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Exhibit 10(i)
COMBINATION MORTGAGE, ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FINANCING STATEMENT
from
TELEX COMMUNICATIONS, INC., Mortgagor
to
THE CHASE MANHATTAN BANK, as Administrative Agent, Mortgagee
DATED AS OF MAY 6, 1997
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COMBINATION MORTGAGE, ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FINANCING STATEMENT
THIS COMBINATION MORTGAGE, ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FINANCING STATEMENT, dated as of May 6, 1997, is made by TELEX
COMMUNICATIONS, INC., a Delaware corporation ("MORTGAGOR"), whose address is
0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: General
Counsel, to THE CHASE MANHATTAN BANK, a New York banking corporation whose
address is 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Xxxxx Xxxxxxx,
as Administrative Agent (in such capacity, "MORTGAGEE") for the several banks
and other financial institutions (the "LENDERS") from time to time parties to
the Credit Agreement dated as of the date hereof, (as the same may be amended,
supplemented, waived or otherwise modified from time to time the "CREDIT
AGREEMENT") among GST Acquisition Corp., a Delaware corporation, Xxxxxx Xxxxxxx
Senior Funding, Inc., as documentation agent for the lenders thereunder, the
Lenders and Mortgagee. References to this "MORTGAGE" shall mean this instrument
and any and all renewals, modifications, amendments, supplements, extensions,
consolidations, substitutions, spreaders and replacements of this instrument.
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned thereto in the Credit Agreement.
Background
A. Mortgagor is the owner of the parcel(s) of real property
described on Schedule A attached hereto (such real property, together with all
of the buildings, improvements, structures and fixtures now or subsequently
located thereon (the "IMPROVEMENTS"), being collectively referred to as the
"REAL ESTATE").
B. Pursuant to the terms of the Credit Agreement, the Lenders
have agreed, among other things, to make the Loans and the Issuing Lender has
agreed to issue, and the L/C Participants have agreed to acquire, undivided
participating interests in the Letter(s) of Credit for the account of the
Borrower upon the terms and subject to the conditions set forth in the Credit
Agreement, which conditions include the grant by Mortgagor to Mortgagee of a
first lien upon and perfected security interest in, among other things, all
estate, right, title and interest of Mortgagor in and to the Real Estate
pursuant to the terms hereof.
C. It is a condition precedent to the agreement of each Lender
to make the initial Extension of Credit under the Credit Agreement that
Mortgagor executes and delivers this Mortgage.
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Granting Clauses
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Mortgagor agrees that to secure:
(a) the repayment of principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans
and Reimbursement Obligations and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Loan Party, whether
or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans (as they may be evidenced by the Notes from
time to time) and all other obligations (including the Reimbursement
Obligations) and liabilities of Mortgagor to Mortgagee, the Issuing
Lender and the Lenders, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred,
which may arise under, out of, or in connection with, the Credit
Agreement, the Loans, the Letters of Credit, the Security Documents,
any Guarantee Obligation of Mortgagor as to which any Lender is a
beneficiary, any Permitted Hedging Arrangement with any Lender or any
banking affiliate of any Lender (whether entered into directly, or
guaranteed by Mortgagor), the Guarantee and Collateral Agreement dated
as of the date hereof between Mortgagor, Holdings and Mortgagee (the
"GUARANTEE") or any other document made, delivered or given in
connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
or otherwise (including, without limitation, all fees, charges and
disbursements of counsel to the Administrative Agent, the Issuing
Lender or any Lender that are required to be paid by any Loan Party
pursuant to the Credit Agreement) (the items set forth above being
referred to collectively as the "INDEBTEDNESS"); and
(b) the performance of all covenants, agreements, obligations
and liabilities of Mortgagor (the "OBLIGATIONS") under or pursuant to
the provisions of the Credit Agreement, the Loans, this Mortgage, the
Guarantee, any other document securing payment of the Indebtedness (the
"SECURITY DOCUMENTS") and any amendments, supplements, extensions,
renewals, restatements, replacements or modifications of any of the
foregoing (the Credit Agreement, the Loans, the Letters of Credit, this
Mortgage, the Guarantee and all other documents and instruments from
time to time evidencing, securing or guaranteeing the payment of the
Indebtedness or the performance of the Obligations, as any of the same
may be amended, supplemented, extended, renewed, restated, replaced or
modified from time to time, are collectively referred to as the "LOAN
DOCUMENTS");
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MORTGAGOR HEREBY GRANTS TO MORTGAGEE A LIEN UPON AND A SECURITY INTEREST IN, AND
HEREBY MORTGAGES AND WARRANTS, GRANTS, ASSIGNS, TRANSFERS AND SETS OVER TO
MORTGAGEE:
(A) the Real Estate;
(B) all the estate, right, title, claim or demand whatsoever
of Mortgagor, in possession or expectancy, in and to the Real Estate or
any part thereof;
(C) all right, title and interest of Mortgagor in, to and
under all easements, rights of way, gores of land, streets, ways,
alleys, passages, sewer rights, waters, water courses, water and
riparian rights, development rights, air rights, mineral rights and all
estates, rights, titles, interests, privileges, licenses, tenements,
hereditaments and appurtenances belonging, relating or appertaining to
the Real Estate, and any reversions, remainders, rents, issues, profits
and revenue thereof and all land lying in the bed of any street, road
or avenue, in front of or adjoining the Real Estate to the center line
thereof;
(D) all right, title and interest of Mortgagor in and to all
of the fixtures, chattels, business machines, machinery, apparatus,
equipment, furnishings, fittings and articles of personal property of
every kind and nature whatsoever, and all appurtenances and additions
thereto and substitutions or replacements thereof (together with, in
each case, attachments, components, parts and accessories) currently
owned or subsequently acquired by Mortgagor and now or subsequently
attached to, or contained in or used or usable in any way in connection
with any operation or letting of the Real Estate, including but without
limiting the generality of the foregoing, all screens, awnings, shades,
blinds, curtains, draperies, artwork, carpets, rugs, storm doors and
windows, furniture and furnishings, heating, electrical, and mechanical
equipment, lighting, switchboards, plumbing, ventilating, air
conditioning and air-cooling apparatus, refrigerating, and incinerating
equipment, escalators, elevators, loading and unloading equipment and
systems, stoves, ranges, laundry equipment, cleaning systems (including
window cleaning apparatus), telephones, communication systems
(including satellite dishes and antennae), televisions, computers,
sprinkler systems and other fire prevention and extinguishing apparatus
and materials, security systems, motors, engines, machinery, pipes,
pumps, tanks, conduits, appliances, fittings and fixtures of every kind
and description (all of the foregoing in this paragraph (D) being
referred to as the "EQUIPMENT");
(E) all right, title and interest of Mortgagor in and to all
substitutes and replacements of, and all additions and improvements to,
the Real Estate and the
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Equipment, subsequently acquired by or released to Mortgagor or
constructed, assembled or placed by Mortgagor on the Real Estate,
immediately upon such acquisition, release, construction, assembling or
placement, including, without limitation, any and all building
materials to be used by Mortgagor whether stored at the Real Estate or
offsite, and, in each such case, without any further mortgage,
conveyance, assignment or other act by Mortgagor;
(F) all right, title and interest of Mortgagor in, to and
under all leases, subleases, underlettings, concession agreements,
management agreements, licenses and other agreements relating to the
use or occupancy of the Real Estate or the Equipment or any part
thereof, now existing or subsequently entered into by Mortgagor and
whether written or oral and all guarantees of any of the foregoing
(collectively, as any of the foregoing may be amended, restated,
extended, renewed or modified from time to time, the "LEASES"), and all
rights of Mortgagor in respect of cash and securities deposited
thereunder and the right to receive and collect the revenues, income,
rents, issues and profits thereof, together with all other rents,
royalties, issues, profits, revenue, income and other benefits arising
from the use and enjoyment of the Mortgaged Property (as defined below)
(collectively, the "RENTS");
(G) all books and records relating to or used in connection
with the operation of the Real Estate or the Equipment or any part
thereof;
(H) all right, title and interest of Mortgagor, to the extent
assignable, in and to (i) all unearned premiums under insurance
policies now or subsequently obtained by Mortgagor relating to the Real
Estate or Equipment, (ii) any such insurance policies, (iii) all
proceeds of any such insurance policies (including title insurance
policies) including the right to collect and receive such proceeds,
subject to the provisions relating to insurance generally set forth
below, and (iv) all awards and other compensation, including the
interest payable thereon and the right to collect and receive the same,
made to the present or any subsequent owner of the Real Estate or
Equipment for the taking by eminent domain, condemnation or otherwise,
of all or any part of the Real Estate or any easement or other right
therein, subject to the provisions relating to condemnation awards
generally set forth below;
(I) all right, title and interest of Mortgagor, to the extent
assignable, in and to (i) all contracts from time to time executed by
Mortgagor or any manager or agent on its behalf relating to the
ownership, construction, maintenance, repair, operation, occupancy,
sale or financing of the Real Estate or Equipment or any part thereof
and all agreements relating to the purchase or lease of any portion of
the Real Estate or any property which is adjacent or peripheral to the
Real Estate, together with the right to
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exercise such options (collectively, the "CONTRACTS"), (ii) all
consents, licenses, building permits, certificates of occupancy and
other governmental approvals relating to construction, completion,
occupancy, use or operation of the Real Estate or any part thereof
(collectively, the "PERMITS") and (iii) all drawings, plans,
specifications and similar or related items relating to the Real Estate
(collectively, the "PLANS");
(J) any and all monies now or subsequently on deposit for the
payment of real estate taxes or special assessments against the Real
Estate or for the payment of premiums on insurance policies covering
the foregoing property or otherwise on deposit with or held by
Mortgagee as provided in this Mortgage;
(K) all accounts and revenues arising from the operation of
the Improvements; and
(L) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now
owned or held or subsequently acquired by Mortgagor and described in the
foregoing clauses (A) through (E) are collectively referred to as the
"PREMISES", and those described in the foregoing clauses (A) through (L) are
collectively referred to as the "MORTGAGED PROPERTY").
TO HAVE AND TO HOLD the Mortgaged Property and the rights and
privileges hereby mortgaged unto Mortgagee, its successors and assigns for the
uses and purposes set forth, until the Indebtedness is fully paid and the
Obligations fully performed or as otherwise expressly provided in the Section of
this Mortgage entitled "Release of Lien".
Terms and Conditions
Mortgagor further represents, warrants, covenants and agrees
with Mortgagee as follows:
1. Warranty of Title. Mortgagor warrants that Mortgagor has
good title to the Real Estate in fee simple and good title to the rest of the
Mortgaged Property, subject only to the matters that are set forth in Schedule B
of the title insurance policy or policies being issued to Mortgagee to insure
the lien of this Mortgage and Liens expressly permitted under the Credit
Agreement (collectively, the "PERMITTED EXCEPTIONS") and Mortgagor shall
warrant, defend and preserve such title and the lien of the Mortgage thereon
against all claims of all persons and entities. Mortgagor further warrants that
it has the right to mortgage the Mortgaged Property.
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2. Payment of Indebtedness. Mortgagor shall pay the
Indebtedness at the times and places and in the manner specified in the Credit
Agreement and shall perform all the Obligations. Notwithstanding anything to the
contrary contained herein, the maximum principal amount of the Indebtedness
secured under any contingency by this instrument shall in no event exceed
$7,053,000, together with interest thereon, plus indeterminate amounts which may
be advanced by the Mortgagee in protection of the Mortgaged Premises or the
Mortgage, including taxes, assessments, charges, claims, fines, impositions,
insurance premiums and attorney's fees and other charges and fees as provided in
this Mortgage or the Credit Agreement to protect or preserve the Mortgaged
Property as are exempt from mortgage registry tax pursuant to Minnesota Statutes
Section 287.05, Subd. 4. The principal amount of the Indebtedness secured by
this Mortgage shall not be reduced as a result of any payment or application of
proceeds of any other collateral, if any, received by the Mortgagee, except to
the extent that application of the amounts so received reduces the principal
amount of the Indebtedness to less than $7,053,000, provided that no such
reduction in the revolving credit portion of the Indebtedness shall reduce the
principal amount of the Indebtedness secured by this Mortgage.
3. Requirements. (a) Mortgagor shall promptly comply with, or
cause to be complied with, and conform to all present and future laws, statutes,
codes, ordinances, orders, judgments, decrees, rules, regulations and
requirements, and irrespective of the nature of the work to be done, of each of
the United States of America, any State and any municipality, local government
or other political subdivision thereof and any agency, department, bureau,
board, commission or other instrumentality of any of them, now existing or
subsequently created (collectively, "GOVERNMENTAL AUTHORITY") which has
jurisdiction over the Mortgaged Property and all covenants, restrictions and
conditions now or later of record which may be applicable to any of the
Mortgaged Property, or to the use, manner of use, occupancy, possession,
operation, maintenance, alteration, repair or reconstruction of any of the
Mortgaged Property, except to the extent that failure to comply therewith, in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect. All present and future laws, statutes, codes, ordinances, orders,
judgments, decrees, rules, regulations and requirements of every Governmental
Authority applicable to Mortgagor or to any of the Mortgaged Property and all
covenants, restrictions, and conditions which now or later may be applicable to
any of the Mortgaged Property are collectively referred to as the "LEGAL
REQUIREMENTS".
(b) From and after the date of this Mortgage, except as
expressly permitted under the Credit Agreement or herein, Mortgagor shall not by
act or omission permit, other than Permitted Exceptions, any building or other
improvement on any premises not subject to the lien of this Mortgage to rely on
the Premises or any part thereof or any interest therein to fulfill any Legal
Requirement, and Mortgagor hereby assigns to Mortgagee any and all rights
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to give consent for all or any portion of the Premises or any interest therein
to be so used. Mortgagor shall not by act or omission impair the integrity of
any of the Real Estate as a single zoning lot separate and apart from all other
premises. Mortgagor represents that each parcel of the Real Estate constitutes a
legally subdivided lot, in compliance with all subdivision laws and similar
Legal Requirements, except to the extent that failure to comply therewith, in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect. Any act or omission by Mortgagor which would result in a violation of
any of the provisions of this subsection shall be void.
4. Payment of Taxes and Other Impositions. (a) Except as
expressly permitted under the Credit Agreement, Mortgagor, prior to delinquency,
shall pay and discharge all taxes of every kind and nature (including, without
limitation, all real and personal property, income, franchise, withholding,
transfer, gains, profits and gross receipts taxes), all charges for any easement
or agreement maintained for the benefit of any of the Mortgaged Property, all
general and special assessments, levies, permits, inspection and license fees,
all water and sewer rents and charges and all other public charges even if
unforeseen or extraordinary, imposed upon or assessed against or which may
become a lien on any of the Mortgaged Property, or arising in respect of the
occupancy, use or possession thereof, together with any penalties or interest on
any of the foregoing (all of the foregoing are collectively referred to as the
"IMPOSITIONS"). Mortgagor shall within 30 days after the request of Mortgagee
deliver to Mortgagee (i) original or copies of receipted bills and cancelled
checks or other evidence of payment of such Imposition if it is a real estate
tax or other public charge and (ii) evidence acceptable to Mortgagee in its
reasonable discretion showing the payment of any other such Imposition. If by
law any Imposition, at Mortgagor's option, may be paid in installments (whether
or not interest shall accrue on the unpaid balance of such Imposition),
Mortgagor may elect to pay such Imposition in such installments and shall be
responsible for the payment of such installments with interest, if any.
(b) Nothing herein shall affect any right or remedy of
Mortgagee under this Mortgage or otherwise, without notice or demand to
Mortgagor, to pay any Imposition after the date such Imposition shall have
become delinquent, and to add to the Indebtedness the amount so paid, together
with interest from the time of payment at the rate of interest described in
paragraph 4.1(c) of the Credit Agreement (the "DEFAULT RATE"). Any sums paid by
Mortgagee in discharge of any Impositions shall be (i) a charge on the Premises
secured hereby prior to any right or title to, interest in, or claim upon the
Premises subordinate to the lien of this Mortgage, and (ii) payable on demand by
Mortgagor to Mortgagee together with interest at the Default Rate as set forth
above.
(c) Mortgagor shall not claim, demand or be entitled to
receive any credit or credits toward the satisfaction of this Mortgage or on any
interest payable thereon for any taxes
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assessed against the Mortgaged Property or any part thereof, and shall not claim
any deduction from the taxable value of the Mortgaged Property by reason of this
Mortgage.
(d) Mortgagor shall have the right pursuant to subsection 7.3
of the Credit Agreement to contest in good faith to the amount or validity of
any Imposition by appropriate proceedings diligently conducted with reserves in
conformity with GAAP, provided that Mortgagor shall demonstrate to Mortgagee's
reasonable satisfaction that such proceedings shall operate conclusively to
prevent the sale of the Mortgaged Property, or any part thereof, to satisfy such
Imposition prior to final determination of such proceedings.
(e) Upon written notice to Mortgagor, Mortgagee during the
continuance of an Event of Default (as defined below) shall be entitled to
require Mortgagor to pay monthly in advance to Mortgagee the equivalent of
1/12th of the estimated annual Impositions. Mortgagee may commingle such funds
with its own funds but Mortgagor shall be entitled to interest thereon at a rate
mutually agreed upon by Mortgagor and Mortgagee.
5. Insurance. (a) Mortgagor shall maintain or cause to be
maintained on all of the Premises:
(i) property insurance against loss or damage by fire,
lightning, windstorm, tornado, water damage, flood, earthquake and by
such other further risks and hazards as now are or subsequently may be
covered by an "all risk" policy or a fire policy covering "special"
causes of loss (provided, however, that the maintenance of insurance
against earthquake, windstorm, flood and freeze risks shall be subject
to availability of such insurance coverage on commercially reasonable
terms). The policy shall include building ordinance law endorsements
and the policy limits shall be automatically reinstated after each loss
(other than with respect to flood and earthquake coverage which shall
be reinstated on a commercially reasonable basis);
(ii) commercial general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language or similar language of such endorsement), covering all claims
for personal injury, bodily injury or death, or property damage,
subject to standard policy terms, conditions and exclusions, occurring
on, in or about the Premises in an amount not less than $10,000,000
combined single limit with respect to personal injury, bodily injury or
death, or property damage relating to any one occurrence plus such
excess limits as Mortgagee shall reasonably request from time to time;
(iii) when and to the extent reasonably required by Mortgagee,
insurance against loss or damage by any other risk commonly insured
against by persons
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occupying or using like properties in the locality or localities in
which the Real Estate is situated;
(iv) during the course of any construction or repair of
Improvements, commercial general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language or similar language of such endorsement), (including coverage
for elevators and escalators, if any). The policy shall include
coverage for independent contractors and completed operations. The
completed operations coverage shall stay in effect for two years after
construction of any Improvements has been completed. The policy shall
provide coverage on an occurrence basis against claims for personal
injury, including, without limitation, bodily injury, and death, and
property damage resulting from Mortgagor's negligence or other behavior
for which Mortgagor may be adjudged tortiously liable, subject to
standard policy terms, conditions and exclusions, occurring on, in or
about the Premises and the adjoining streets, sidewalks and
passageways, such insurance to afford immediate minimum protection to a
limit of not less than that reasonably required by Mortgagee with
respect to personal injury, bodily injury or death to any one or more
persons or damage to property;
(v) during the course of any construction or repair of the
Improvements, workers' compensation insurance (including employer's
liability insurance) for all employees of Mortgagor engaged on or with
respect to the Premises in such amounts no less than the limits
established by law, or in the case of employer's liability insurance,
no less than $500,000, provided that Mortgagor may self-insure any or
all workers' compensation liabilities;
(vi) during the course of any construction, addition,
alteration or repair of the Improvements, builder's risk completed
value property insurance form against "all risks of physical loss"
(subject to standard policy exclusions), including collapse, water
damage, flood and earthquake and transit coverage, during construction
or repairs of the Improvements, with deductible approved by Mortgagee
in its reasonable discretion, in reporting form, covering the total
replacement value of work performed and equipment, supplies and
materials furnished (with an appropriate limit for soft costs in the
case of construction); provided, however, that the maintenance of
insurance against earthquake and flood risks shall be subject to
availability of such insurance coverage on commercially reasonable
terms;
(vii) boiler and machinery property insurance covering
pressure vessels, air tanks, boilers, machinery, pressure piping,
heating, air conditioning and elevator equipment and escalator
equipment, provided the Improvements contain equipment of
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such nature, in such amounts as are reasonably satisfactory to
Mortgagee but not less than the lesser of $1,000,000 or 10% of the
value of the Improvements;
(viii) if any portion of the Premises are located in an area
identified in the Federal Register as having special flood hazards by
the Secretary of Housing and Urban Development or other applicable
agency, flood insurance covering any parcel of the Mortgaged Property
which contains improvements in an amount satisfactory to Mortgagee in
its reasonable discretion, but in no event less than the maximum limit
of coverage available with respect to the particular type of property
under the National Flood Insurance Act of 1968, as amended and with a
term ending not later than the maturity of the Indebtedness and
Mortgagee shall receive confirmation that Mortgagor has received the
notice required pursuant to Section 208.8(e)(3) of Regulation H of the
Board of Governors of The Federal Reserve System; and
(ix) such other insurance in such amounts as Mortgagee may
reasonably request from time to time.
Each insurance policy (other than flood insurance written under the National
Flood Insurance Act of 1968, as amended, in which case to the extent available)
shall (i) provide that it shall not be cancelled, non-renewed or, in the case of
property and boiler and machinery insurance, materially amended without 30-days'
prior written notice to Mortgagee, (ii) with respect to all property insurance,
subject to availability on commercially reasonable terms, provide for
deductibles not to exceed $250,000, other than with respect to (a) flood,
freeze, windstorm and earthquake perils for which deductibles shall not exceed
the greater of $500,000 or 5% of values at risk per location involved in loss
and (b) boiler and machinery coverage for which deductibles shall not exceed the
greater of $500,000 or five times 100% of the daily time element value, contain
a "Replacement Cost Endorsement" without any deduction made for depreciation and
with no co-insurance penalty (or attaching an agreed amount endorsement
satisfactory to Mortgagee in its reasonable discretion), with loss payable
solely to Mortgagee (modified, if necessary and to the extent available under
such policy, to provide that proceeds in the amount of replacement cost may be
retained by Mortgagee without the obligation to rebuild) as its interest may
appear, without contribution, under a "standard" or "New York" mortgagee clause
acceptable to Mortgagee in its reasonable discretion and be written by insurance
companies having an A.M. Best Company, Inc. rating of A- or higher and a
financial size category of not less than VII, or otherwise as approved by
Mortgagee in its reasonable discretion and (iii) contain a "manuscript"
endorsement providing that Mortgagor may not unilaterally cancel such policy
without Mortgagee's prior written consent. Liability insurance policies shall
name Mortgagee as an additional insured and contain a waiver of subrogation
against Mortgagee; all such policies shall indemnify and hold Mortgagee harmless
from all liability claims occurring on, in or about the Premises and the
adjoining streets,
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sidewalks and passageways, subject to standard policy terms, conditions and
exclusions. The amounts of each insurance policy and the form of each such
policy shall at all times be satisfactory to Mortgagee in its reasonable
discretion. Each policy shall expressly provide that any proceeds which are
payable to Mortgagee shall be paid by check payable to the order of Mortgagee
only and requiring the endorsement of Mortgagee only. If any required insurance
shall expire, be withdrawn, become void by breach of any condition thereof by
Mortgagor or by any lessee of any part of the Mortgaged Property or become void
or unsafe by reason of the failure or impairment of the capital of any insurer,
Mortgagor shall immediately obtain new or additional insurance satisfactory to
Mortgagee in its reasonable discretion. Mortgagor shall not take out any
separate or additional insurance which is contributing in the event of loss
unless it is properly endorsed and otherwise satisfactory to Mortgagee in all
respects in its reasonable discretion.
(b) Mortgagor shall deliver to Mortgagee an original of each
insurance policy required to be maintained, or a certificate of such insurance
acceptable to Mortgagee in its reasonable discretion, together with a copy of
the declaration page for each such policy. Mortgagor shall (i) pay as they
become due all premiums for such insurance, (ii) not later than seven days prior
to the expiration of each policy to be furnished pursuant to the provisions of
this Section, deliver a renewed policy or policies, or certificates of insurance
acceptable to Mortgagee, in its reasonable discretion, or duplicate original or
originals thereof. Upon the reasonable request of Mortgagee, Mortgagor shall
cause its insurance underwriter or broker to certify to Mortgagee in writing
that all the requirements of this Mortgage governing insurance have been
satisfied.
(c) If Mortgagor is in default of its obligations to insure or
deliver any such policy or policies, or certificates of insurance acceptable to
Mortgagee, in its reasonable discretion, then Mortgagee, at its option and
without notice, may effect such insurance from year to year, and pay the premium
or premiums therefor, and Mortgagor shall pay to Mortgagee on demand such
premium or premiums so paid by Mortgagee with interest from the time of payment
at the Default Rate and the same shall be deemed to be secured by this Mortgage
and shall be collectible in the same manner as the Indebtedness secured by this
Mortgage.
(d) Mortgagor shall increase the amount of property insurance
required to equal 100% replacement cost pursuant to the provisions of this
Section at the time of each renewal of each policy (but not later than 12 months
from the date of this Mortgage and each successive 12 month period to occur
thereafter) by using the Xxxxxx & Swift Building Cost Index to determine whether
there shall have been an increase in the replacement value since the most recent
adjustment and, if there shall have been such an increase, the amount of
insurance required shall be adjusted accordingly.
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(e) Mortgagor promptly shall in all material respects comply
with and conform to (i) all provisions of each such insurance policy, and (ii)
all requirements of the insurers applicable to Mortgagor or to any of the
Mortgaged Property or to the use, manner of use, occupancy, possession,
operation, maintenance, alteration or repair of any of the Mortgaged Property.
Mortgagor shall not use or permit the use of the Mortgaged Property in any
manner which would permit any insurer to cancel any insurance policy or void
coverage required to be maintained by this Mortgage.
(f) (i) If the Mortgaged Property, or any part thereof, shall
be destroyed or damaged by fire or any other casualty, whether insured
or uninsured, or in the event any claim is made against Mortgagor for
any personal injury, bodily injury or property damage incurred on or
about the Premises, Mortgagor shall promptly give notice thereof to
Mortgagee.
(ii) If the Mortgaged Property is damaged by fire or other
casualty and the cost to repair such damage is less than $1,000,000,
then provided that no Event of Default shall have occurred and be
continuing, Mortgagor shall have the right to adjust such loss, and the
insurance proceeds relating to such loss may be paid over to Mortgagor;
provided that Mortgagor shall, promptly after any such damage, repair
such damage to the extent required by subsection 7.5 of the Credit
Agreement regardless of whether any insurance proceeds have been
received or whether such proceeds, if received, are sufficient to pay
for the costs of repair.
(iii) If the Mortgaged Property is damaged by fire or other
casualty, and the cost to repair such damage exceeds the limit in
Section 5(f)(ii) above, or if an Event of Default shall have occurred
and be continuing, then Mortgagor authorizes and empowers Mortgagee, at
Mortgagee's option and in Mortgagee's reasonable discretion, as
attorney-in-fact for Mortgagor, to make proof of loss, to adjust and
compromise any claim under any insurance policy, to appear in and
prosecute any action arising from any policy, to collect and receive
insurance proceeds and to deduct therefrom Mortgagee's reasonable
expenses incurred in the collection process. Each insurance company
concerned is hereby authorized and directed to make payment for such
loss directly to Mortgagee. Mortgagee shall have the right to require
Mortgagor to repair or restore the Mortgaged Property to the extent
required by subsection 7.5 of the Credit Agreement, and Mortgagor
hereby designates Mortgagee as its attorney-in-fact for the purpose of
making any election required or permitted under any insurance policy
relating to such repair or restoration. The insurance proceeds or any
part thereof received by Mortgagee may be applied by Mortgagee toward
reimbursement of all reasonable costs and expenses of Mortgagee in
collecting such proceeds, and the balance, at Mortgagee's option in its
sole and absolute discretion, to the principal (to
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the installments in inverse order of maturity, if payable in
installments) and interest due or to become due under the Notes, the
Credit Agreement or the other Loan Documents, to fulfill any other
Obligation of Mortgagor, to the restoration or repair of the property
damaged, or released to Mortgagor. Application by Mortgagee of any
insurance proceeds toward the last maturing installments of principal
and interest due or to become due on the Loans shall not excuse
Mortgagor from making any regularly scheduled payments due thereunder,
nor shall such application extend or reduce the amount of such
payments. In the event Mortgagee elects to release such proceeds to
Mortgagor, Mortgagor shall be obligated to use such proceeds to restore
or repair the Mortgaged Property to the extent required by subsection
7.5 of the Credit Agreement.
(g) In the event of foreclosure of this Mortgage or other
transfer of title to the Mortgaged Property in extinguishment of the
Indebtedness, all right, title and interest of Mortgagor in and to any insurance
policies then in force, to the extent assignable or transferable, shall pass to
the purchaser or grantee and Mortgagor hereby appoints Mortgagee its
attorney-in-fact, in Mortgagor's name, to assign and transfer all such policies
and proceeds to such purchaser or grantee.
(h) Upon written notice to Mortgagor, Mortgagee, during the
continuance of an Event of Default, shall be entitled to require Mortgagor to
pay monthly in advance to Mortgagee the equivalent of 1/12th of the estimated
annual premiums due on such insurance. Mortgagee may commingle such funds with
its own funds but Mortgagor shall be entitled to interest thereon at a rate
mutually agreed upon by Mortgagor and Mortgagee.
(i) Mortgagor may maintain insurance required under this
Mortgage by means of one or more blanket insurance policies maintained by
Mortgagor; provided, however, that (A) any such policy shall specify, or
Mortgagor shall furnish to Mortgagee a written statement from the insurer so
specifying, the maximum amount of the total insurance afforded by such blanket
policy that is allocated to the Premises and the other Mortgaged Property and
any sublimits and aggregates in such blanket policy applicable to the Premises
and the other Mortgaged Property, (B) each such blanket policy shall include an
endorsement providing that, in the event of a loss resulting from an insured
peril, insurance proceeds shall be allocated to the Mortgaged Property in an
amount equal to the coverages required to be maintained by Mortgagor as provided
above (subject to applicable sublimits and aggregates) and (C) the protection
afforded under any such blanket policy shall be no less than that which would
have been afforded under a separate policy or policies relating only to the
Mortgaged Property (subject to applicable sublimits and aggregates).
6. Restrictions on Liens and Encumbrances. Except for the lien
of this Mortgage and the Permitted Exceptions and except as otherwise permitted
pursuant to the
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terms of the Credit Agreement, Mortgagor shall not further mortgage, nor
otherwise encumber the Mortgaged Property nor create or suffer to exist any
lien, charge or encumbrance on the Mortgaged Property, or any part thereof,
whether superior or subordinate to the lien of this Mortgage and whether
recourse or non-recourse.
7. Due on Sale and Other Transfer Restrictions. Except as may
be otherwise expressly permitted under the Credit Agreement, Mortgagor shall not
sell, transfer, convey or assign all or any portion of, or any interest in, the
Mortgaged Property.
8. Maintenance; No Alteration; Inspection; Utilities. (a)
Mortgagor shall maintain or cause to be maintained all the Improvements in good
condition and repair and shall not commit or suffer any waste of the
Improvements. To the extent required under subsection 7.5 of the Credit
Agreement, Mortgagor shall repair, restore, replace or rebuild promptly any part
of the Premises which may be damaged or destroyed by any casualty whatsoever to
a condition substantially equivalent to its condition prior to the damage or
destruction. Except as permitted by the Credit Agreement, the Improvements shall
not be demolished or materially altered, nor any material additions built,
without the prior written consent of Mortgagee, provided that Mortgagor may make
alterations or additions without the consent of Mortgagee that do not materially
reduce the value of the Mortgaged Property.
(b) Mortgagee and any persons authorized by Mortgagee shall,
upon reasonable notice and at any reasonable time, have the right to enter and
inspect the Premises and the right to inspect all work done, labor performed and
materials furnished in and about the Improvements and the right to inspect and
make copies, to the extent reasonable, of all books, contracts and records of
Mortgagor relating to the Mortgaged Property.
(c) Except as permitted under subsection 7.3 of the Credit
Agreement, Mortgagor shall pay or cause to be paid prior to delinquency, all
utility charges which are incurred for gas, electricity, water or sewer services
furnished to the Premises and all other assessments or charges of a similar
nature, whether public or private, affecting the Premises or any portion
thereof, whether or not such assessments or charges are liens thereon.
9. Condemnation/Eminent Domain. Promptly upon obtaining
knowledge of the institution of any proceedings for the condemnation of the
Mortgaged Property, or any portion thereof, Mortgagor will notify Mortgagee of
the pendency of such proceedings. Mortgagor authorizes Mortgagee, at Mortgagee's
option and in Mortgagee's reasonable discretion, as attorney-in-fact for
Mortgagor, to commence, appear in and prosecute, in Mortgagee's or Mortgagor's
name, any action or proceeding relating to any condemnation of the Mortgaged
Property, or any portion thereof, and to settle or compromise any claim in
connection with such condemnation upon the occurrence and during the continuance
of an
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Event of Default. If Mortgagee elects not to participate in such condemnation
proceeding, then Mortgagor shall, at its expense, diligently prosecute any such
proceeding and shall consult with Mortgagee, its attorneys and experts and
cooperate with them in any defense of any such proceedings. All awards and
proceeds of condemnation shall be applied in the same manner as insurance
proceeds, and to the extent such awards and proceeds exceed $1,000,000 and no
Event of Default shall have occurred and be continuing, such awards and proceeds
shall be assigned to Mortgagee to be applied in the same manner as insurance
proceeds, as provided above in subsection 5(f)(iii) above, and Mortgagor agrees
to execute any such assignments of all such awards as Mortgagee may request.
10. Restoration. If Mortgagee elects or is required hereunder
to release funds to Mortgagor for restoration of any of the Mortgaged Property,
then such restoration shall be performed in accordance with such conditions as
Mortgagee shall impose in its reasonable discretion, and as are customarily
imposed by construction lenders.
11. Leases. (a) Mortgagor shall not (i) execute an assignment
or pledge of any Lease relating to all or any portion of the Mortgaged Property
other than in favor of Mortgagee, or (ii) without the prior written consent of
Mortgagee, which consent shall not be unreasonably withheld or delayed, execute
or permit to exist any Lease of any of the Mortgaged Property, except for
Permitted Exceptions and except as may be otherwise expressly permitted under
the Credit Agreement.
(b) As to any Lease consented to by Mortgagee under subsection
11(a) above, Mortgagor shall:
(i) promptly perform in all material respects all of the
provisions of the Lease on the part of the lessor thereunder to be
performed;
(ii) promptly enforce all of the material provisions of the
Lease on the part of the lessee thereunder to be performed;
(iii) appear in and defend any action or proceeding arising
under or in any manner connected with the Lease or the obligations of
Mortgagor as lessor or of the lessee thereunder;
(iv) exercise, within 5 business days after a reasonable
request by Mortgagee, any right to request from the lessee a
certificate with respect to the status thereof;
(v) promptly deliver to Mortgagee copies of any notices of
default which Mortgagor may at any time forward to or receive from the
lessee;
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(vi) promptly deliver to Mortgagee a fully executed
counterpart of the Lease; and
(vii) promptly deliver to Mortgagee, upon Mortgagee's
reasonable request, if permitted under such Lease, an assignment of the
Mortgagor's interest under such Lease.
(c) Mortgagor shall deliver to Mortgagee, within 10 business
days after a reasonable request by Mortgagee, a written statement, certified by
Mortgagor as being true, correct and complete, containing the names of all
lessees and other occupants of the Mortgaged Property, the terms of all Leases
and the spaces occupied and rentals payable thereunder, and a list of all Leases
which are then in default, including the nature and magnitude of the default;
such statement shall be accompanied by such other information as Mortgagee may
reasonably request.
(d) All Leases entered into by Mortgagor after the date
hereof, if any, and all rights of any lessees thereunder shall be subject and
subordinate in all respects to the lien and provisions of this Mortgage unless
Mortgagee shall otherwise elect in writing.
(e) In the event of the enforcement by Mortgagee of any remedy
under this Mortgage, the lessee under each Lease shall, if requested by
Mortgagee or any other person succeeding to the interest of Mortgagee as a
result of such enforcement, and if provided, at such lessee's request, with a
nondisturbance agreement from Mortgagee or such person, attorn to Mortgagee or
to such person and shall recognize Mortgagee or such successor in interest as
lessor under the Lease without change in the provisions thereof; provided
however, that Mortgagee or such successor in interest shall not be: (i) bound by
any payment of an installment of rent or additional rent which may have been
made more than 30 days before the due date of such installment; (ii) bound by
any amendment or modification to the Lease made without the consent of Mortgagee
or such successor in interest; (iii) liable for any previous act or omission of
Mortgagor (or its predecessors in interest); (iv) responsible for any monies
owing by Mortgagor to the credit of such lessee or subject to any credits,
offsets, claims, counterclaims, demands or defenses which the lessee may have
against Mortgagor (or its predecessors in interest); (v) bound by any covenant
to undertake or complete any construction of the Premises or any portion
thereof; or (vi) obligated to make any payment to such lessee other than any
security deposit actually delivered to Mortgagee or such successor in interest.
Each lessee or other occupant, upon request by Mortgagee or such successor in
interest, shall execute and deliver an instrument or instruments confirming such
attornment. In addition, Mortgagor agrees that each Lease entered into after the
date of this Mortgage shall include language to the effect of subsections (d)
and (e) of this Section and language to the effect that if any act or omission
of Mortgagor would give any lessee under such Lease the right,
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immediately or after lapse of a period of time, to cancel or terminate such
Lease, or to xxxxx or offset against the payment of rent or to claim a partial
or total eviction, such lessee shall not exercise such right until it has given
written notice of such act or omission to Mortgagee and until a reasonable
period for remedying such act or omission shall have elapsed following the
giving of such notice without a remedy being effected; provided that the
provisions of such subsections shall be self-operative and any failure of any
Lease to include such language shall not impair the binding effect of such
provisions on any lessee under such Lease.
12. Further Assurances/Estoppel Certificates. To further
assure Mortgagee's rights under this Mortgage, Mortgagor agrees upon demand of
Mortgagee to do any act or execute any additional documents (including, but not
limited to, security agreements on any personalty included or to be included in
the Mortgaged Property and a separate assignment of each Lease in recordable
form) as may be reasonably required by Mortgagee to confirm the rights or
benefits conferred on Mortgagee by this Mortgage.
13. Mortgagee's Right to Perform. If Mortgagor fails to
perform any of the covenants or agreements of Mortgagor, Mortgagee, without
waiving or releasing Mortgagor from any obligation or default under this
Mortgage, may, at any time (but shall be under no obligation to) pay or perform
the same, and the amount or cost thereof, with interest at the Default Rate,
shall immediately be due from Mortgagor to Mortgagee and the same shall be
secured by this Mortgage and shall be an encumbrance on the Mortgaged Property
prior to any right, title to, interest in or claim upon the Mortgaged Property
attaching subsequent to the date of this Mortgage. No payment or advance of
money by Mortgagee under this Section shall be deemed or construed to cure
Mortgagor's default or waive any right or remedy of Mortgagee.
14. Events of Default. The occurrence of an Event of Default
under the Credit Agreement shall constitute an Event of Default hereunder.
15. Remedies. (a) Upon the occurrence of any Event of Default,
in addition to any other rights and remedies Mortgagee may have pursuant to the
Loan Documents, or as provided by law, and without limitation, the Indebtedness
and all other amounts payable with respect to the Loans, the Letters of Credit,
the Credit Agreement, this Mortgage and the other Security Documents shall
become due and payable as provided in the Credit Agreement. Except as expressly
provided above in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived. In addition, upon the
occurrence of any Event of Default, Mortgagee may immediately take such action,
without notice or demand, as it deems advisable to protect and enforce its
rights against Mortgagor and in and to the Mortgaged Property, including, but
not limited to, the following actions, each of which may be pursued concurrently
or otherwise, at such time and in such manner as Mortgagee may
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determine, in its sole discretion, without impairing or otherwise affecting the
other rights and remedies of Mortgagee:
(i) Mortgagee may, to the extent permitted by applicable law,
(A) institute and maintain an action of mortgage foreclosure against all or any
part of the Mortgaged Property (as described below), (B) institute and maintain
an action on the Notes, the Senior Secured Credit Agreement or the other
Security Documents, (C) sell all or part of the Mortgaged Property (Mortgagor
expressly granting to Mortgagee the power of sale, as more fully described
below), or (D) take such other action at law or in equity for the enforcement of
this Mortgage or any of the Loan Documents as the law may allow. Mortgagee may
proceed in any such action to final judgment and execution thereon for all sums
due hereunder, together with interest thereon at the Default Rate and all costs
of suit, including, without limitation, reasonable attorneys' fees and
disbursements. Interest at the Default Rate shall be due on any judgment
obtained by Mortgagee from the date of judgment until actual payment is made of
the full amount of the judgment.
(ii) Mortgagee may immediately commence foreclosure
proceedings against the Mortgaged Property pursuant to applicable law. The
commencement by Mortgagee of foreclosure proceedings by advertisement or in
equity shall be deemed an exercise by Mortgagee of its option set forth above to
accelerate the due date of all sums secured hereby. Mortgagor hereby grants
power to Mortgagee, in the event of the occurrence of an Event of Default
hereunder, to grant, bargain, sell, release and convey the Mortgaged Property at
public auction or vendue, and upon such sale to execute and deliver to the
purchaser(s) instruments of conveyance pursuant to the terms hereof and to the
applicable laws.
(iii) Mortgagee may personally, or by its agents, attorneys
and employees and without regard to the adequacy or inadequacy of the Mortgaged
Property or any other collateral as security for the Indebtedness and
Obligations enter into and upon the Mortgaged Property and each and every part
thereof and exclude Mortgagor and its agents and employees therefrom without
liability for trespass, damage or otherwise (Mortgagor hereby agreeing to
surrender possession of the Mortgaged Property to Mortgagee upon demand at any
such time) and use, operate, manage, maintain and control the Mortgaged Property
and every part thereof. Following such entry and taking of possession, Mortgagee
shall be entitled, without limitation, (x) to lease all or any part or parts of
the Mortgaged Property for such periods of time and upon such conditions as
Mortgagee may, in its discretion, deem proper, (y) to enforce, cancel or modify
any Lease and (z) generally to execute, do and perform any other act, deed,
matter or thing concerning the Mortgaged Property as Mortgagee shall deem
appropriate as fully as Mortgagor might do.
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Mortgagor acknowledges that it has been advised that Mortgagee
recognizes the value of the security covered hereby is inextricably intertwined
with the effectiveness of the management, maintenance and general operation of
the Mortgaged Property, and that Mortgagee would not extend the Indebtedness
secured hereby unless it could be assured that it would have the right to take
possession of the Mortgaged Property in order to manage or to control management
thereof, and to enjoy the income, rents and profits therefrom, immediately upon
default by Mortgagor hereunder, notwithstanding that foreclosure proceedings may
not have been instituted, or are pending, or the redemption period may not have
expired. Accordingly, Mortgagor hereby knowingly, intelligently and voluntarily
waives all right to possession of the Mortgaged Property from and after the
occurrence of an Event of Default hereunder, upon demand for possession by
Mortgagee, and Mortgagor agrees not to assert any objection or defense to
Mortgagee's request or petition to a court for possession. The rights hereby
conferred upon Mortgagee have been agreed upon prior to any default by Mortgagor
hereunder and the exercise by Mortgagee of any such rights shall not be deemed
to put Mortgagee in the status of a "mortgagee in possession". Mortgagor
acknowledges that this provision is material to this transaction and that
Mortgagee would not extend the Indebtedness secured hereby but for this
paragraph.
(b) The holder of this Mortgage, in any action to foreclose
it, shall be entitled to the appointment of a receiver. In case of a foreclosure
sale, the Real Estate may be sold, at Mortgagee's election, in one parcel or in
more than one parcel and if in more than one parcel the same may be divided as
Mortgagee may elect and Mortgagee is specifically empowered, (without being
required to do so, and in its sole and absolute discretion) to cause successive
sales of portions of the Mortgaged Property to be held. At the election of
Mortgagee, the Mortgaged Property may be offered first in parcels and then as a
whole, the offer producing the highest price for the entire property offered to
prevail. Mortgagor hereby waives any right to require any such sale to be made
in parcels or any right to select such parcels.
(c) In the event of any breach of any of the covenants,
agreements, terms or conditions contained in this Mortgage, and notwithstanding
to the contrary any exculpatory or non-recourse language which may be contained
herein, Mortgagee shall be entitled to enjoin such breach and obtain specific
performance of any covenant, agreement, term or condition and Mortgagee shall
have the right to invoke any equitable right or remedy as though other remedies
were not provided for in this Mortgage.
(d) In the event of a default because of the existence of any
lien upon the Mortgaged Property, Mortgagee shall have the right (without being
obligated to do so or to continue to do so), without notice to Mortgagor, to
advance on and for the account of Mortgagor such sums as Mortgagee in its sole
discretion deems necessary to cure such default or to induce the holder of any
such lien to forbear from exercising its rights thereunder.
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Notwithstanding anything herein to the contrary, the repayment of all such
advances, with interest thereon at the Default Rate from the date of each such
advance, shall be immediately due and payable without demand.
16. Right of Mortgagee to Credit Sale. Upon the occurrence of
any sale made under this Mortgage, whether made under the power of sale or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale, Mortgagee may bid for and acquire the Mortgaged Property or any part
thereof. In lieu of paying cash therefor, Mortgagee may make settlement for the
purchase price by crediting upon the Indebtedness or other sums secured by this
Mortgage the net sales price after deducting therefrom the expenses of sale and
the cost of the action and any other sums which Mortgagee is authorized to
deduct under this Mortgage. In such event, this Mortgage, the Notes and other
instruments evidencing the Indebtedness and any and all documents evidencing
expenditures secured hereby may be presented to the person or persons conducting
the sale in order that the amount so used or applied may be credited upon the
Indebtedness as having been paid.
17. Appointment of Receiver. If an Event of Default shall have
occurred and be continuing, Mortgagee as a matter of right and without notice to
Mortgagor, unless otherwise required by applicable law, and without regard to
the adequacy or inadequacy of the Mortgaged Property or any other collateral as
security for the Indebtedness and Obligations or the interest of Mortgagor
therein, shall have the right to apply to any court having jurisdiction to
appoint a receiver or receivers or other manager of the Mortgaged Property,
without requiring the posting of a surety bond and without reference to the
adequacy or inadequacy of the value of the Mortgaged Property or the solvency or
insolvency of Mortgagor or any other party obligated for payment of all or any
part of the Indebtedness, and whether or not waste has occurred with respect to
the Mortgaged Property. Mortgagor hereby irrevocably consents to such
appointment and waives notice of any application therefor (except as may be
required by law). Any such receiver or receivers shall have all the usual powers
and duties of receivers in like or similar cases and all the powers and duties
of Mortgagee in case of entry as provided in this Mortgage, including, without
limitation and to the extent permitted by law, the right to enter into leases of
all or any part of the Mortgaged Property, and shall continue as such and
exercise all such powers until the date of confirmation of sale of the Mortgaged
Property unless such receivership is sooner terminated.
18. Extension, Release, etc. (a) Without affecting the lien or
charge of this Mortgage upon any portion of the Mortgaged Property not then or
theretofore released as security for the full amount of the Indebtedness,
Mortgagee may, from time to time and without notice, agree to (i) release any
person liable for the Indebtedness, (ii) extend the maturity or alter any of the
terms of the Indebtedness or any guaranty thereof, (iii) grant other
indulgences, (iv) release or reconvey, or cause to be released or reconveyed at
any time at
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Mortgagee's option any parcel, portion or all of the Mortgaged Property, (v)
take or release any other or additional security for any obligation herein
mentioned, or (vi) make compositions or other arrangements with debtors in
relation thereto. If at any time this Mortgage shall secure less than all of the
principal amount of the Indebtedness, it is expressly agreed that any repayments
of the principal amount of the Indebtedness shall not reduce the amount of the
encumbrance of this Mortgage until the encumbrance amount shall equal the
principal amount of the Indebtedness outstanding.
(b) No recovery of any judgment by Mortgagee and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of Mortgagor shall affect the encumbrance of this Mortgage or any
liens, rights, powers or remedies of Mortgagee hereunder, and such liens,
rights, powers and remedies shall continue unimpaired.
(c) If Mortgagee shall have the right to foreclose this
Mortgage, Mortgagor authorizes Mortgagee at its option to foreclose the lien of
this Mortgage subject to the rights of any tenants of the Mortgaged Property.
The failure to make any such tenants parties defendant to any such foreclosure
proceeding and to foreclose their rights will not be asserted by Mortgagor as a
defense to any proceeding instituted by Mortgagee to collect the Indebtedness or
to foreclose the lien of this Mortgage.
(d) Unless expressly provided otherwise, in the event that
ownership of this Mortgage and title to the Mortgaged Property or any estate
therein shall become vested in the same person or entity, this Mortgage shall
not merge in such title but shall continue as a valid lien on the Mortgaged
Property for the amount secured hereby.
19. Security Agreement under Uniform Commercial Code. (a) It
is the intention of the parties hereto that this Mortgage shall constitute a
Security Agreement within the meaning of the Uniform Commercial Code (the
"CODE") of the State in which the Mortgaged Property is located. If an Event of
Default shall occur under this Mortgage, then in addition to having any other
right or remedy available at law or in equity, Mortgagee shall have the option
of either (i) proceeding under the Code and exercising such rights and remedies
as may be provided to a secured party by the Code with respect to all or any
portion of the Mortgaged Property which is personal property (including, without
limitation, taking possession of and selling such property) or (ii) treating
such property as real property and proceeding with respect to both the real and
personal property constituting the Mortgaged Property; or in accordance with
Mortgagee's rights, powers and remedies with respect to the real property (in
which event the default provisions of the Code shall not apply). If Mortgagee
shall elect to proceed under the Code, then five days' notice of sale of the
personal property shall be deemed reasonable notice and the reasonable expenses
of retaking, holding, preparing for sale, selling and the like incurred by
Mortgagee shall include, but not be limited to,
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reasonable attorneys' fees and legal expenses. At Mortgagee's request, during
the continuance of an Event of Default, Mortgagor shall assemble the personal
property and make it available to Mortgagee at a place designated by Mortgagee
which is reasonably convenient to both parties.
(b) Mortgagor and Mortgagee agree, to the extent permitted by
law, that: (i) all of the goods described within the definition of the word
"Equipment" are or are to become fixtures on the Real Estate; (ii) this Mortgage
upon recording or registration in the real estate records of the proper office
shall constitute a financing statement filed as a "fixture filing" within the
meaning of Sections 9-313 and 9-402 of the Code; (iii) Mortgagor is the record
owner of the Real Estate; (iv) the mailing addresses of Mortgagor and Mortgagee
are as set forth on the first page of this Mortgage; and (v) Mortgagor's federal
tax identification number is 00-0000000. In addition, for purposes of Article 9
of the Uniform Commercial Code, (i) Mortgagor is the "debtor", (ii) Mortgagee is
the "secured party" and (iii) information concerning the security interest
created hereby may be obtained from Mortgagee at its address on the first page
of this Mortgage.
(c) Mortgagor, upon request by Mortgagee from time to time,
shall execute, acknowledge and deliver to Mortgagee one or more separate
security agreements, in form satisfactory to Mortgagee in its reasonable
discretion, covering all or any part of the Mortgaged Property and will further
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, any financing statement, affidavit, continuation statement or
certificate or other document as Mortgagee may request in order to perfect,
preserve, maintain, continue or extend the security interest under and the
priority of this Mortgage and such security instrument. Mortgagor further agrees
to pay to Mortgagee on demand all reasonable costs and expenses incurred by
Mortgagee in connection with the preparation, execution, recording, filing and
re-filing of any such document and all reasonable costs and expenses of any
record searches for financing statements Mortgagee shall reasonably require. If
Mortgagor shall fail to furnish any financing or continuation statement within
10 days after request by Mortgagee, then pursuant to the provisions of the Code,
Mortgagor hereby authorizes Mortgagee, without the signature of Mortgagor, to
execute and file any such financing and continuation statements. The filing of
any financing or continuation statements in the records relating to personal
property or chattels shall not be construed as in any way impairing the right of
Mortgagee to proceed against any personal property encumbered by this Mortgage
as real property, as set forth above.
20. Assignment of Rents. (a) Mortgagor hereby absolutely and
unconditionally assigns, transfers, conveys and sets over to Mortgagee, the
Rents as further security for the payment of the Indebtedness and performance of
the Obligations, and Mortgagor grants to Mortgagee the right to enter the
Mortgaged Property for the purpose of
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collecting the same and to let the Mortgaged Property or any part thereof and to
apply the Rents on account of the Indebtedness. The foregoing assignment and
grant is present and absolute and shall continue in effect until the
Indebtedness is paid in full, but Mortgagee hereby waives the right to enter the
Mortgaged Property for the purpose of collecting the Rents, letting the
Mortgaged Property or any part thereof or applying the Rents and Mortgagor shall
be entitled to collect, receive, use and retain the Rents until the occurrence
of an Event of Default under this Mortgage; such right of Mortgagor to collect,
receive, use and retain the Rents may be revoked by Mortgagee upon the
occurrence of any Event of Default under this Mortgage by giving not less than
five days' written notice of such revocation to Mortgagor; in the event such
notice is given, Mortgagor shall pay over to Mortgagee, or to any receiver
appointed to collect the Rents, any lease security deposits, and shall pay
monthly in advance to Mortgagee, or to any such receiver, the fair and
reasonable rental value as determined by Mortgagee for the use and occupancy of
the Mortgaged Property or of such part thereof as may be in the possession of
Mortgagor or any affiliate of Mortgagor, and upon default in any such payment
Mortgagor and any such affiliate will vacate and surrender the possession of the
Mortgaged Property to Mortgagee or to such receiver, and in default thereof may
be evicted by summary proceedings or otherwise. Mortgagor shall not accept
prepayments of installments of Rent to become due for a period of more than one
month in advance (except for security deposits and estimated payments of
percentage rent, if any).
(b) Notwithstanding anything to the contrary in this Mortgage,
all Rents and revenue collected by Mortgagee or any receiver subsequent to the
occurrence of an Event of Default shall be applied as follows:
(i) to the payment of all reasonable fees of any receiver
approved by court;
(ii) to the payment of all tenant security deposits then owing
to any lessee under any lease pursuant to the provisions of Minn. Statute
Section 504.20;
(iii) to the payment of all prior real estate taxes and
special assessments with respect to the Mortgaged Property, or if this Mortgage
requires periodic escrow payments for such taxes and assessments, to the escrow
payment then due;
(iv) to the payment of all premiums then due for the insurance
required by the provisions of this Mortgage, or if this Mortgage requires escrow
payments for such premiums, to the escrow payments then due;
(v) to the payment of costs incurred in normal maintenance and
operation of the Mortgaged Property;
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(vi) if received prior to any foreclosure sale of the
Mortgaged Property, to Mortgagee for the payment of the Obligations secured by
this Mortgage, but no such payment made after the acceleration of all or any of
the Obligations shall affect such acceleration;
(vii) if received during or with respect to the period of
redemption after a foreclosure sale of the Mortgaged Property;
(A) if the purchaser at the foreclosure sale is not
Mortgagee, first to Mortgagee to the extent of any deficiency of the
sale proceeds to repay the Obligations secured by this Mortgage, second
to the purchaser as a credit to the redemption price, but if the
Mortgaged Property is not redeemed, then to the purchaser of the
Mortgaged Property; and
(B) if the purchaser at the foreclosure sale is
Mortgagee, to Mortgagee to the extent of any deficiency of the sale
proceeds to repay the indebtedness secured by this Mortgage and the
balance to be retained by Mortgagee as a credit to the redemption
price, but if the Mortgaged Property is not redeemed, then to
Mortgagee, whether or not such deficiency exists.
This rights and powers of Mortgagee under this Mortgage and the application of
Rents and revenue shall continue until the expiration of the redemption period
from any foreclosure sale, whether or not any deficiency remains after a
foreclosure.
21. Trust Funds. All lease security deposits of the Real
Estate shall be treated as trust funds not to be commingled with any other funds
of Mortgagor. Within 10 days after request by Mortgagee, Mortgagor shall furnish
Mortgagee satisfactory evidence of compliance with this subsection, together
with a statement of all lease security deposits by lessees and copies of all
Leases not previously delivered to Mortgagee under which such security deposits
are held, which statement shall be certified by Mortgagor.
22. Additional Rights. The holder of any subordinate lien or
subordinate mortgage on the Mortgaged Property shall have no right to terminate
any Lease whether or not such Lease is subordinate to this Mortgage nor shall
any holder of any subordinate lien or subordinate mortgage join any tenant under
any Lease in any action to foreclose the lien or modify, interfere with, disturb
or terminate the rights of any tenant under any Lease. By recordation of this
Mortgage all subordinate lienholders under subordinate mortgages are subject to
and notified of this provision, and any action taken by any such lienholder or
mortgagee contrary to this provision shall be null and void. Upon the occurrence
of any Event of Default, Mortgagee may, in its sole discretion and without
regard to the adequacy of its security under this Mortgage, apply all or any
part of any amounts on deposit with Mortgagee
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under this Mortgage against all or any part of the Indebtedness. Any such
application shall not be construed to cure or waive any Default or Event of
Default or invalidate any act taken by Mortgagee on account of such Default or
Event of Default.
23. Changes in Method of Taxation. In the event of the passage
after the date hereof of any law of any Governmental Authority deducting from
the value of the Premises for the purposes of taxation any lien or mortgage
thereon, or changing in any way the laws for the taxation of mortgages or deeds
of trust or debts secured thereby for federal, state or local purposes, or the
manner of collection of any such taxes, and imposing a tax, either directly or
indirectly, on mortgages or deeds of trust or debts secured thereby, the holder
of this Mortgage shall have the right to declare the Indebtedness due on a date
to be specified by not less than 30 days' written notice to be given to
Mortgagor unless within such 30-day period Mortgagor shall assume as an
Obligation hereunder the payment of any tax so imposed until full payment of the
Indebtedness and such assumption shall be permitted by law.
24. Notices. All notices, requests, demands and other
communications hereunder shall be deemed to have been sufficiently given or
served when served in the same manner as set forth for notices in the Credit
Agreement.
25. No Oral Modification. This Mortgage may not be changed or
terminated orally. Any agreement made by Mortgagor and Mortgagee after the date
of this Mortgage relating to this Mortgage shall be superior to the rights of
the holder of any intervening or subordinate mortgage, lien or encumbrance.
26. Partial Invalidity. In the event any one or more of the
provisions contained in this Mortgage shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, but each shall be
construed as if such invalid, illegal or unenforceable provision had never been
included. Notwithstanding to the contrary anything contained in this Mortgage or
in any provisions of the Indebtedness or Loan Documents, the obligations of
Mortgagor and of any other obligor under the Indebtedness or Loan Documents
shall be subject to the limitation that Mortgagee shall not charge, take or
receive, nor shall Mortgagor or any other obligor be obligated to pay to
Mortgagee, any amounts constituting interest in excess of the maximum rate
permitted by law to be charged by Mortgagee.
27. Mortgagor's Waiver of Rights. To the fullest extent
permitted by law, Mortgagor waives the benefit of all laws now existing or that
may subsequently be enacted providing for (i) any appraisement before sale of
any portion of the Mortgaged Property, (ii) any extension of the time for the
enforcement of the collection of the Indebtedness or the creation or extension
of a period of redemption from any sale made in collecting such debt and
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(iii) exemption of the Mortgaged Property from attachment, levy or sale under
execution or exemption from civil process. To the full extent Mortgagor may do
so, Mortgagor agrees that Mortgagor will not 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, valuation, stay, exemption, extension or
redemption, or requiring foreclosure of this Mortgage before exercising any
other remedy granted hereunder and Mortgagor, for Mortgagor and its successors
and assigns, and for any and all persons ever claiming any interest in the
Mortgaged Property, to the extent permitted by law, hereby waives and releases
all rights of redemption, valuation, appraisement, stay of execution, notice of
election to mature or declare due the whole of the secured indebtedness and
marshalling in the event of foreclosure of the liens hereby created.
28. Remedies Not Exclusive. Mortgagee shall be entitled to
enforce payment of the Indebtedness and performance of the Obligations and to
exercise all rights and powers under this Mortgage or under any of the other
Loan Documents or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Indebtedness and Obligations may now or
hereafter be otherwise secured, whether by deed of trust, mortgage, security
agreement, pledge, lien, assignment or otherwise. Neither the acceptance of this
Mortgage nor its enforcement, shall prejudice or in any manner affect
Mortgagee's right to realize upon or enforce any other security now or hereafter
held by Mortgagee, it being agreed that Mortgagee shall be entitled to enforce
this Mortgage and any other security now or hereafter held by Mortgagee in such
order and manner as Mortgagee may determine in its absolute discretion. No
remedy herein conferred upon or reserved to Mortgagee is intended to be
exclusive of any other remedy herein or by law provided or permitted, but each
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. Every
power or remedy given by any of the Loan Documents to Mortgagee or to which
either may otherwise be entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed expedient by
Mortgagee. In no event shall Mortgagee, in the exercise of the remedies provided
in this Mortgage (including, without limitation, in connection with the
assignment of Rents, or the appointment of a receiver and the entry of such
receiver on to all or any part of the Mortgaged Property), be deemed a
"mortgagee in possession," and Mortgagee shall not in any way be made liable for
any act, either of commission or omission, in connection with the exercise of
such remedies.
29. Multiple Security. If (a) the Premises shall consist of
one or more parcels, whether or not contiguous and whether or not located in the
same county, or (b) in addition to this Mortgage, Mortgagee shall now or
hereafter hold or be the mortgagee of one or more additional mortgages, liens,
deeds of trust or other security (directly or indirectly) for the Indebtedness
upon other property in the State in which the Premises are located (whether or
not such property is owned by Mortgagor or by others) or (c) both the
circumstances described
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in clauses (a) and (b) shall be true, then to the fullest extent permitted by
law, Mortgagee may, at its election, commence or consolidate in a single
foreclosure action all foreclosure proceedings against all such collateral
securing the Indebtedness (including the Mortgaged Property), which action may
be brought or consolidated in the courts of any county in which any of such
collateral is located. Mortgagor acknowledges that the right to maintain a
consolidated foreclosure action is a specific inducement to Mortgagee to extend
the Indebtedness, and Mortgagor expressly and irrevocably waives any objections
to the commencement or consolidation of the foreclosure proceedings in a single
action and any objections to the laying of venue or based on the grounds of
forum non conveniens which it may now or hereafter have. Mortgagor further
agrees that if Mortgagee shall be prosecuting one or more foreclosure or other
proceedings against a portion of the Mortgaged Property or against any
collateral other than the Mortgaged Property, which collateral directly or
indirectly secures the Indebtedness, or if Mortgagee shall have obtained a
judgment of foreclosure or similar judgment against such collateral, then,
whether or not such proceedings are being maintained or judgments were obtained
in or outside the State in which the Premises are located, Mortgagee may
commence or continue any foreclosure proceedings and exercise its other remedies
granted in this Mortgage against all or any part of the Mortgaged Property and
Mortgagor waives any objections to the commencement or continuation of a
foreclosure of this Mortgage or exercise of any other remedies hereunder based
on such other proceedings or judgments, and waives any right to seek to dismiss,
stay, remove, transfer or consolidate either any action under this Mortgage or
such other proceedings on such basis. Neither the commencement nor continuation
of proceedings to foreclose this Mortgage nor the exercise of any other rights
hereunder nor the recovery of any judgment by Mortgagee in any such proceedings
shall prejudice, limit or preclude Mortgagee's right to commence or continue one
or more foreclosure or other proceedings or obtain a judgment against any other
collateral (either in or outside the State in which the Real Estate is located)
which directly or indirectly secures the Indebtedness, and Mortgagor expressly
waives any objections to the commencement of, continuation of, or entry of a
judgment in such other proceedings or exercise of any remedies in such
proceedings based upon any action or judgment connected to this Mortgage, and
Mortgagor also waives any right to seek to dismiss, stay, remove, transfer or
consolidate either such other proceedings or any sale or action under this
Mortgage on such basis. It is expressly understood and agreed that to the
fullest extent permitted by law, Mortgagee may, at its election, cause the sale
of all collateral which is the subject of a single foreclosure action at either
a single sale or at multiple sales conducted simultaneously and take such other
measures as are appropriate in order to effect the agreement of the parties to
dispose of and administer all collateral securing the Indebtedness (directly or
indirectly) in the most economical and least time-consuming manner.
30. Successors and Assigns. All covenants of Mortgagor
contained in this Mortgage are imposed solely and exclusively for the benefit of
Mortgagee and its respective
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successors and assigns, and no other person or entity shall have standing to
require compliance with such covenants or be deemed, under any circumstances, to
be a beneficiary of such covenants, any or all of which may be freely waived in
whole or in part by Mortgagee at any time if in its sole discretion such waiver
is deemed advisable. All such covenants of Mortgagor shall run with the land and
bind Mortgagor, the successors and assigns of Mortgagor (and each of them) and
all subsequent owners, encumbrancers and tenants of the Mortgaged Property, and
shall inure to the benefit of Mortgagee, and its respective successors and
assigns. The word "Mortgagor" shall be construed as if it read "Mortgagors"
whenever the sense of this Mortgage so requires and if there shall be more than
one Mortgagor, the obligations of the Mortgagors shall be joint and several.
31. No Waivers, etc. Any failure by Mortgagee to insist upon
the strict performance by Mortgagor of any of the terms and provisions of this
Mortgage shall not be deemed to be a waiver of any of the terms and provisions
hereof, and Mortgagee, notwithstanding any such failure, shall have the right
thereafter to insist upon the strict performance by Mortgagor of any and all of
the terms and provisions of this Mortgage to be performed by Mortgagor.
Mortgagee may release, regardless of consideration and without the necessity for
any notice to or consent by the mortgagee of any subordinate mortgage or the
holder of any subordinate lien on the Mortgaged Property, any part of the
security held for the obligations secured by this Mortgage without, as to the
remainder of the security, in anywise impairing or affecting the lien of this
Mortgage or the priority of such lien over any subordinate lien or mortgage.
32. Governing Law, etc. This Mortgage shall be governed by and
construed in accordance with the laws of the State in which the Premises are
located, except that Mortgagor expressly acknowledges that by its terms the
Credit Agreement shall be governed and construed in accordance with the laws of
the State of New York, without regard to principles of conflict of law, and for
purposes of consistency, Mortgagor agrees that in any in personam proceeding
related to this Mortgage the rights of the parties to this Mortgage shall also
be governed by and construed in accordance with the laws of the State of New
York governing contracts made and to be performed in that State, without regard
to principles of conflict of law.
33. Waiver of Trial by Jury. Mortgagor and Mortgagee each
hereby irrevocably and unconditionally waive trial by jury in any action, claim,
suit or proceeding relating to this Mortgage and for any counterclaim brought
therein.
34. Certain Definitions. Unless the context clearly indicates
a contrary intent or unless otherwise specifically provided herein, words used
in this Mortgage shall be used interchangeably in singular or plural form and
the word "Mortgagor" shall mean "each
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Mortgagor or any subsequent owner or owners of the Mortgaged Property or any
part thereof or interest therein," the word "Mortgagee" shall mean "Mortgagee or
any successor Administrative Agent," the word "Notes" shall mean "the notes that
may from time to time be given pursuant to the terms of the Credit Agreement or
any other evidence of indebtedness secured by this Mortgage," the word "person"
shall include any individual, corporation, partnership, trust, unincorporated
association, government, governmental authority, or other entity, and the words
"Mortgaged Property" shall include any portion of the Mortgaged Property or
interest therein. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice versa. The
captions in this Mortgage are for convenience or reference only and in no way
limit or amplify the provisions hereof.
35. Release of Lien. Upon payment in full of the Indebtedness,
the termination of all Obligations under the Credit Agreement secured hereby and
the compliance with the Obligations then required to be complied with, Mortgagee
shall release the encumbrance of this Mortgage. If any of the Mortgaged Property
shall be sold, transferred or otherwise disposed of by Mortgagor in a
transaction expressly permitted by the Credit Agreement, then Mortgagee shall
execute and deliver to Mortgagor (at the sole cost and expense of Mortgagor) all
releases, reconveyances or other documents reasonably necessary or desirable for
the release of such Mortgaged Property from the encumbrance of this Mortgage.
36. Conflict with Credit Agreement. In the event of any
conflict or inconsistency between the terms and provisions of this Mortgage and
the terms and provisions of the Credit Agreement, the terms and provisions of
the Credit Agreement shall govern, other than with respect to Section 20(b) and
Section 33 of this Mortgage captioned "Governing Law, etc.". By their execution
of the Credit Agreement, each Lender hereby agrees that it shall not have the
right to institute any suit for enforcement of Notes or any other Indebtedness
secured by this Mortgage or any other Security Document, if and to the extent
that the institution or prosecution thereof or the entry of judgment therein
would, under applicable law, result in the surrender, impairment, waiver or loss
of the Lien of this Mortgage or any other Security Document or impede or delay
the enforcement of the Lien of this Mortgage or any other Security Document.
37. Future Advances. To the extent that this Mortgage secures
future advances as contemplated by Minnesota Statutes Section 287.05, Subd. 5,
the amount of such advances is not currently known. The acceptance of this
Mortgage by the Mortgagee, however, constitutes an acknowledgment that the
Mortgagee is aware of the provisions of Minnesota Statutes Section 287.05, Subd.
5, and intends to comply with the requirements contained therein. The
representations contained in this Section 38 are made solely for the benefit of
county recording authorities in determining the mortgage registry tax payable as
a prerequisite
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31
to the recording of this Mortgage. Mortgagor acknowledges that such
representations do not constitute or imply an agreement by the Mortgagee to make
any future advances to Mortgagor, except pursuant to the Credit Agreement.
38. Revolving Credit Loans. A portion of the Indebtedness
secured by this Mortgage is a revolving line of credit under which advances,
payments and readvances may be made from time to time. The maximum aggregate
amount of the line of credit secured by this Mortgage is $7,053,000 plus those
amounts set forth in Section 2 hereof.
39. Non-Agricultural Use: Mortgagor represents and warrants
that as of the date of this Mortgage the Mortgaged Property is not in
agricultural use as defined in Minn. Statute Section 40A.02, Subd.3 and is not
used for agricultural purposes.
40. Maturity Date. The latest obligation secured by this
Mortgage matures on November 2, 2002.
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This Mortgage has been duly executed by Mortgagor on the date
first above written.
TELEX COMMUNICATIONS, INC.
By: /s/ XXXX X. XXXXXXXXX
------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
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33
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 5th
day of May, 1997, by Xxxx X. Xxxxxxxxx , the Vice President of TELEX
COMMUNICATIONS, INC., a Delaware corporation, on behalf of such corporation.
/s/ XXXXXXXX X. XXXXXXXX
------------------------
Notary Public
[Notarial Stamp]
34
EXHIBIT A
Legal Description
Lincoln, Lancaster Cty., NE
[See attached Schedule A]
35
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Xxxxxxxxx Xxxxxx
Schedule A
Legal Description
LOT THIRTY (30) OF IRREGULAR TRACTS IN THE SOUTHWEST QUARTER (SW 1/4) OF SECTION
35, TOWNSHIP 11 NORTH, RANGE 7 EAST OF THE 6TH P.M., LANCASTER COUNTY, NEBRASKA,
MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTH 1/16 CORNER OF
THE SOUTHWEST QUARTER OF SAID SECTION 35, THE POINT OF BEGINNING, THENCE NORTH
00 DEGREES 00 MINUTES 2549 FEET, THENCE SOUTHWESTERLY ALONG THE X.X.X. XXXX XX
X.X. XXXXXXX XX. 0 AT THE BEARING OF SOUTH 54 DEGREES 47 MINUTES WEST 1200.8
FEET, TO A POINT IN STEVENS CREEK, THENCE SOUTHEASTERLY ALONG STEVENS CREEK AT A
BEARING OF SOUTH 43 DEGREES 10 MINUTES EAST 289.8 FEET; THENCE SOUTHEASTERLY AT
A BEARING OF SOUTH 2 DEGREES 10 MINUTES EAST 185.0 FEET; THENCE SOUTHWESTERLY AT
A BEARING OF SOUTH 25 DEGREES 20 MINUTES WEST 80.00 FEET; THENCE SOUTHEASTERLY
AT A BEARING OF SOUTH 14 DEGREES 40 MINUTES EAST 127.0 FEET; CONTINUING
SOUTHEASTERLY AT A BEARING OF SOUTH 64 DEGREES 11 MINUTES EAST 388.0 FEET;
THENCE SOUTHWESTERLY AT A BEARING SOUTH 16 DEGREES 4 MINUTES WEST 92 FEET,
CONTINUING SOUTHWESTERLY AT A BEARING OF SOUTH 74 DEGREES 49 MINUTES WEST 117
FEET, CONTINUING SOUTHWESTERLY AT A BEARING OF SOUTH 25 DEGREES 50 MINUTES WEST
144 FEET, THENCE SOUTHEASTERLY AT BEARING OF SOUTH 21 DEGREES 40 MINUTES EAST
123 FEET, CONTINUING SOUTHEASTERLY AT A BEARING OF SOUTH 59 DEGREES 24 MINUTES
EAST 143 FEET, CONTINUING SOUTHEASTERLY AT A BEARING OF SOUTH 23 DEGREES 24
MINUTES EAST 328 FEET; THENCE SOUTHWESTERLY AT A BEARING OF 36 DEGREES 6 MINUTES
WEST 447 FEET; THENCE EAST AT A BEARING NORTH 89 DEGREES 54 MINUTES EAST 593.4
FEET, ALONG THE SOUTH LINE OF SAID SECTION 35 TO THE POINT OF BEGINNING, EXCEPT
THE FOLLOWING DESCRIBED TRACTS OF LAND: COMMENCING AT THE SOUTHEAST CORNER OF
SAID WEST HALF OF THE SOUTHWEST QUARTER; THENCE WESTERLY ALONG THE SOUTH LINE OF
SAID WEST HALF OF THE SOUTHWEST QUARTER, A DISTANCE OF 390 FEET, TO THE POINT OF
BEGINNING; THENCE CONTINUING WESTERLY, ALONG THE LAST DESCRIBED COURSE, A
DISTANCE OF 179.33 FEET; THENCE NORTHEASTERLY, ALONG THE CENTERLINE OF STEVENS
CREEK A DISTANCE OF 45.9 FEET; THENCE EASTERLY, 37.0 FEET NORTHERLY OF AND
PARALLEL WITH THE SOUTH LINE OF SAID WEST HALF OF THE SOUTHWEST QUARTER, A
DISTANCE OF 152.23 FEET; THENCE SOUTHERLY, A DISTANCE OF 37.0 FEET, TO THE POINT
OF BEGINNING; ALSO EXCEPT THE FOLLOWING DESCRIBED TRACT OF LAND:
36
COMMENCING AT THE NORTHWEST CORNER OF THE SAID WEST HALF OF THE SOUTHWEST
QUARTER, THENCE EASTERLY, ALONG THE NORTH LINE OF SAID WEST HALF OF THE
SOUTHWEST QUARTER, A DISTANCE OF 1305.92 FEET; THENCE SOUTHERLY, ON AN ANGLE OF
90 DEGREES 08 MINUTES RIGHT, A DISTANCE OF 86.99 FEET, TO THE POINT OF
BEGINNING; THENCE CONTINUING SOUTHERLY, ALONG THE LAST DESCRIBED COURSE, A
DISTANCE OF 18.37 FEET; THENCE SOUTHWESTERLY ON AN ANGLE OF 54 DEGREES 44
MINUTES RIGHT, A DISTANCE OF 547.81 FEET; THENCE SOUTHWESTERLY, ON AN ANGLE OF 2
DEGREES 52 MINUTES RIGHT, A DISTANCE OF 300.37 FEET, TO A POINT ON THE
SOUTHEASTERLY HIGHWAY 6 RIGHT-OF-WAY LINE; THENCE NORTHWESTERLY, ON AN ANGLE OF
177 DEGREES 08 MINUTES RIGHT A DISTANCE OF 858.42 FEET TO THE POINT OF
BEGINNING.
2
37
EXHIBIT B
Title Commitment
Lincoln, Lancaster Cty., NE
Title Commitment No. C-71083, redated as of the date hereof, prepared by Chicago
Title Insurance Company.
00
XXXXXXXXX
XXXXX XX XXX XXXX )
) ss.
COUNTY OF NEW YORK )
Xxxx X. Xxxxxxxxx, being first duly sworn upon oath, depose
and says that he/she is the Vice President of Telex Communications, Inc., a
Delaware corporation, and that to the best of his/her knowledge, Telex
Communications, Inc., formerly TCI Acquisition Corp., a Delaware corporation is
the owner of record of the following described real estate, to-wit:
See EXHIBIT "A" attached hereto and made a part hereof.
and that Telex Communications, Inc., a Delaware corporation, is now in
possession thereof.
This Affidavit is made solely for the benefit of Chicago Title
Insurance Company ("Chicago Title"), and no person or entity other than Chicago
Title shall have or acquire any rights under or by reason of this Affidavit.
This Affidavit is given upon this condition that upon delivery
to Chicago Title of a corrective deed from Telex Communications, Inc. to TCI
Acquisition Corp. with the legal description attached hereto as EXHIBIT "A" to
correct the legal description contained in that certain Special Warranty Deed,
dated May 22, 1989, recorded May 30, 1989 as instrument number 89-14109 in the
real estate records of Lancaster County, all rights of Chicago Title under this
Affidavit shall terminate.
/s/ XXXX X. XXXXXXXXX
Subscribed and sworn to before me this 5 day of May, 1997.
/s/ XXXXXXXX X. XXXXXXXX
Notary Public
[Notarial Stamp]
39
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Xxxxxxxxx Xxxxxx
Schedule A
Legal Description
LOT THIRTY (30) OF IRREGULAR TRACTS IN THE SOUTHWEST QUARTER (SW 1/4) OF SECTION
35, TOWNSHIP 11 NORTH, RANGE 7 EAST OF THE 6TH P.M., LANCASTER COUNTY, NEBRASKA,
MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTH 1/16 CORNER OF
THE SOUTHWEST QUARTER OF SAID SECTION 35, THE POINT OF BEGINNING, THENCE NORTH
00 DEGREES 00 MINUTES 2549 FEET, THENCE SOUTHWESTERLY ALONG THE X.X.X. XXXX XX
X.X. XXXXXXX XX. 0 AT THE BEARING OF SOUTH 54 DEGREES 47 MINUTES WEST 1200.8
FEET, TO A POINT IN STEVENS CREEK, THENCE SOUTHEASTERLY ALONG STEVENS CREEK AT A
BEARING OF SOUTH 43 DEGREES 10 MINUTES EAST 289.8 FEET; THENCE SOUTHEASTERLY AT
A BEARING OF SOUTH 2 DEGREES 10 MINUTES EAST 185.0 FEET; THENCE SOUTHWESTERLY AT
A BEARING OF SOUTH 25 DEGREES 20 MINUTES WEST 80.00 FEET; THENCE SOUTHEASTERLY
AT A BEARING OF SOUTH 14 DEGREES 40 MINUTES EAST 127.0 FEET; CONTINUING
SOUTHEASTERLY AT A BEARING OF SOUTH 64 DEGREES 11 MINUTES EAST 388.0 FEET;
THENCE SOUTHWESTERLY AT A BEARING SOUTH 16 DEGREES 4 MINUTES WEST 92 FEET,
CONTINUING SOUTHWESTERLY AT A BEARING OF SOUTH 74 DEGREES 49 MINUTES WEST 117
FEET, CONTINUING SOUTHWESTERLY AT A BEARING OF SOUTH 25 DEGREES 50 MINUTES WEST
144 FEET, THENCE SOUTHEASTERLY AT BEARING OF SOUTH 21 DEGREES 40 MINUTES EAST
123 FEET, CONTINUING SOUTHEASTERLY AT A BEARING OF SOUTH 59 DEGREES 24 MINUTES
EAST 143 FEET, CONTINUING SOUTHEASTERLY AT A BEARING OF SOUTH 23 DEGREES 24
MINUTES EAST 328 FEET; THENCE SOUTHWESTERLY AT A BEARING OF 36 DEGREES 6 MINUTES
WEST 447 FEET; THENCE EAST AT A BEARING NORTH 89 DEGREES 54 MINUTES EAST 593.4
FEET, ALONG THE SOUTH LINE OF SAID SECTION 35 TO THE POINT OF BEGINNING, EXCEPT
THE FOLLOWING DESCRIBED TRACTS OF LAND: COMMENCING AT THE SOUTHEAST CORNER OF
SAID WEST HALF OF THE SOUTHWEST QUARTER; THENCE WESTERLY ALONG THE SOUTH LINE OF
SAID WEST HALF OF THE SOUTHWEST QUARTER, A DISTANCE OF 390 FEET, TO THE POINT OF
BEGINNING; THENCE CONTINUING WESTERLY, ALONG THE LAST DESCRIBED COURSE, A
DISTANCE OF 179.33 FEET; THENCE NORTHEASTERLY, ALONG THE CENTERLINE OF STEVENS
CREEK A DISTANCE OF 45.9 FEET; THENCE EASTERLY, 37.0 FEET NORTHERLY OF AND
PARALLEL WITH THE SOUTH LINE OF SAID WEST HALF OF THE SOUTHWEST QUARTER, A
DISTANCE OF 152.23 FEET; THENCE SOUTHERLY, A DISTANCE OF 37.0 FEET, TO THE POINT
OF BEGINNING; ALSO EXCEPT THE FOLLOWING DESCRIBED TRACT OF LAND:
40
COMMENCING AT THE NORTHWEST CORNER OF THE SAID WEST HALF OF THE SOUTHWEST
QUARTER, THENCE EASTERLY, ALONG THE NORTH LINE OF SAID WEST HALF OF THE
SOUTHWEST QUARTER, A DISTANCE OF 1305.92 FEET; THENCE SOUTHERLY, ON AN ANGLE OF
90 DEGREES 08 MINUTES RIGHT, A DISTANCE OF 86.99 FEET, TO THE POINT OF
BEGINNING; THENCE CONTINUING SOUTHERLY, ALONG THE LAST DESCRIBED COURSE, A
DISTANCE OF 18.37 FEET; THENCE SOUTHWESTERLY ON AN ANGLE OF 54 DEGREES 44
MINUTES RIGHT, A DISTANCE OF 547.81 FEET; THENCE SOUTHWESTERLY, ON AN ANGLE OF 2
DEGREES 52 MINUTES RIGHT, A DISTANCE OF 300.37 FEET, TO A POINT ON THE
SOUTHEASTERLY HIGHWAY 6 RIGHT-OF-WAY LINE; THENCE NORTHWESTERLY, ON AN ANGLE OF
177 DEGREES 08 MINUTES RIGHT A DISTANCE OF 858.42 FEET TO THE POINT OF
BEGINNING.
2
