in all other circumstances, be held by Mortgagee as cash
collateral for the Obligations. The Mortgagee may, at its sole option, disburse
from time to time all or any part of such proceeds so held as cash collateral,
upon such terms and conditions as Mortgagee may reasonably prescribe, for direct
application by Mortgagor solely to the repair or replacement of the Property or
portion thereof so damaged or destroyed, or Mortgagee may apply all or any part
of such proceeds to the Obligations.
2.6. Notice of Condemnation. Mortgagor, immediately upon obtaining
knowledge of the institution of any proceeding for the condemnation or
requisition of the Property or any portion thereof, shall notify Mortgagee of
the pendency of such proceeding. The Mortgagee may participate in such
proceeding, and Mortgagor from time to time shall deliver to Mortgagee all
instruments requested by Mortgagee to permit such participation.
2.7. Leases; Assignments; Subordination. Mortgagor shall not lease the
Property or any part thereof without the prior written consent of Mortgagee. If
Mortgagor shall enter into a lease with the consent of Mortgagee, Mortgagor
shall faithfully keep, observe and satisfy all the obligations on the part of
the lessor to be kept, performed and satisfied under every lease from time to
time in force with reference to the Property, and shall not alter or terminate
any such lease, or any guarantee of such lease, except in the ordinary course of
business, or accept any rentals for more than one month in advance. Mortgagor
hereby assigns to Mortgagee all rents and profits under any and all leases of
the Property, provided, however, that Mortgagor shall be entitled to retain such
rents and profits until an Event of Default shall have occurred. At any time on
notice from Mortgagee, Mortgagor shall submit to Mortgagee for examination all
such leases and on the demand of Mortgagee, shall execute and deliver a separate
instrument collaterally assigning any or all such leases, or the rents and
profits thereof, in form satisfactory to Mortgagee. The Mortgagee shall have the
right, by the execution of suitable written instruments from time to time, to
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subordinate this Mortgage, and the rights of Mortgagee hereunder, to any lease
or leases from time to time in force with reference to the Property, and, on the
execution of any such instrument, this Mortgage shall be subordinate to the
lease for which such subordination is applicable with the same force and effect
as if such lease had been executed and delivered, and a notice thereof recorded
to the extent required to give notice to third persons, prior to the execution,
delivery and recording of this Mortgage.
2.8. Prior Mortgages. If this Mortgage, by its terms, is now, or at any
time hereafter, becomes subject or subordinate to a prior Mortgage or mortgage,
Mortgagor shall fully perform its obligations under such prior Mortgage or
mortgage and shall not, without the consent of Mortgagee, agree to the
modification, amendment or extension of the terms or conditions of such prior
Mortgage or mortgage. Nothing contained in this Section 2.8 is intended, nor
shall it be deemed, to constitute consent by Mortgagee to a subordination of the
lien of this Mortgage.
2.9. Encumbrances. Mortgagor shall not create or permit to be created or
permit to exist any encumbrance on the Property (other than any lien for
property taxes not yet due and payable and the Permitted Encumbrances) even if
such encumbrance is inferior to this Mortgage, without the prior express written
consent of Mortgagee.
2.10. Transfers of Ownership. Mortgagor shall not sell or permit any
transfer of any interest in the Property, or any part thereof, without the prior
express written consent of Mortgagee, except as expressly permitted by the
Credit Agreement.
2.11. Priority of Lien; After-Acquired Property. This Mortgage is and will
be maintained as a valid Mortgage lien on the Property subject only to the
Permitted Encumbrances. All property of every kind acquired by Mortgagor after
the date hereof which, by the terms hereof, is required or intended to be
subjected to the lien of this Mortgage shall, immediately upon the acquisition
thereof by Mortgagor, and without any further mortgage, conveyance, assignment
or transfer, become subject to the lien of this Mortgage. The Mortgagor will do,
execute, acknowledge and deliver all and every such further conveyances,
mortgages, and assurances as Mortgagee shall reasonably require for
accomplishing the purposes of this Mortgage. If any action or proceeding shall
be instituted to recover possession of the Property or for the foreclosure of
any other mortgage or Mortgage or for any other purpose affecting the Property
or this Mortgage, Mortgagor will immediately, upon service thereof on or by
Mortgagor, deliver to Mortgagee a true copy of each precept, petition, summons,
complaint, notice of motion,
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order to show cause, and all other process, pleadings and papers, however
designated, served in any such action or proceeding.
2.12. Fixtures and Equipment; Financing Statement. This Mortgage
constitutes a security agreement under the Uniform Commercial Code, and
Mortgagor hereby grants to Mortgagee to secure the payment and performance of
the Obligations and also to secure the performance of all agreements and
covenants herein contained, a security interest in all fixtures, Building
Service Equipment and any other property included in the Property, now owned or
hereafter acquired by Mortgagor, which might otherwise be deemed "personal
property" (and all accessions thereto and the proceeds thereof). Some of such
"personal property" is now or is to become fixtures on the Premises. Mortgagor
covenants and agrees that, upon the subsequent acquisition of fixtures, Building
Service Equipment or such personal property included in the Property, it will
provide to Mortgagee such further assurances as may be required by Mortgagee to
establish Mortgagee's first and prior security interest in such fixtures,
Building Service Equipment and property. IT IS INTENDED BY MORTGAGOR AND
MORTGAGEE THAT THIS MORTGAGE BE EFFECTIVE AS A FINANCING STATEMENT FILED WITH
THE REAL ESTATE RECORDS AS A FIXTURE FILING. For this purpose, Mortgagor is the
"debtor" and Mortgagee is the "secured party." A mailing address for the
Mortgagor and an address of Mortgagee from which information concerning the
security interest may be obtained are set forth in the introductory paragraph of
this Mortgage. Mortgagor shall execute, deliver and cause to be recorded and
filed from time to time with all necessary public offices, at Mortgagor's sole
cost and expense, continuances and such other instruments as will maintain
Mortgagee's priority of security in all fixtures, Building Service Equipment and
other personal property included in the Property. The remedies for any violation
of the covenants, terms and conditions of the security agreement herein
contained shall be (i) as prescribed herein, or (ii) as prescribed by general
law, or (iii) as prescribed by the specific statutory consequences now or
hereafter enacted and specified in said Uniform Commercial Code, all at
Mortgagee's sole election.
2.13. Environmental Assessments. At any time after an Event of Default
shall have occurred and be continuing hereunder, or, whether or not an Event of
Default shall have occurred, at any time after Mortgagee shall receive notice of
a Release or threatened Release of Hazardous Substances from Mortgagor, or shall
have received notice from any other source deemed reliable by Mortgagee that a
Release of Hazardous Substances may have occurred, Mortgagee may at its election
after five (5) days prior notice to
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Mortgagor obtain one or more environmental assessments of the Property prepared
by a geohydrologist, an independent engineer or other qualified consultant or
expert approved by Mortgagee evaluating or confirming (i) whether any Hazardous
Substances are present in the soil or water at or adjacent to the Property, and
(ii) whether the use and operation of the Property comply with all applicable
Environmental Laws (as hereinafter defined). Environmental assessments may
include detailed visual inspections of the Property including, without
limitation, any and all storage areas, storage tanks, drains, dry xxxxx and
leaching areas, and the taking of soil samples, surface water samples and ground
water samples, as well as such other investigations or analyses as are necessary
or appropriate for a complete determination of the compliance of the Property
and the use and operation thereof with all applicable Environmental Laws. All
such environmental assessments shall be at the sole cost and expense of
Mortgagor.
3. DEFAULT AND REMEDIES.
3.1. Default; Acceleration of Obligations. If an Event of Default shall
occur and be continuing then Mortgagee may exercise the remedies provided under
this Mortgage, under the Credit Agreement, under any and all other instruments
and documents providing security for the Obligations, or under the laws of the
state where the Property is situated, or any one or more of such remedies.
3.2. Remedies Cumulative. No remedy herein conferred on Mortgagee is
intended to be exclusive of any other remedy and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing.
3.3. Right of Mortgagee to Cure an Event of Default. If an Event of
Default shall occur and be continuing, Mortgagee shall have the right, but
without any obligation so to do, to cure such default for the account of
Mortgagor and to make any payment or take any action necessary to effect such
cure. Without limiting the generality of the foregoing, Mortgagor hereby
authorizes Mortgagee to pay all taxes, sewer use fees, water rates and
assessments, with interest, costs and charges accrued thereon, which may at any
time be a lien upon the Property, or any part thereof; to pay the premiums for
any insurance required hereunder; to incur and pay reasonable expenses in
protecting its rights hereunder and the security hereby granted; and to pay any
balance due under any security agreement on any fixtures and equipment included
as a part of the Property; and the payment of all amounts so incurred shall be
secured hereby as fully and effectually as any other obligation of Mortgagor
secured hereby. If Mortgagee shall make any
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payment or take action in accordance with this Section 3.3, Mortgagee will give
to Mortgagor written notice of the making of any such payment or the taking of
any such action. In any such event, Mortgagee and any person designated by
Mortgagee shall have, and is hereby granted, the right to enter upon the
Property at reasonable times and from any time and from time to time for the
purpose of taking any such action, and all monies expended by Mortgagee in
connection therewith (including, but not limited to, reasonable legal expenses
and disbursements), together with interest thereon at an annual rate of interest
equal to the rate applicable to overdue payments under the Credit Agreement (or
the highest rate permitted by law, whichever shall be less), from the date of
each such expenditure, shall be paid by Mortgagor to Mortgagee forthwith upon
demand by Mortgagee, and shall be secured by this Mortgage, and Mortgagee shall
have, in addition to any other right or remedy of Mortgagee, the same rights and
remedies in the event of non-payment of any such sums by Mortgagor as in the
case of a default by Mortgagor in the payment of any installment of principal or
interest due and payable under the Credit Agreement.
3.4. Operation of Property. Upon the occurrence of an Event of Default,
Mortgagee may hold, lease, manage, operate or otherwise use or permit the use of
the Property, either itself or by other persons, firms or entities, in such
manner, for such time and upon such other terms as Mortgagee may deem to be
prudent and reasonable under the circumstances (making such repairs,
alterations, additions and improvements thereto and taking any and all other
action with reference thereto, from time to time, as Mortgagee shall deem
necessary or desirable), and apply all rents, profits and other amounts
collected in connection therewith in accordance with the other provisions of
this Mortgage.
3.5. Receiver. Upon the occurrence and during the continuance of an Event
of Default, or any actual or threatened waste to all or any part of the
Property, or at any time while a suit is pending to foreclose or reform this
Mortgage or to enforce any provision hereof, Mortgagee shall have the right to
apply without notice for the appointment of a receiver of all or any part of the
Property and the rents and profits thereof, and such receiver shall have all the
broad and effective functions and powers anywhere entrusted by a court to a
receiver. Mortgagee shall be entitled to the appointment of said receiver
forthwith as a matter of absolute right, without regard to the adequacy or
inadequacy of the value of the Property or the solvency or insolvency of
Mortgagor or any other defendant, and Mortgagor hereby waives any right to
object to the appointment of such receiver and expressly consents thereto. The
income, profits, rents, issues and revenues from the
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Property shall be applied by such receiver according to the provisions of this
Mortgage and the practice of the court appointing such receiver.
3.6. Certain Terms of Foreclosure Sale. At any foreclosure sale, any
combination, or all, of the Property or security given to secure the
indebtedness secured hereby, may be offered for sale for one total price, and
the proceeds of such sale accounted for in one account without distinction
between the items of security or without assigning to them any proportion of
such proceeds, Mortgagor hereby waiving the application of any doctrine of
marshaling; and, in case Mortgagee, in the exercise of the power of sale herein
given, elects to sell in parts or parcels, said sales may be held from time to
time, and the power shall not be fully executed until all of the property or
security not previously sold shall have been sold.
3.7. Uniform Commercial Code. If the provisions of the Uniform Commercial
Code are applicable to any property or security given to secure the indebtedness
secured hereby which is sold in combination with or as a part of the Property,
or any part thereof, at one or more foreclosure sales, any notice required under
such provisions shall be fully satisfied by the notice given in execution of the
power of sale or other provision in accordance with which the sale of real
property pursuant to such foreclosure is held with respect to the Property or
any part thereof.
3.8. Other Mortgage Instruments. The Obligations secured by this Mortgage
may also be secured by various other deeds of trust and/or mortgages or both
(collectively, including this Mortgage, the "Mortgage Instruments") conveying or
encumbering real estate in the state in which the Property is situated and in
other jurisdictions. An Event of Default under the Credit Agreement shall be an
Event of Default under all Mortgage Instruments. Except as may be expressly
stated in this Mortgage or in such other Mortgage Instruments, all the property
conveyed or encumbered by the Mortgage Instruments is security for the
Obligations secured by the Mortgage Instruments without allocation of any one or
more of the parcels or properties serving as security under the Mortgage
Instruments to any part of the Obligations. The Mortgagee may act at the same
time or at different times to pursue a remedy or remedies under the Mortgage
Instruments or under any of them by proceedings appropriate to the state in
which the property serving as security lies, and no such action shall stay or
bar enforcement, or be construed as a waiver of, any remedy of Mortgagee under
any other instrument in the same state or jurisdiction or in any other state or
jurisdiction.
3.9. Rights Cumulative. Each right, power and remedy conferred upon
Mortgagee by this Mortgage, the Credit Agreement and by all other
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documents evidencing or securing the Obligations and conferred by law or in
equity is cumulative and in addition to every other right, power and remedy
herein or therein set forth or otherwise so existing, may be exercised from time
to time, as often, and in such order, as may be deemed expedient by Mortgagee,
and the exercise or the beginning of the exercise of one right, power or remedy
shall not be a waiver of the right to exercise at the same time or thereafter
any other right, power or remedy, and no delay or omission of, or discontinuance
by, Mortgagee in the exercise of any right, power or remedy accruing hereunder
or arising otherwise shall impair any such right, power or remedy, or be
construed to be a waiver of any default or acquiescence therein. To constitute a
waiver, there must be a writing signed by an officer of Mortgagee and directed
to Mortgagor, specifying the waiver.
In case Mortgagee shall have proceeded to enforce any right or remedy
under this Mortgage or the Credit Agreement by foreclosure, entry or otherwise,
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been 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. In the event of a breach or
default under this Mortgage or under the Credit Agreement or any other document
evidencing or securing the Obligations, Mortgagor agrees to pay and to indemnify
and hold harmless Mortgagee and the Banks for all reasonable expenses,
attorneys' fees, taxes and other court costs occasioned by such breach or
default.
4. DEFINITIONS.
The following terms as used herein shall have the following meanings:
"Banks" shall mean BankBoston, N.A. and such other lending institutions
which are or may become parties to the Credit Agreement.
"Borrower" shall mean Republic Technologies International, LLC, a Delaware
limited liability company.
"Building Service Equipment" shall mean all apparatus, fixtures and
articles of personal property owned by Mortgagor now or hereafter attached to or
used or procured for use in connection with the operation or maintenance of any
building, structure or other improvement located on or included in the Property
(except apparatus, fixtures or articles of personal property belonging to
lessees or other occupants of such building or to persons other than Mortgagor
unless the same be abandoned by any such
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lessee or other occupant or person), together with any and all replacements
thereof and additions thereto.
"Credit Agreement" shall mean that certain Revolving Credit Agreement
dated as of August ___, 1999, by and among the Borrower, the Banks and the
Mortgagee, pursuant to which the Banks have agreed (a) to make a revolving
credit loan to the Borrower, and to issue letters of credit for the account of
the Borrower, in an aggregate outstanding principal amount of up to and
including $425,000,000.00, as such Revolving Credit Agreement is originally
executed, or if varied, supplemented, amended or restated from time to time, as
so varied, supplemented, amended or restated.
"Default" shall mean any Default under the Credit Agreement (as therein
defined).
"Event of Default" shall mean any Event of Default under the Credit
Agreement (as therein defined).
"Hazardous Substances" shall have the meaning assigned to it is Section
7.18(b) of the Credit Agreement.
"Letter of Credit" shall mean a standby or documentary letter credit in
such form as may be requested from time to time by the Borrower and agreed to by
the Agent (as defined in the Credit Agreement), all as further defined in
Section 4.1 of the Credit Agreement.
"Letter of Credit Application" shall mean a letter of credit application
on the customary form of Mortgagee.
"Loan Documents" shall mean the Credit Agreement, the Notes, the Letter of
Credit Applications, the Letters of Credit, the Intercreditor Agreement (as
defined in the Credit Agreement), and the Security Documents (as defined in the
Credit Agreement).
"Loans" shall mean the Revolving Credit Loans (as defined in the Credit
Agreement).
"Mortgage" shall have the meaning assigned to it in the recitals to this
Mortgage Rider.
"Mortgage Instruments" shall have the meaning assigned to it in Section
3.8 hereof.
"Mortgagee" shall mean the grantee or mortgagee named at the beginning of
this instrument, any subsequent holder or holders of this
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Mortgage or the indebtedness secured hereby, or any state or county official
engaged in any part of the enforcement of the lien of this Mortgage, and their
respective successors and assigns. The word "Mortgagee" as used in this Mortgage
Rider shall also mean, if this instrument forms part of a deed of trust, the
beneficiary of this Mortgage Instrument and any subsequent owner of the
beneficiary's interest in the Property or this Mortgage Instrument.
"Mortgagor" shall mean the person or persons named at the beginning of
this instrument as Mortgagor, and any subsequent owner or owners of the equity
of redemption of the Property.
"Note(s)" shall mean the Revolving Credit Notes (as defined in the Credit
Agreement).
"Obligations" shall mean all indebtedness, obligations and liabilities of
any of the Borrower and its Subsidiaries, including the Mortgagor, to any of the
Banks and the Mortgagee individually or collectively, existing on the date of
the Credit Agreement or arising thereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, arising or incurred under the Credit Agreement or any of the other
Loan Documents or in respect of any of the Loans made or Reimbursement
Obligations incurred or any of the Notes, Letter of Credit Application, Letter
of Credit, Rate Protection Agreements entered into with any of the Banks, or any
documents, agreements or instruments executed in connection therewith, or other
instruments at any time evidencing any thereof.
"Permitted Encumbrances" shall mean the encumbrances listed on Exhibit B
to this Mortgage and incorporated herein by reference as if fully set out
herein.
"Premises" shall mean all that certain tract or parcel of land more
particularly described and set forth in Exhibit A attached to this Mortgage and
made a part hereof.
"Property" shall mean all of the described property, rights, privileges,
interests and franchises more particularly described in paragraphs (a) through
(i) below:
(a) the Premises;
(b) All and singular the tenements, hereditaments, easements,
appurtenances, passages (and all waters, water courses and riparian
rights, if any), pipes, conduits, electrical and other utility lines,
other
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rights, liberties and privileges thereof or in any way now or hereafter
appertaining to the Premises, including any other claim at law or in
equity as well as any after acquired title, franchise or license and the
reversion and reversions and remainder and remainders thereof, and all of
the estate, right, title, claim or demand whatsoever of Mortgagor therein
and in the streets, ways and areas adjacent thereto;
(c) All buildings and other improvements of every kind and
description now or hereafter erected or placed on the Premises or any part
thereof owned by the Mortgagor, and all of the right, title and interest
of Mortgagor in and to all materials intended for construction,
reconstruction, alteration and repairs of such improvements now or
hereafter erected thereon, all of which materials shall be deemed to be
included within the Premises immediately upon the delivery thereof to the
Premises, and all fixtures, Building Service Equipment, and all renewals
or replacements thereof or articles in substitution therefor; it being
mutually agreed that all the aforesaid property owned or to be owned by
Mortgagor and placed by it on the Premises and such buildings and
improvements shall, so far as permitted by law, be deemed to be affixed
thereto and covered by this Mortgage;
(d) All of the estate, right, title and interest now owned or
hereafter acquired by Mortgagor in and to any and all sidewalks and
alleys, and all strips and gores of land, adjacent to or in connection
with the Premises;
(e) All present and future leases and licenses of the Premises or of
space in the buildings and improvements now or hereafter erected on the
Premises (collectively "leases", and individually "lease") and the rents,
revenues, income, issues and profits thereunder subject, however, to the
right of Mortgagor to receive and use the same and to exercise all rights
and privileges as landlord under all of the leases until an Event of
Default shall have occurred and be continuing under this Mortgage,
together with all the rights and privileges of the Mortgagor as landlord
thereunder;
(f) All unearned premiums accrued, accruing or to accrue under any
and all insurance policies now or hereafter obtained by the Mortgagor
pursuant to the provisions of the Mortgage;
(g) All proceeds of the conversion, voluntary or involuntary, of any
of the foregoing into cash or liquidated claims, including, but without
limitation, proceeds of insurance provided for in this Mortgage
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and proceeds of condemnation awards and awards for restriction of access
to, or change of grade of, streets;
(h) All transferable building service, building maintenance,
construction, management and other similar agreements and contracts,
written or oral, express or implied, now or hereafter entered into arising
or in any manner related to the construction, design, improvement, use,
operation, occupation, enjoyment, sale, conversion or other disposition
(voluntary or involuntary) of the Premises, or the buildings and
improvements now or hereafter located thereon, or any other interest in
the Premises, or any combination thereof, including all property
management agreements, sales contracts, contract deposits, xxxxxxx money
deposits, prepaid items and payments due and to become due thereunder, and
further including all payment and performance bonds, construction
guaranties, warranties, construction contracts, architects agreements,
general contract agreements, design agreements, engineering agreements,
technical service agreements, architectural plans and specifications,
sewer and water and other utility agreements, permits, approvals,
licenses, building permits, service contracts, advertising contracts,
purchase orders and equipment leases; and
(i) All proceeds and products of the foregoing of every type.
"Reimbursement Obligation" shall mean the Borrower's obligation to
reimburse Mortgagee and the Banks on account of any drawing under any Letter of
Credit as provided in Section 5.2 of the Credit Agreement.
"Release" shall have the meaning specified in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9601
et seq. ("CERCLA") and the term "Disposal" (or "disposed") shall have the
meaning specified in the Resource Conservation and Recovery Act of 1976, 42
U.S.C. 6901 et seq. ("RCRA") and regulations promulgated thereunder; provided,
in the event either CERCLA or RCRA is amended so as to broaden the meaning of
any term defined thereby, such broader meaning shall apply as of the effective
date of such amendment and provided further, to the extent that the laws of the
state where the Property is located establish a meaning for "release" or
"disposal" which is broader than specified in either CERCLA or RCRA, such
broader meaning shall apply.
5. MISCELLANEOUS.
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5.1. Notices. All notices, requests and other communications hereunder
shall be made in writing and shall be given in the manner set forth in the
Credit Agreement.
5.2. Successors and Assigns; Joint and Several Liability; Partial
Invalidity. All the covenants and agreements of Mortgagor herein contained shall
be binding upon Mortgagor and the successors and assigns of Mortgagor. In case
any one or more of the provisions of this Mortgage may be found to be invalid,
or unenforceable for any reason or in any respect, such invalidity or
unenforceability shall not limit or impair enforcement of any other provision
thereof.
5.3. Future Advances; Revolving Credit Advances. This Mortgage shall
secure, and constitute a lien upon the Property for, all future advances and
revolving credit advances or readvances made by Mortgagee or any of the Banks
under the Credit Agreement at any time or times hereafter, whether or not any
reference is made to this Mortgage at the time such advances are made, and all
such sums shall be equally secured with and, to the extent permitted by law,
have the same priority as the Obligations outstanding as of the date hereof. A
portion of the indebtedness evidenced by the Notes is revolving credit
indebtedness. The Credit Agreement provides that the principal sum of
$425,000,000.00 may be advanced, repaid and readvanced from time to time in
accordance with the terms and provisions of the Credit Agreement. Accordingly,
the aggregate principal advances during the term of the Credit Agreement may
exceed $425,000,000.00; provided, however, at no time shall the aggregate
outstanding principal balance exceed $425,000,000.00, except for advances made
to protect the lien of this Mortgage as hereinabove provided. Mortgagor agrees
that if the outstanding balance of the Credit Agreement, principal and interest,
is ever repaid to zero (despite any express prohibition to the contrary
contained in the Credit Agreement), the lien and security interest of this
Mortgage shall not be deemed released or extinguished by operation of law or
implied intent of the parties. This Mortgage shall remain in full force and
effect as to any further advances or readvances under the Credit Agreement made
after any such zero balance until the Obligations are paid in full, all
agreements to make further advances and readvances have been terminated and this
Mortgage has been canceled of record. Mortgagor waives the operation of any
applicable statute, case law or regulation having a contrary effect. The
outstanding principal amount of the indebtedness under the Credit Agreement will
bear interest at a variable rate or rates calculated in accordance with the
terms and conditions of the Credit Agreement. The Credit Agreement is hereby
incorporated into this Mortgage with regard to all references made to it in this
Mortgage.
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5.4. Modification. No change, amendment, modification, cancellation or
discharge of this Mortgage, or any part hereof, shall be valid unless in writing
and signed by the parties hereto or their respective successors and assigns.
5.5. Captions. Section headings are inserted for convenience of reference
only, do not form part of this Mortgage and shall be disregarded for purposes of
the interpretation of the terms of this Mortgage.
5.6. Governing Law. The Credit Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts, but
this Mortgage and the perfection and enforcement of the lien and security
interest hereunder (and any financing statement filed in connection herewith)
shall be governed by and construed and enforced in accordance with the laws of
the state in which the Property is situated.
