Exhibit 10.8.9
NRG GENERATING (XXXXXX) COGENERATION INC.,
as Mortgagor
to
CREDIT SUISSE, AS AGENT FOR THE SECURED PARTIES,
as Mortgagee
LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND
RENTS AND SECURITY AGREEMENT
(Leasehold and Easements)
Dated: As of June 28, 1996
Location: Part of Xxx 0, Xxxxx 00
xxx Xxx 0.00, Xxxxx 00 Xxxxxxx of Sayreville County of
Middlesex State of New Jersey
RECORD AND RETURN TO:
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
MIDDLESEX COUNTY, NEW JERSEY
This instrument prepared by:
/s/ Xxxxxxxxxxx X. Xxxxx
Name: Xxxxxxxxxxx X. Xxxxx
LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND
RENTS AND SECURITY AGREEMENT
THIS LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND
SECURITY AGREEMENT (this "Mortgage") made as of the 28th day of June, 1996
by NRG GENERATING (XXXXXX) COGENERATION INC., a Delaware corporation having
an address at c/o NRG Energy, Inc., 0000 Xxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxxxx 00000 ("Mortgagor") and CREDIT SUISSE having an
address at Tower 49, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as
agent (in such capacity, "Agent") on behalf of and for the benefit of the
Secured Parties under the Credit Agreement (defined below) (the Agent,
acting on its own behalf and on behalf of the Secured Parties pursuant to
the Credit Agreement being hereinafter referred to as "Mortgagee"),
W I T N E S S E T H :
WHEREAS, Mortgagor is the owner and holder of a leasehold estate
in the premises described in Exhibit A attached hereto (hereinafter
referred to as the "Leasehold Premises") pursuant to a certain Ground Lease
dated as of January 2, 1987 between E. I. Du Pont de Nemours and Company
and O'Brien Energy Systems, Inc., a memorandum of which was recorded in the
Middlesex County Clerk's office on December 15, 1988, in Deed Book 3751,
page 4 (hereinafter referred to as the "Ground Lease");
WHEREAS, Mortgagor is also the holder of the those easement
rights pursuant to the instruments described in Exhibit B attached hereto
(collectively, the "Easements"), which Easements pertain to the premises,
or to portions thereof, described therein (collectively, the "Easement
Premises" and together with the Leasehold Premises being hereinafter
collectively referred to as the "Premises");
WHEREAS, Mortgagor proposes to operate on the Premises an
existing 122 MW power plant, including the related electric power
transmission, fuel supply and fuel transportation facilities, fuel storage
facilities and other facilities and goods that are ancillary, incidental,
necessary or reasonably related to the marketing, management, servicing,
ownership or operation of the foregoing (the "Xxxxxx Plant");
WHEREAS, Mortgagee has simultaneously herewith extended to Mortgagor
and NRG Generating (Newark) Cogeneration Inc. ("NRG (Newark)"; Mortgagor
and NRG (Newark) being hereinafter collectively referred to as
"Borrowers") (i) certain loans in the aggregate principal amount of ONE
HUNDRED FIFTY-FIVE MILLION and No/100 DOLLARS ($155,000,000) (collectively,
the "Funding Loans") and (ii) a certain debt service line of credit
facility commitment in the principal amount of up to FIVE MILLION and
No/100 DOLLARS ($5,000,000) (the "Debt Service Loans"), which (a) Funding
Loans are to be advanced pursuant and subject to the terms and conditions
of a certain Credit Agreement dated as of May 17, 1996 among Mortgagee,
Credit Suisse, Greenwich Funding Corporation and any other Purchasing
Lender and the Borrowers (as the same may be amended, modified or
supplemented from time to time, the "Credit Agreement") and shall be
evidenced by the Funding Loan Notes, and (b) Debt Service Loans are to be
advanced pursuant and subject to the terms and conditions of the Credit
Agreement and shall be evidenced by the Debt Service Loan Notes, and which
Funding Loans and Debt Service Loans shall be secured, in part, by this
Mortgage;
WHEREAS, the Borrowers are to be jointly and severally liable for
the repayment of the Funding Loans and the Debt Service Loans;
WHEREAS, all capitalized terms not otherwise defined in this
Mortgage shall have the meaning given such terms in the Credit Agreement;
WHEREAS, it is a condition precedent to the making of certain of
the Funding Loans and the availability of the Debt Service Loans under the
Credit Agreement that Mortgagor shall execute and deliver this Mortgage and
grant the security interests pursuant to this Mortgage to the Agent for the
benefit of the Secured Parties as security for the obligations of Borrowers
under the Credit Agreement and the other Loan Instruments;
NOW, THEREFORE, to secure the payment and performance of the Debt
(hereinafter defined) and the performance of the Borrowers' obligations
under the Credit Agreement and the Loan Instruments and the performance of
the Mortgagor's obligations under this Mortgage, Mortgagor has mortgaged,
given, granted, bargained, sold, aliened, enfeoffed, conveyed, confirmed
and assigned, and by these presents does mortgage, give, grant, bargain,
sell, alien, enfeoff, convey, confirm and assign unto Mortgagee all right,
title and interest of Mortgagor now owned, or hereafter acquired, in and to
the following property, rights and interests (such property, rights and
interests being hereinafter collectively referred to as the "Mortgaged
Property"):
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(a) the Leasehold Premises;
(b) all buildings, improvements and fixtures now or hereafter located
on the Leasehold Premises, including, but not limited to, the Xxxxxx Plant
(the "Leasehold Premises Improvements");
(c) the Ground Lease and the leasehold estate created thereunder and
all other rights and interests of the tenant thereunder;
(d) all modifications, extensions and renewals of the Ground Lease
and all credits, deposits, options, privileges and rights of tenant under
the Ground Lease, including, but not limited to, the right to exercise
options, to give consents and to receive moneys payable to the tenant
thereunder or in connection therewith;
(e) the Easements and the interests created thereunder and in
connection therewith;
(f) any and all portions of the Xxxxxx Plant now or hereafter located
on the Easement Premises (the "Easement Improvements" and, together with
the Leasehold Premises Improvements, being hereinafter collectively
referred to as the "Improvements");
(g) all the estate, right, title, claim or demand of any nature
whatsoever of Mortgagor, either in law or in equity, in possession or
expectancy, in and to the Mortgaged Property or any part thereof;
(h) any and all easements (other than the Easements), rights-of-way,
gores of land, streets, ways, alleys, passages, sewer rights, waters, water
courses, water rights and powers, and all estates, rights, titles,
interests, privileges, liberties, tenements, hereditaments, revocable
consents, options, appendages and appurtenances of any nature whatsoever,
in any way belonging, relating or pertaining to the Mortgaged Property
(including, but not limited to, any and all development rights, option
rights, air rights or similar or comparable rights of any nature whatsoever
now or hereafter appurtenant to the Premises or now or hereafter
transferred to the Premises) and all land lying in the bed of any street,
road or avenue, opened or proposed, in front of or adjoining the Premises
to the center line thereof;
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(i) all machinery, apparatus, equipment, fittings, fixtures and other
property of every kind and nature whatsoever owned by Mortgagor, or in
which Mortgagor has or shall have an interest, now or hereafter located
upon the Premises, or appurtenant thereto, and usable in connection with
the present or future operation and occupancy of the Mortgaged Property and
all equipment, materials, supplies, apparatus and other items now or
hereafter attached to, installed in or used on the Premises (temporarily or
permanently) of any nature whatsoever and all renewals, replacements and
substitutions thereof and additions thereto, including but not limited to
any and all partitions, ducts, shafts, pipes, radiators, conduits, wiring,
floor coverings, awnings, motors, engines, boilers, stokers, pumps,
dynamos, transformers, turbines, generators, fans, blowers, vents,
switchboards, elevators, mail or coal conveyors, escalators, compressors,
furnaces, cleaning equipment, call and sprinkler systems, fire
extinguishing apparatus, water and other tanks, heating, ventilating,
plumbing, laundry, incinerating, air conditioning and air cooling systems
and water, gas, telephone, telecommunications, telemetry and electric
equipment (collectively, the "Equipment"), and the right, title and
interest of Mortgagor in and to any of the Equipment which may be subject
to any security agreements (as defined in the Uniform Commercial Code of
the State of New Jersey (the "Uniform Commercial Code")), superior in lien
to the lien of this Mortgage;
(j) all awards or payments, including interest thereon, and the right
to receive the same, which may be made with respect to the Mortgaged
Property, whether from state fund sharing or from the exercise of the right
of eminent domain (including any transfer made in lieu of the exercise of
said right), changes of grade of street or for any other injury to or
decrease in the value of the Mortgaged Property, whether direct or
consequential, which said awards and payments are hereby assigned to
Mortgagee, and Mortgagee is hereby authorized to collect and receive the
proceeds thereof and to give proper receipts and acquittances therefor;
(k) all refunds or rebates of Taxes (as hereinafter defined) or
charges in lieu of Taxes, now or hereafter assessed or levied against the
Mortgaged Property;
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(1) all leases (including oil, gas and other mineral leases),
subleases, franchises, licenses, concessions, permits, contracts
(including, without limitation, the Xxxxxx Power Purchase Agreement and the
Xxxxxx Steam Agreement) and other agreements (other than the Ground Lease
and the Easements) affecting the use or occupancy of the Mortgaged Property
now or hereafter entered into and any renewals or extensions thereof
(collectively, the "Other Leases");
(m) the right to receive and apply the rents, issues and profits of
the Mortgaged Property under the Other Leases (collectively, the "Rents")
to the payment of the Debt;
(n) all inventory, accounts and general intangibles owned by
Mortgagor or in which Mortgagor now or hereafter shall have any right,
title or interest, now or hereafter located upon, arising in connection
with or concerning the Mortgaged Property;
(o) all proceeds of and any unearned premiums on any insurance
policies covering the Mortgaged Property, including, without limitation,
the right to receive and apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the Mortgaged Property;
(p) to the extent permitted by law, the right, in the name and on
behalf of Mortgagor, to appear in and defend any action or proceeding
brought with respect to the Mortgaged Property and to commence any action
or proceeding to protect the interest of Mortgagee in the Mortgaged
Property;
(q) all of Mortgagor's right, title and interest in and to all plans
and specifications prepared for or in connection with the Improvements and
all studies, data and drawings related thereto; and
(r) all products and proceeds of any of the Mortgaged Property herein
described.
TO HAVE AND TO HOLD the above granted and described Mortgaged Property
unto and to the proper use and benefit of Mortgagee, and the successors and
assigns of Mortgagee, forever, to secure the following obligations
(hereinafter collectively referred to as the "Debt"):
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(i) payment of the indebtedness evidenced by the Funding Loan Notes;
(ii) payment of the indebtedness evidenced by the Debt Service Loan
Notes (the Funding Loan Notes and the Debt Service Loan Notes being
hereinafter collectively referred to as the "Notes");
(iii) payment of all amounts owing pursuant to any Interest Rate Hedge
Agreement;
(iv) payment, performance and observance of each term, covenant and
condition to be paid, performed or observed by Borrowers under the Credit
Agreement, the Notes and the other Loan Instruments;
(v) payment of all sums required to be paid and performance and
observance of each term, covenant and condition contained in this Mortgage
to be performed or observed by Mortgagor under this mortgage; and
(vi) payment of all sums expended or advanced by Mortgagee pursuant to
the terms of this Mortgage, the Credit Agreement or any other Loan
Instruments.
PROVIDED, ALWAYS, and these presents are upon this express
condition, if Borrowers shall well and truly pay to Mortgagee the Debt at
the time and in the manner provided in the Notes, the Credit Agreement and
the Loan Instruments and shall well and truly abide by and comply with each
and every covenant and condition set forth herein, in the Notes, the Credit
Agreement and the Loan Instruments then these presents and the estate
hereby granted shall cease, determine and be void.
AND Mortgagor covenants with and represents and warrants to
Mortgagee as follows:
1. Payment of Debt. Mortgagor shall pay the Debt at the time
and in the manner provided for its payment in the Notes, the Credit
Agreement and the Loan Instruments.
2. Warranty of Title. Subject only to the Permitted Liens,
Mortgagor warrants that Mortgagor is the owner and holder of W a leasehold
estate in and to the Leasehold Premises, (ii) the right to use and enjoy
the Easements, (iii) marketable title to the improvements and Equipment,
and (iv) good title to all other portions of the Mortgaged Property.
Mortgagor covenants that Mortgagor will at all times and at Mortgagor's
sole expense warrant and
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defend the title to the Mortgaged Property against the claims and demands
of all persons whomsoever except for Permitted Liens. In addition,
Mortgagor represents and warrants that (i) the Ground Lease is in full
force and effect and has not been modified or amended in any manner
whatsoever, (ii) there are no uncured defaults under the Ground Lease and
no event has occurred, which but for the passage of time, or notice, or
both, would constitute a default under the Ground Lease, (iii) all rents
and other payments due and payable under the Ground Lease have been paid in
full and (iv) no action is pending and no notice has been given or received
for the purpose of terminating, and no event has occurred or condition
exists that could result in termination of, the Ground Lease.
3. Insurance. Mortgagor will keep the Improvements and the
Equipment insured as shall, from time to time, be required in accordance
with Sections 4.25 and 5.12 of the Credit Agreement. If at any time
Mortgagee is not in receipt of written evidence that all insurance required
hereunder and under the Credit Agreement is in full force and effect,
Mortgagee shall have the right without notice to Mortgagor to take such
action as Mortgagee deems necessary to protect the Mortgaged Property,
including, without limitation, the obtaining of such insurance coverage as
Mortgagee in its sole discretion deems appropriate, and all expenses
incurred by Mortgagee in connection with such action or in obtaining such
insurance and keeping it in effect shall be paid by Mortgagor to Mortgagee
upon demand. Any amounts not so paid by Mortgagor shall be deemed secured
by this Mortgage. Mortgagor shall at all times comply with and shall cause
the Improvements and Equipment and the use, occupancy, operation,
maintenance, alteration, repair and restoration thereof to comply with the
terms, conditions, stipulations and requirements of the insurance policies
procured and maintained pursuant to Sections 4.25 and 5.12 of the Credit
Agreement (the "Policies"). If the Premises, or any portion thereof, is
determined to be located in a Federally designated "special flood hazard
area", in addition to the other Policies required under this paragraph, a
flood insurance policy shall be delivered by Mortgagor to Mortgagee. If no
portion of the Premises is located in a Federally designated "special flood
hazard area", such fact shall be substantiated by a certificate in form
reasonably satisfactory to Mortgagee from a licensed surveyor, appraiser or
professional engineer or other qualified person. If the Mortgaged Property
shall be damaged or destroyed, in whole or in part, by fire or other
property hazard or casualty, Mortgagor shall give prompt notice thereof to
Mortgagee and any Proceeds received by
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Mortgagee shall be held and disbursed as set forth in Section 5.18 of the
Credit Agreement.
4. Payment of Taxes, etc. Mortgagor shall pay, or cause to be
paid, all taxes or charges in lieu of taxes, assessments, water rates,
sewer rents and other charges, including vault charges and license or
permit fees for the use of vaults, chutes and similar areas on or adjoining
the Premises, now or hereafter levied or assessed against the Mortgaged
Property (the "Taxes") prior to the date upon which any fine, penalty,
interest or cost may be added thereto or imposed by law for the nonpayment
thereof, subject, in all events, to Mortgagor's rights to contest Taxes in
accordance with Section 5.13 of the Credit Agreement. Mortgagor shall
deliver to Mortgagee, upon request, receipted bills, canceled checks and
other evidence satisfactory to Mortgagee evidencing the payment of the
Taxes prior to the date upon which any fine, penalty, interest or cost may
be added thereto or imposed by law for the nonpayment thereof (as any such
date may be extended pursuant to exercise of said right of Mortgagor to
contest Taxes in accordance with Section 5.13 of the Credit Agreement).
5. Condemnation. Notwithstanding any taking by any public or
quasi-public authority through eminent domain or otherwise, Mortgagor shall
continue to pay the Debt at the time and in the manner provided for its
payment in the Notes, the Credit Agreement and the Loan Instruments and the
Debt shall not be reduced until (and only to the extent) any award or
payment therefor shall have been actually received and applied by Mortgagee
to the discharge of the Debt in accordance with the provisions of the
Credit Agreement. Mortgagee shall apply the amount of any such award or
payment in accordance with Section 5.18 of the Credit Agreement. If the
Mortgaged Property is sold, through foreclosure or otherwise, prior to the
receipt by Mortgagee of such award or payment, Mortgagee shall have the
right, whether or not a deficiency judgment on the Debt shall have been
sought, recovered or denied, to receive such award or payment, or a portion
thereof sufficient to pay the Debt, whichever is less. Mortgagor shall
file and prosecute its claim or claims for any such award or payment in
good faith and with due diligence and cause the same to be collected and
paid over to Mortgagee. Mortgagor hereby irrevocably authorizes and
empowers Mortgagee, in the name of Mortgagor or otherwise to collect and
receipt for any such award or payment and to file and prosecute such claim
or claims if (a) Mortgagor fails to do so within a reasonable time prior to
the expiration of the period allowed therefor under
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applicable law, or (b) an Event of Default has occurred and is continuing.
Although it is hereby expressly agreed that the same shall not be necessary
in any event, Mortgagor shall, upon demand of Mortgagee, make, execute and
deliver any and all assignments and other instruments sufficient for the
purpose of assigning any such award or payment to Mortgagee, free and clear
of any encumbrances of any kind or nature whatsoever.
6. Leases and Rents. (a) Mortgagor hereby assigns to Mortgagee
as security for the payment of the Debt and the observance and performance
by Borrowers of all of the terms, covenants and provisions of this
Mortgage, the Credit Agreement and the Loan Instruments on the Borrowers'
part to be observed or performed, all of Mortgagor's right, title and
interest in and to the Other Leases and the Rents. Subject to the terms of
this paragraph, Mortgagee waives the right to enter the Mortgaged Property
for the purpose of collecting the Rents, and grants Mortgagor the right to
collect the Rents. Mortgagor shall hold the Rents, or an amount sufficient
to discharge all sums then currently due on the Debt, in trust for use in
payment of the Debt. The right of Mortgagor to collect the Rents may be
revoked by Mortgagee upon the occurrence of any Event of Default by giving
notice of such revocation to Mortgagor. Following such notice, Mortgagee
may retain and apply the Rents toward payment of the Debt in accordance
with the provisions of the Credit Agreement, or to the operation,
maintenance and repair of the Mortgaged Property, and irrespective of
whether Mortgagee shall have commenced a foreclosure of this Mortgage or
shall have applied or arranged for the appointment of a receiver.
Mortgagor shall not, without the consent of Mortgagee, which consent shall
not be unreasonably withheld, conditioned or delayed, make, or suffer to be
made, any Other Leases or modify or cancel any Other Leases or accept
prepayments of installments of the Rents for a period of more than one (1)
month in advance or
further assign the whole or any part of the Rents. Mortgagor shall (i)
fulfill or perform each and every provision of the Other Leases on the part
of Mortgagor to be fulfilled or performed, (ii) promptly send copies of all
notices of default which Mortgagor shall send or receive under the Other
Leases to Mortgagee, and (iii) enforce, short of termination of the Other
Leases, the performance or observance of the provisions thereof by the
other parties thereto.
(b) Mortgagor agrees that it will not further pledge or assign
its interest in any of the Other Leases, or
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further assign the Rents so long as any part of the Debt
remains unpaid.
(c) Nothing contained in this paragraph shall be construed as
imposing on Mortgagee any of the obligations of the tenant under the Ground
Lease or of the lessor under the Other Leases.
7. Maintenance of the Mortgaged Property.
(a) Mortgagor shall cause the Mortgaged Property to be
maintained in good condition and-repair in accordance with the provisions
of the Credit Agreement and will not commit or suffer to be committed any
waste of the Mortgaged Property. The Improvements and the Equipment shall
not be removed, demolished or materially altered (except for normal
replacement of the Equipment), without the consent of Mortgagee, which
consent shall not be unreasonably withheld, conditioned or delayed.
(b) Mortgagor shall promptly comply with all Laws and
Environmental Requirements affecting the Mortgaged Property, or any portion
thereof or the use thereof, in accordance with the provisions of the Credit
Agreement. Mortgagor shall observe and perform every term to be observed
and performed by Mortgagor (as tenant) under the Ground Lease and shall
also comply with the requirements of the Easements and all other rights-of-
way, easements, grants, privileges, licenses, franchises and restrictive
covenants which from time to time benefit or pertain to the whole or any
portion of the Mortgaged Property, and Mortgagor shall not modify, amend or
terminate, or surrender any of its rights under, the Ground Lease, the
Easements or any such rights-of-way, easements, grants, privileges,
licenses, franchises or restrictive covenants. Except as otherwise
specifically permitted by the terms of the Credit Agreement, Mortgagor will
not alter the use of the Mortgaged Property without the prior consent of
Mortgagee, and Mortgagor will not, without obtaining the prior consent of
Mortgagee, initiate, join in or consent to any private restrictive
covenant, zoning ordinance, or other public or private restrictions,
limiting or affecting the uses which may be made of the Mortgaged Property
or any part thereof.
8. Estoppel Certificates. Mortgagor, within ten (10) days
after request by Mortgagee and at its expense, will furnish Mortgagee with
a statement, duly acknowledged and certified, setting forth the amount of
the Debt and the offsets or defenses thereto, if any.
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9. Transfer or Encumbrance of the Mortgaged Property. Except
as otherwise specifically permitted by the terms of the Credit Agreement,
no part of the Mortgaged Property and no legal or beneficial interest in
Mortgagor shall in any manner be further encumbered, sold, transferred,
assigned or conveyed, or permitted to be further encumbered, sold,
transferred, assigned or conveyed without the consent of Mortgagee. The
provisions of this paragraph shall apply to each and every such further
encumbrance, sale, transfer, assignment or conveyance, regardless of
whether or not Mortgagee has consented to, or waived by its action or
inaction its rights hereunder with respect to any such previous further
encumbrance, sale, transfer, assignment or conveyance and irrespective of
whether such further encumbrance, sale, transfer, assignment or conveyance
is voluntary, by reason of operation of law or is otherwise made.
10. Notice. All notices, consents, directions, approvals,
authorizations, instructions, demands, statements, requests and other
communications given or made hereunder or in connection herewith shall be
sent in accordance with the provisions of and to the addresses set forth in
Section 8.1 of the Credit Agreement.
11. Changes in Laws Regarding Taxation. In the event of the
passage after the date of this Mortgage of any law of the State of New
Jersey deducting from the value of real property for the purpose of
taxation any lien or encumbrance thereon or changing in any way the laws
for the taxation of mortgages or deeds of trust or debts secured by
mortgages or deeds of trust for state or local purposes or the manner of
the collection of any such taxes, and imposing a tax, either directly or
indirectly, on this Mortgage, the Notes, the Credit Agreement, any of the
Loan Instruments or the Debt, Mortgagor shall, if permitted by law, pay any
tax imposed as a result of any such law within the statutory period or
within thirty (30) days after demand by Mortgagee, whichever is less,
provided, however, that if, in the opinion of the attorneys for Mortgagee,
Mortgagor is not permitted by law to pay such taxes, Mortgagee shall have
the right, at its option, to declare the Debt due and payable on a date
specified in a prior notice to Mortgagor of not less than sixty (60) days.
12. [Intentionally Omitted]
13. Sale of Mortgaged Property. If this Mortgage is foreclosed,
the Mortgaged Property, or any interest therein, may, at the discretion of
Mortgagee, be sold in one
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or more parcels or in several interests or portions and in any order or
manner.
14. No Credits on Account of the Debt. Mortgagor will not claim
or demand or be entitled to any credit or credits on account of the Debt
for any part of the Taxes assessed against the Mortgaged Property or any
part thereof and no deduction shall otherwise be made or claimed from the
taxable value of the Mortgaged Property, or any part thereof, by reason of
this Mortgage or the Debt.
15. Other Security for the Debt. Mortgagor shall observe and
perform all of the terms, covenants and provisions on the part of Mortgagor
to be observed and performed contained in the Credit Agreement and the Loan
Instruments and in all other mortgages and other instruments or documents
evidencing, securing or guaranteeing payment of the Debt, in whole or in
part, or otherwise executed and delivered in connection with the Credit
Agreement, the Notes or this Mortgage.
16. Documentary Stamps. If at any time the United States of
America, any state thereof or any governmental subdivision of any such
state, shall require revenue or other stamps to be affixed to the Notes or
this Mortgage, Mortgagor will pay the same, with interest and penalties
thereon, if any.
17. Right of Entry. Mortgagee and its agents shall have the
right to enter and inspect the Mortgaged Property as provided in the Credit
Agreement.
18. Books and Records. Mortgagor will comply with all of the
provisions and requirements of the Credit Agreement concerning its books,
records and accounts reflecting the financial affairs of Mortgagor and the
Xxxxxx Plant.
19. Ground Lease.
(a) Mortgagor shall (i) pay all rents, additional rents and
other sums required to be paid by the tenant under and pursuant to the
provisions of the Ground Lease, (ii) diligently perform and observe all of
the terms, covenants and conditions of the Ground Lease on the part of the
tenant thereunder to be performed and observed, unless such performance or
observance shall be waived or not required by the landlord under the Ground
Lease, to the end that all things shall be done which are necessary to keep
unimpaired the rights of the tenant under the Ground Lease,
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and (iii) promptly notify Mortgagee of the giving of any notice by the
landlord under the Ground Lease of any default in the performance or
observance of any of the terms, covenants or conditions of the Ground Lease
on the part of the tenant thereunder to be performed or observed and
deliver to Mortgagee a true copy of each such notice. Mortgagor shall not,
without the prior consent of Mortgagee, which consent shall not be
unreasonably withheld, conditioned or delayed, surrender the leasehold
estate created by the Ground Lease or terminate or cancel the Ground Lease
or modify, change, supplement, alter or amend the Ground Lease, in any
respect, either orally or in writing, and Mortgagor hereby assigns to
Mortgagee, as further security for the payment of the Debt and for the
performance and observance of the terms, covenants and conditions of this
Mortgage, the Credit Agreement and the other Loan Instruments, all of the
rights, privileges and prerogatives of the tenant under the Ground Lease to
surrender any leasehold estate or easement interests created by the Ground
Lease or to terminate, cancel, modify, change, supplement, alter or amend
the Ground Lease, and any such surrender of the leasehold estate or
easement interests created by the Ground Lease or termination,
cancellation, modification, change, supplement, alteration or amendment of
the Ground Lease without the prior consent of Mortgagee, shall be void and
of no force and effect. If Mortgagor shall default in the performance or
observance of any term, covenant or condition of the Ground Lease to be
performed or observed by the tenant thereunder, then, without limiting the
generality of the other provisions of this Mortgage, and without waiving or
releasing Mortgagor from any of its obligations hereunder, Mortgagee shall
have the right, but shall be under no obligation, to pay any sums and to
perform any act or take any action as may be appropriate to cause all of
the terms, covenants and conditions of the Ground Lease on the part of the
tenant thereunder to be performed or observed, to be promptly performed or
observed on behalf of Mortgagor, to the end that the rights of Mortgagor
in, to and under the Ground Lease shall be kept unimpaired and free from
default. If Mortgagee shall make any payment or perform any act or take
action in accordance with the preceding sentence, Mortgagee will notify
Mortgagor of the making of any such payment, the performance of any such
act, or taking of any such action. In any such event, subject to the
rights of lessees, and other occupants under the Other Leases, Mortgagee
and any person designated by Mortgagee shall have, and are hereby granted,
the right to enter upon the Mortgaged Property at any time and from time to
time for the purpose of taking any such action. If the landlord under the
Ground Lease shall deliver to Mortgagee a copy of
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any notice of default sent by said landlord to Mortgagor, as tenant under
such Ground Lease, such notice shall constitute full protection to
Mortgagee for any action taken or omitted to be taken by Mortgagee, in good
faith, in reliance thereon. Mortgagor shall, from time to time, use its
reasonable efforts to obtain from the landlord under the Ground Lease such
certificates of estoppel with respect to compliance by Mortgagor with the
terms of the Ground Lease as may be reasonably requested by Mortgagee.
Mortgagor shall exercise each individual option, if any, to extend or renew
the term of the Ground Lease, or option to purchase or right of first
refusal with respect to purchase of the Leasehold Premises, as the case may
be, upon demand by Mortgagee made at any time within one (1) year of the
last day upon which any such option may be exercised, and Mortgagor hereby
expressly authorizes and appoints Mortgagee its attorney-in-fact to
exercise, either jointly or individually, any such option or right of first
refusal in the name of and upon behalf of Mortgagor, which power of
attorney shall be irrevocable and shall be deemed to be coupled with an
interest.
(b) Mortgagor shall not, without Mortgagee's prior written
consent, elect to treat either the Ground Lease or the leasehold estate
created thereby as terminated under Subsection 365(h)(1) of the Bankruptcy
Code, after rejection or disaffirmance of the Ground Lease by the landlord
thereunder or by any trustee of such party, and any such election made
without such consent shall be void and ineffective.
(c) Subject to the Mortgagor's right to seek and retain certain
offsets as permitted hereunder, Mortgagor hereby unconditionally assigns,
transfers and sets over to Mortgagee all of Mortgagor's claims and rights
to the payment of damages that may hereafter arise as a result of any
rejection or disaffirmance of the Ground Lease by the landlord thereunder
or by any trustee of such party, pursuant to the Bankruptcy Code.
Mortgagee shall have and is hereby granted the right to proceed, in its own
name or in the name of the Mortgagor, in respect of any claim, suit, action
or proceeding relating to the rejection or disaffirmance of the Ground
Lease (including, without limitation, the right to file and prosecute, to
the exclusion of Mortgagor, any proofs of claim, complaints, motions,
applications, notices and other documents) in any case in respect of the
landlord under the Bankruptcy Code. This assignment constitutes a present,
irrevocable and unconditional assignment of the foregoing claims, rights
and remedies, and shall continue in effect until the Debt
14
secured by this Mortgage shall have been satisfied and discharged in full.
Any amounts received by Mortgagee as damages arising out of any such
rejection of the Ground Lease shall be applied toward payment of the Debt
in such order and priority as contemplated under the Credit Agreement.
(d) In the event that, pursuant to Subsection 365(h)(2) of the
Bankruptcy Code, Mortgagor seeks to offset against the rent payable under
the Ground Lease the amount of any damages caused by the nonperformance by
the landlord of such party's obligations under the Ground Lease after
rejection or disaffirmance thereof under the Bankruptcy Code, Mortgagor
shall, prior to effecting such offset, notify Mortgagee in writing of
Mortgagor's intent to do so, setting forth the amounts proposed to be so
offset and the basis therefor. Mortgagee shall have the right to object in
writing (stating the reasons therefor) to all or any part of such offset,
and, in the event of such objection, Mortgagor shall not effect any offset
of the amounts so objected to by Mortgagee. If Mortgagee shall have failed
to object as aforesaid within twenty (20) days after such notice, Mortgagor
may proceed to effect such offset in the amounts set forth in such notice.
Neither Mortgagee's failure to object as aforesaid nor any objection or
other communication between Mortgagor and Mortgagee relating to such offset
shall constitute an approval by Mortgagee of any such offset. If, in the
best business judgment of the Mortgagor, such offset is justified and
Mortgagee has received the aforesaid notices and has not objected but its
time to do so has not expired, the Mortgagor shall have the right to make
such offset and shall set aside t@,- offset amount as a reserve to be paid
only if Mortgagee objects within the aforesaid time. Mortgagor shall
indemnify and hold Mortgagee and its officers, directors, employees and
agents harmless from and against any and all claims, demands, actions,
suits, proceedings, damages, losses, costs and expenses of every nature
whatsoever actually incurred (including, without limitation, reasonable
legal fees and disbursements) arising from or relating to any such offset
by Mortgagor.
(e) Mortgagor shall, promptly after obtaining knowledge thereof,
use its best efforts to give prompt oral notice to Mortgagee of any actual
or contemplated filing by or against the landlord under the Ground Lease of
a petition under the Bankruptcy Code, and give prompt written notice
thereof to Mortgagee of such actual or contemplated filing. The aforesaid
written notice shall set forth any information available to Mortgagor
concerning the date or anticipated
15
date of such filing, the court in which such petition was filed or is
expected to be filed, and the relief sought or reasonably expected to be
sought therein. Mortgagor shall, promptly after receipt thereof, deliver
to Mortgagee any and all notices, summonses, pleadings, applications and
other documents received by Mortgagor in connection with any such petition
and any proceedings related thereto.
(f) In the event that any action, proceeding, motion or notice
shall be commenced or filed in respect of the landlord under the Ground
Lease or the Mortgaged Property or any part thereof, in connection with any
case under the Bankruptcy Code, Mortgagee shall have, and is hereby
granted, the option, to the exclusion of Mortgagor, exercisable upon notice
from Mortgagee to Mortgagor, to conduct and control any such litigation
with counsel of Mortgagee's choice. Mortgagee may proceed, in its own name
or in the name of Mortgagor, in connection with any such litigation, and
Mortgagor agrees to execute any and all powers, authorizations, consents
and other documents required by Mortgagee in connection therewith.
Mortgagor shall, upon demand, pay to Mortgagee all costs and expenses
(including without limitation, legal fees and disbursements) paid or
incurred by Mortgagee in connection with the prosecution or conduct of any
such proceedings, and, to the extent permitted by law, such costs and
expenses shall be deemed expenses incurred in upholding the lien of this
Mortgage and added to the indebtedness secured by this Mortgage. Mortgagor
shall not, without the prior written consent of Mortgagee, commence any
action, suit, proceeding or case, or file any application or make any
motion, in respect of the Ground Lease in any such case under the
Bankruptcy Code.
(g) In the event that a petition under the Bankruptcy Code shall
be filed by or against Mortgagor, and Mortgagor, or anyone claiming through
or under Mortgagor or a trustee in bankruptcy shall have the right to
reject the Ground Lease pursuant to Section 365(a) of the Bankruptcy Code
or a successor statute, Mortgagor shall give Mortgagee at least ten (10)
days' prior written notice of the date on which application shall be made
to the court for authority to reject the Ground Lease; provided, however,
that if a trustee in bankruptcy shall have a right to reject the Ground
Lease in less than ten (10) days, then Mortgagor shall give such notice to
Mortgagee immediately upon Mortgagor's knowledge of such application.
Mortgagee shall have the exclusive right, but not the obligation (subject
to the rights of a trustee in bankruptcy), to exercise said right and
Mortgagor hereby assigns said right to Mortgagee.
16
If at any time the landlord under the Ground Lease, or anyone holding by,
through or under the landlord under the Ground Lease or a trustee in
bankruptcy shall elect to reject the Ground Lease pursuant to Section
365(a) of the Bankruptcy Code, or a successor statute, thereby giving to
Mortgagor the right to elect to treat the Ground Lease as terminated
pursuant to Section 365(h)(1) of the Bankruptcy Code, or a successor
statute, Mortgagee shall have the exclusive right to exercise said right
and Mortgagor hereby assigns said right to Mortgagee. If either of the
assignments provided for in this paragraph is held to be enforceable, then
Mortgagor, anyone claiming by, through or under Mortgagor or a trustee in
bankruptcy, shall not exercise rights purportedly assigned to Mortgagee
without the prior written consent of Mortgagee, and if Mortgagee shall give
such consent, Mortgagor, anyone claiming by, through or under Mortgagor or
a trustee in bankruptcy shall promptly exercise either of said rights.
(h) To the extent permitted by applicable law, Mortgagor hereby
assigns, transfers and sets over to Mortgagee an exclusive right to apply
to the Bankruptcy Court under Subsection 365(d)(4) of the Bankruptcy Code
for an order extending the period during which the Ground Lease may be
rejected or assumed after the entry of any order for relief in respect of
Mortgagor under Chapter 7 or Chapter 11 of the Bankruptcy Code.
20. No Merger of Fee and Leasehold Estates. So long as any
portion of the Debt shall remain unpaid, unless Mortgagee shall otherwise
consent, then the fee title to the Leasehold Premises and the leasehold
estate therein created pursuant to the provisions of the Ground Lease and
the fee title to the Improvements and all Equipment constituting a fixture,
and the fee title to the Easement Premises and the interests in real
property arising under the provisions of the Easements, shall not merge but
shall always be kept separate and distinct, notwithstanding the union of
such estates in Mortgagor, or in any other person (including Mortgagee) by
purchase, operation of law or otherwise (including without limitation a
union of estates arising from a foreclosure sale purchase or deed in lieu
of foreclosure).
21. Performance of Other Agreements. Mortgagor shall observe
and perform each and every term to be observed or performed by Mortgagor
pursuant to the terms of any agreement or recorded instrument affecting or
pertaining to the Mortgaged Property.
17
22. Defaults. The Debt shall become due at the option of
Mortgagee upon the occurrence of any one of the following events:
(a) if any Event of Default under the Credit Agreement shall
occur;
(b) if Mortgagor shall be in default beyond the expiration of
any applicable notice and cure period under any mortgage or deed of trust
covering any part of the Mortgaged Property whether superior or inferior in
lien to this Mortgage.
23. Right to Cure Defaults. If default in the performance of
any of the covenants of Mortgagor herein occurs, Mortgagee, without waiving
any default or releasing Mortgagor from any obligation, may (but shall be
under no obligation to) remedy the same for the account and at the cost and
expense of Mortgagor, and for such purpose shall have the right to enter
upon the Mortgaged Property without thereby becoming liable to Mortgagor or
any person in possession thereof holding under Mortgagor. If Mortgagee
shall remedy such a Default or appear in, defend or bring any action or
proceeding to protect its interest in the Mortgaged Property or to
foreclose this mortgage or collect the Debt, all costs and expenses
actually incurred (including, without limitation, reasonable attorneys'
fees) shall be paid by Mortgagor to Mortgagee on demand with interest to
the date of payment to Mortgagee at the Default Interest Rate. All such
costs and expenses incurred by Mortgagee, with interest at the Default
Interest Rate, shall be secured by this Mortgage
24. Appointment of Receiver. Mortgagee, in any action to
foreclose this Mortgage or upon the actual or threatened waste to any part
of the Mortgaged Property or upon the occurrence of any default hereunder,
shall be at liberty, without notice, to apply for the appointment of a
receiver of the Rents, and shall be entitled to the appointment of such
receiver as a matter of right, without regard to the value of the Mortgaged
Property as security for the Debt, or the solvency or insolvency of any
person then liable for the payment of the Debt.
25. Remedies Upon an Event of Default. Upon the occurrence of
any event described in paragraph 22 of this Mortgage, then Mortgagee may,
to the extent permitted by law, exercise any right, power or remedy
permitted to it hereunder, under the Credit Agreement or under any other
Loan Instruments, and, without limiting the generality of
18
the foregoing, Mortgagee may, personally or by its agents, do any or all of
the following:
(a) declare the Debt to be immediately due and payable, and if
the same is not paid on demand, at Mortgagee's option, bring suit for any
delinquent payments under the Notes and take any and all steps and any and
all other proceedings that Mortgagee deems necessary to enforce the
indebtedness and obligations secured hereby and to protect the lien of this
Mortgage; and
(b) enter and take possession of the Mortgaged Property or any
part thereof, exclude the Mortgagor and all persons claiming under the
Mortgagor whose claims are junior to this Mortgage, wholly or partly
therefrom, and use, operate, manage and control the same either in the name
of the Mortgagor or otherwise as Mortgagee shall deem best, and upon such
entry, from time to time at the expense of the Mortgagor and the Mortgaged
Property, make all such repairs, replacements, alterations, additions or
improvements to the Mortgaged Property or any part thereof as Mortgagee may
deem proper and, whether or not Mortgagee has so entered and taken
possession of the Mortgaged Property or any part thereof, collect and
receive all the Rents and apply the same, to the extent permitted by law,
to the payment of all expenses which Mortgagee may be authorized to incur
under this Mortgage, the remainder to be applied to the payment of the Debt
until the same shall have been repaid in full; if Mortgagee demands or
attempts to take possession of the Mortgaged Property or any portion
thereof in the exercise of any rights hereunder, Mortgagor shall promptly
turn over and deliver complete possession thereto to Mortgagee; and
(c) proceed to protect and enforce its rights under this
Mortgage by suit for specific performance of any covenant contained herein,
in the Credit Agreement or in the Loan Instruments or in aid of the
execution of any power granted herein, in the Credit Agreement or in the
Loan Instruments, or for the foreclosure of this Mortgage and the sale of
the Mortgaged Property under the judgment or decree of a court of competent
jurisdiction, or for the enforcement of any other right as Mortgagee shall
deem effectual for such purpose; provided that in the event of a sale, by
foreclosure or otherwise, of less than all of the Mortgaged Property, this
Mortgage shall continue as a lien on, and security
19
interest in, the remaining portion of the Mortgaged Property; and
(d) exercise any or all of the remedies available to a secured
party under the Uniform Commercial Code as provided in paragraph 35 hereof;
and
(e) without in any way limiting the rights hereunder pursuant to
paragraphs 6, 24 and 35 apply for the appointment of a receiver as a matter
of right, without regard to the adequacy of the security for the Debt or
the solvency of the Mortgagor. Mortgagor hereby irrevocably consents to
such appointment. Specifically, the Mortgagee or any receiver shall be
entitled to take possession of the Mortgaged Property from the owners,
tenants and/or occupants of the whole or any part thereof and to collect
and receive the Rents and the value of the use and occupation of the
Mortgaged Property, or any part thereof, from the then owner, tenants
and/or occupants thereof for the benefit of Mortgagee.
26. Mortgagor as Tenant Holding Over. In the event of any
foreclosure sale contemplated under paragraph 25 hereof, Mortgagor shall be
deemed to be a tenant holding over and shall forthwith deliver possession
to the purchaser or purchasers at such sale or be summarily dispossessed
according to provisions of law applicable to tenants holding over.
27. Discontinuance of Proceedings. In case Mortgagee shall have
proceeded to enforce any right, power or remedy under this Mortgage by
foreclosure, entry or otherwise, and such proceeding shall have been
withdrawn, discontinued or abandoned for any reason, or shall have been
determined adverse to Mortgagee, then in every such case (a) Mortgagor and
Mortgagee shall be restored to their former positions and rights, (b) all
rights, powers and remedies of Mortgagee shall continue as if no such
proceeding had been taken, (c) each and every uncured default declared or
occurring prior or subsequent to such withdrawal, discontinuance or
abandonment shall be or shall be deemed to be a continuing default and (d)
neither the Debt, this Mortgage, the Notes, the Credit Agreement nor the
other Loan Instruments, shall be or shall be deemed to have been affected
by such withdrawal, discontinuance or abandonment; and Mortgagor hereby
expressly waives the benefit of any statute or rule of law now provided, or
which may hereafter conflict with the above.
20
28. No Reinstatement. If a default shall have occurred and
Mortgagee shall have proceeded to enforce any right, power or remedy
permitted hereunder, then a tender of payment by Mortgagor or by anyone on
behalf of Mortgagor of any amount less than the amount necessary to satisfy
the Debt in full, or the acceptance by Mortgagee of any such payment so
tendered, shall not constitute a reinstatement of this Mortgage, the Notes,
the Credit Agreement or any Loan Instrument.
29. Mortgagor's Waiver of Rights. To the full extent permitted
by law, except as otherwise specifically and expressly provided in this
Mortgage, the Credit Agreement or any Loan Instrument, Mortgagor waives the
benefit of all laws now existing or that hereafter may be enacted providing
for (i) any appraisement before sale of any portion of the Mortgaged
Property and (ii) the benefit of all Laws that may be hereafter enacted in
any way extending the time for the enforcement of the collection of the
Debt, or creating or extending a period of redemption from any sale made in
collecting said Debt. To the full extent that 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, extension or redemption,
or any so-called "Moratorium Laws" and Mortgagor, for Mortgagor and its
successors and assigns, and for any and all persons ever claiming any
interest in the Mortgaged Property, 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
marshaling in the event of foreclosure of the liens hereby created. If any
Law referred to in this paragraph and now in force, of which Mortgagor,
Mortgagor's successors and assigns or any other person might take advantage
despite this paragraph, shall hereafter be repealed or cease to be in
force, such Law shall not thereafter be deemed to preclude the application
of this paragraph.
30. Non-Waiver. The failure of Mortgagee to insist upon strict
performance of any term of this Mortgage shall not be deemed to be a waiver
of any term of this Mortgage. Borrowers shall not be relieved of their
obligation to pay the Debt at the time and in the manner provided for its
payment in the Notes, the Credit Agreement and the Loan Instruments (nor
shall any of Mortgagor's other obligations hereunder, under the Credit
Agreement or the other Loan Instruments, nor shall the other Borrowers'
obligations under the Credit Agreement or the other Loan
21
Instruments be in any way affected) by reason of (i) failure of Mortgagee
to comply with any request of Mortgagor or the other Borrowers to take any
action to foreclose this Mortgage or otherwise enforce any of the
provisions hereof or of the Notes, the Credit Agreement, any other Loan
Instruments or any other mortgage, instrument or document evidencing,
securing or guaranteeing payment of the Debt or any portion thereof, (ii)
the release, regardless of consideration, of the whole or any part of the
Mortgaged Property or any other security for the Debt, or (iii) any
agreement or stipulation between Mortgagee and any subsequent owner or
owners of the Mortgaged Property or other person extending the time of
payment or otherwise modifying or supplementing the terms of the Notes, the
Credit Agreement, the Loan Instruments, this Mortgage or any other
mortgage, instrument or document evidencing, securing or guaranteeing
payment of the Debt or any portion thereof, without first having obtained
the consent of Mortgagor, and in the latter event, Mortgagor shall continue
to be obligated to pay the Debt at the time and in the manner provided in
the Notes, the Credit Agreement, the Loan Instruments, and this Mortgage
(as so extended, modified or supplemented, if such be the case) and shall
continue to be obligated to perform its other obligations hereunder and
under the Credit Agreement and the Loan Instruments (in each case, as so
extended, modified and supplemented) unless expressly released and
discharged from such obligation by Mortgagee in writing. Regardless of
consideration, and without the necessity for any notice to or consent by
the holder of any subordinate lien, encumbrance, right, title or interest
in or to the Mortgaged Property, Mortgagee may release any person at any
time liable for the payment of the Debt or any portion thereof or any part
of the security held for the Debt and may extend the time of payment or
otherwise modify the terms of the Notes, the Credit Agreement, the Loan
Instruments or this Mortgage (including, without limitation, a modification
of the interest rate payable on the principal balance of the Notes) without
in any manner impairing or affecting this Mortgage or the lien thereof or
the priority of this Mortgage, as so extended and modified, as security for
the Debt over any such subordinate lien, encumbrance, right, title or
interest.
31. Remedies Cumulative. Mortgagee may resort for the payment
of the Debt to any other security held by Mortgagee in such order and
manner as Mortgagee, in its discretion, may elect. Mortgagee may take
action to recover the Debt, or any portion thereof, or to enforce any
covenant hereof without prejudice to the rights of Mortgagee thereafter to
foreclose this mortgage. Mortgagee shall not
22
be limited exclusively to the rights and remedies herein stated but shall
be entitled to every additional right and remedy now or hereafter afforded
by Law or equity. The rights of Mortgagee under this Mortgage shall be
separate, distinct and cumulative and none shall be given effect to the
exclusion of the others. No act of Mortgagee shall be construed as an
election to proceed under any one provision herein to the exclusion of any
other provision. Mortgagee shall be entitled to enforce payment of the
Debt and performance of any of the obligations of the Mortgagor and to
exercise all rights and powers under this Mortgage or under any other Loan
Instrument or any Laws now or hereafter in force, notwithstanding that some
or all of such obligations may now or hereafter be otherwise secured,
whether by mortgage, pledge, lien, assignment or otherwise; neither the
acceptance of this Mortgage nor its enforcement, whether by court action or
pursuant to other powers herein contained, shall prejudice or in any manner
affect Mortgagee's right to realize upon or enforce any other security now
or hereafter held by the Mortgagor, it being stipulated 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, in
accordance with the terms hereof, may determine; every power or remedy
given by the Credit Agreement, this Mortgage or any of the other Loan
Instruments to the Mortgagee or to which the Mortgagee is otherwise
entitled, may be exercised, concurrently or independently, from time to
time and as often as may be deemed expedient by Mortgagee.
32. Liability. It Mortgagor consists of more than one person,
the obligations and liabilities of each such person hereunder shall be
joint and several.
33. Prepayment After Default. If following the occurrence of
any default under this Mortgage and an exercise by Mortgagee of its option
to declare the Debt immediately due, Mortgagor shall tender payment of an
amount sufficient to satisfy the entire Debt at any time prior to a sale of
the Mortgaged Property any such payment shall be accepted by Mortgagee only
if such payment is permitted at such time under the provisions of the
Credit Agreement.
34. Construction. The terms of this Mortgage shall be construed
in accordance with the laws of the State of New Jersey.
35. Security Agreement. This Mortgage constitutes both a real
property mortgage and a "security agreement" within the meaning of the
Uniform Commercial Code
23
of the State of New Jersey and the Mortgaged Property includes both real
and personal property and all other rights and interest, whether tangible
or intangible in nature, of Mortgagor in the Mortgaged Property.
Mortgagor, by executing and delivering this Mortgage, has granted to
Mortgagee, as security for the Debt, a security interest in such of the
Mortgaged Property as is governed by the Uniform Commercial Code. Upon the
occurrence and continuation of an Event of Default hereunder, Mortgagee, in
addition to any other rights and remedies which it may have, shall have and
may exercise immediately and without demand, any and all rights and
remedies granted to a secured party upon default under the Uniform
Commercial Code including, without limiting the generality of the
foregoing, the right to take possession of such of the Mortgaged Property
as is governed by the Uniform Commercial Code personally, through an agent
or by means of a court-appointed receiver, and to take such other measures
as Mortgage may deem necessary for the care, protection and preservation of
such part of the Mortgaged Property. Upon request or demand of Mortgagee,
Mortgagor shall at its expense assemble such of the Mortgaged Property as
is governed by the Uniform Commercial Code and make it available to
Mortgagee at a convenient place acceptable to Mortgagee. Mortgagor shall
pay to Mortgagee on demand any and all expenses, including reasonable legal
expense and attorneys' fees, incurred or paid by Mortgagee in protecting
the interest in the Mortgaged Property herein granted and in enforcing its
rights hereunder with respect to such part of the Mortgaged Property. Any
notice of sale, disposition or other intended action by Mortgagee with
respect to such part of the Mortgaged Property sent to Mortgagor in
accordance with the provisions of this Mortgage at least five (5) days
prior to the date of any such sale, disposition or other action, shall
constitute reasonable notice to Mortgagor, and the method of sale or
disposition or other intended action set forth or specified in such notice
shall conclusively be deemed to be commercially reasonable within the
meaning of the Uniform Commercial Code unless objected to in writing by
Mortgagor within three (3) days after receipt by Mortgagor of such notice.
36. Further Acts, etc. Mortgagor will, at the cost of Mortgagor
and without expense to Mortgagee, do, execute, acknowledge and deliver all
and every such further acts, deeds, conveyances, mortgages, assignments,
notices of assignments, transfers and assurances as Mortgagee shall, from
time to time, require, for the better assuring, conveying, assigning,
transferring and confirming unto Mortgagee the property and rights hereby
mortgaged or intended now or hereafter so to be, or which Mortgagor may
24
be or may hereafter become bound to convey or assign to Mortgagee, or for
carrying out the intention or facilitating the performance of the terms of
this Mortgage or for filing, registering or recording this Mortgage and, on
demand, will execute and deliver and hereby authorizes Mortgagee to execute
in the name of Mortgagor to the extent Mortgagee may lawfully do so, one or
more financing statements, chattel mortgages or comparable security
instruments, to evidence more effectively the lien hereof upon the
Mortgaged Property.
37. Headings. etc. The headings and captions of various
paragraphs of this Mortgage are for convenience of reference only and are
not to be construed as defining or limiting, in any way, the scope or
intent of the provisions hereof.
38. Recording of Mortgage, etc. Mortgagor forthwith upon the
execution and delivery of this Mortgage and thereafter, from time to time,
will cause this Mortgage, and any security instrument creating a lien or
evidencing the lien hereof upon the Mortgaged Property and each instrument
of further assurance to be filed, registered or recorded in such manner and
in such places as may be required by any present or future law in order to
publish notice of and fully to protect the lien hereof upon, and the
interest of Mortgagee in the Mortgaged Property. Mortgagor will pay all
filing, registration or recording fees, and all expenses actually incurred
incident to the preparation, execution and acknowledgment of this Mortgage,
any mortgage supplemental hereto, any security instrument with respect to
the Mortgaged Property and any instrument of further assurance, and all
Federal, state, county and municipal taxes, duties, imposts, assessments
and charges (including, without limitation, documentary stamp taxes and
intangible personal property taxes) arising out of or in connection with
the execution and delivery of this Mortgage or the Debt secured hereby, any
mortgage supplemental hereto, any security instrument or financing
statement with respect to the Mortgaged Property or any instrument of
further assurance. Mortgagor shall hold harmless and indemnify Mortgagee,
its successors and assigns, against any liability incurred by reason of the
imposition of any tax on the making and recording of this Mortgage.
39. Usury Laws. This Mortgage, the Credit Agreement and the
Notes are subject to the express condition that at no time shall Mortgagor
be obligated or required to pay interest on the principal balance due under
the Notes at a rate which could subject the holder of the Notes to either
25
civil or criminal liability as a result of being in excess of the maximum
interest rate which Mortgagor is permitted by Law to contract or agree to
pay. If by the terms of this Mortgage, the Credit Agreement or the Notes,
Mortgagor is at any time required or obligated to pay interest on the
principal balance due under the Notes at a rate in excess of such maximum
rate, the rate of interest under the Notes (and the Credit Agreement) shall
be deemed to be immediately reduced to such maximum rate and the interest
payable shall be computed at such maximum rate and all prior interest
payments in excess of such maximum rate shall be applied and shall be
deemed to have been payments in reduction of the principal balance of the
Notes.
40. Sole Discretion of Mortgagee. Except as otherwise
specifically provided in this Mortgage, wherever pursuant to this Mortgage,
Mortgagee exercises any right given to it to consent or to withhold its
consent, to approve or disapprove, or any arrangement or term is to be
satisfactory to Mortgagee, the decision of Mortgagee to consent or to
withhold its consent, to approve or disapprove or to decide that
arrangements or terms are satisfactory or not satisfactory shall be in the
sole discretion of Mortgagee and shall be final and conclusive.
41. Recovery of Sums Required To Be Paid. Mortgagee shall have
the right from time to time to take action to recover any sum or sums which
Constitute a part of the Debt as the same become due, without regard to
whether or not the balance of the Debt shall be due, and without prejudice
to the right of Mortgagee thereafter to bring an action of foreclosure, or
any other action, for a default or defaults by Mortgagor existing at the
time such earlier action was commenced.
42. Absolute and Unconditional Obligation. Mortgagor
acknowledges that Borrower's obligation to pay the Debt in accordance with
the provisions of the Notes, the Credit Agreement and the Loan Instruments
is and shall at all times continue to be absolute and unconditional in all
respects, and shall at all times be valid and enforceable irrespective of
any other agreements or circumstances of any nature whatsoever which might
otherwise constitute a defense to the Notes, the Credit Agreement or any of
the Loan Instruments or the obligation of Borrowers thereunder to pay the
Debt or the obligations of any other person relating to the Notes, the
Credit Agreement or any of the Loan Instruments or the obligations of
Borrowers under the Notes, the Credit Agreement or any of the Loan
Instruments, and to the full extent permitted by law, Mortgagor absolutely,
26
unconditionally and irrevocably waives any and all right to assert any
defense, setoff, counterclaim or crossclaim of any nature whatsoever with
respect to the obligation of Borrowers to pay the Debt in accordance with
the provisions of the Notes, the Credit Agreement and the Loan Instruments
or the obligations of any other person relating to the Notes, the Credit
Agreement or any of the Loan Instruments or the obligations of Borrowers
under the Notes, the Credit Agreement or any of the Loan Instruments, or in
any action or proceeding brought by Mortgagee to collect the Debt, or any
portion thereof, or to enforce, foreclose and realize upon the lien and
security interest created by this mortgage or any other document or
instrument securing repayment of the Debt, in whole or in part.
43. Indemnification; Waiver of Offset.
(a) If Mortgagee, Agent or any of the Secured
Parties are made a party defendant to any litigation concerning the Notes,
the Credit Agreement, this Mortgage, any other Loan Instrument or the
Mortgaged Property or any part thereof or interest therein, or the
occupancy thereof by Mortgagor, then Mortgagor shall indemnify, defend and
hold Mortgagee and/or such Secured Parties, as the case may be, harmless
from all liability by reason of said litigation, including reasonable
attorneys' fees and expenses incurred by Mortgagee and/or such Secured
Parties, as the case may be, in any such litigation, whether or not any
such litigation is prosecuted to judgment. If Mortgagee commences an
action against Mortgagor to enforce any of the terms hereof or because of
the breach by Mortgagor of any of the terms hereof or for the recovery of
any sum secured hereby, Mortgagor shall pay the Mortgagee's attorneys' fees
and expenses, together with interest thereon at the Default Interest Rate
from the date the same are paid to the date of reimbursement by Mortgagor
and the right to such reasonable attorneys' fees and expenses shall be
deemed to have accrued on the commencement of such action, and shall be
enforceable whether or not such action is prosecuted to judgment. if
Mortgagor breaches any term of this Mortgage, the Mortgagee may engage an
attorney or attorneys to protect Mortgagee's rights hereunder, and in the
event of such engagement following any breach by Mortgagor, Mortgagor shall
pay the Mortgagee's reasonable attorneys' fees and expenses so incurred,
whether or not an action is actually commenced against mortgagor by reason
of breach.
(b) All sums secured by this Mortgage shall be paid in
accordance with the Credit Agreement, the Notes, and any other Loan
Instruments, as applicable, and without
27
counterclaim, setoff, deduction or defense and without abatement,
suspension, deferment, diminution or reduction, and the obligations and
liabilities of Mortgagor hereunder shall in no way be released, discharged
or otherwise affected (except as expressly provided herein) by reason of
(i) any claim which any of the Borrowers (or Mortgagor) have or might have
against Mortgagee or any of the Secured Parties or (ii) any default or
failure on the part of the Mortgagee to perform or comply with any of the
terms hereof or of any other agreement with any of the Borrowers (or
Mortgagor).
44. Authority. Mortgagor (and the undersigned representative of
Mortgagor) has full power, authority and legal right to execute this
Mortgage and to mortgage, give, grant, bargain, sell, alien, enfeoff,
convey, confirm and assign the Mortgaged Property pursuant to the terms
hereof and to keep and observe all of the terms of this Mortgage on
Mortgagor's part to be kept and observed.
45. Actions and Proceedings. Mortgagee shall have the right to
appear in and defend any action or proceeding brought with respect to the
Mortgaged Property and to bring any action or proceeding, in the name and
on behalf of Mortgagor, which the Mortgagee, in its reasonable discretion,
feels should be brought to protect the Mortgagee's interest in the
Mortgaged Property.
46. Inapplicable Provisions. If any term, covenant or condition
of this Mortgage shall be held to be invalid, illegal or unenforceable in
any respect, this Mortgage shall be construed without such provision.
47. Duplicate Originals. This mortgage may be executed in any
number of duplicate originals and each such duplicate original shall be
deemed to constitute but one and the same instrument.
48. 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 Mortgagor and any subsequent owner
or owners of the Mortgaged Property or any part thereof or interest
therein; the word "Agent" shall mean Agent or any successor agent appointed
by the Secured Parties; the word "Notes" shall mean each of the Notes or
any other evidence of indebtedness secured by this Mortgage; the word
"Borrowers" shall mean each of the Mortgagor and NRG Generating (Newark)
Cogeneration Inc. or either of them,
28
as the context requires, and any person becoming a borrower under the
Credit Agreement and their respective heirs, executors, administrators,
legal representatives, successors and assigns; the word "Mortgagee" shall
mean all of or any of the entities constituting Mortgagee, as the context
requires, and shall include the rights of Agent to act on behalf of the
Secured Parties under and pursuant to the Credit Agreement; and the words
"Mortgaged Property" shall include any portion of the Mortgaged Property or
interest therein; the word "Debt" shall mean all sums and performance
secured by this Mortgage. 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.
49. Remedies Not Exclusive. Mortgagee shall be entitled to
enforce payment and performance of any indebtedness or obligations secured
hereby and to exercise all rights and powers granted under this Mortgage or
under the Credit Agreement or the Notes or under any of the Loan
Instruments or under any Laws now or hereafter in force, notwithstanding
some or all of the said indebtedness and obligations secured hereby may now
or hereafter be otherwise secured, whether by mortgage, deed of trust,
pledge, lien, assignment or otherwise. Neither the acceptance of this
Mortgage nor its enforcement, whether by court action or other powers
herein contained, 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 it may in its absolute discretion determine. 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 right, power or remedy given by the Credit Agreement, this Mortgage
or any of the Loan Instruments to Mortgagee may be exercised, concurrently
or independently, from time to time and as often as may be deemed expedient
by Mortgagee. Every right, power or remedy given by this Mortgage to the
Mortgagee may be exercised by Agent on behalf of all Secured Parties
pursuant to the Credit Agreement, whether so expressed or not.
50. Joinder of Individual Special Co-Agent. An individual,
appointed by Agent in its discretion, may be
29
joined as special co-agent (in such capacity, the "Special Co-Agent")
hereunder in order to comply with any legal requirements respecting agents
under mortgages of property in the jurisdiction in which the Mortgaged
Property or any part thereof is or may be situated so that if, by any
present or future law in New Jersey or in any jurisdiction in which it may
be necessary to perform any act in the exercise of the rights of Mortgagee
hereunder, the Agent shall be incompetent or unqualified to so act, then
all of the acts required to be performed in such jurisdiction in the
exercise of the rights of Mortgagee hereunder created hereby shall be
performed by the Special Co-Agent and the Agent jointly, or the Special Co-
Agent acting alone. In case the Special Co-Agent shall resign or be
removed, or die or become incapable of acting, Mortgagee's interest in the
Mortgaged Property, and all rights, powers, trusts, duties and obligations
of Mortgagee shall, so far as permitted by law, vest in and be exercised by
the Agent, unless and until a successor Special Co-Agent shall be
appointed. The Special Co-Agent shall not be personally liable by reason
of any act or omission of the Agent or any co-agent or separate agent or by
reason of any act or omission of the Special Co-Agent taken or omitted to
be taken pursuant to written instructions received by him from the Agent.
Notice to the Agent or a co-agent or separate agent shall not constitute
notice to the Special Co-Agent unless and until such notice is actually
received by the Special Co-Agent.
51. Relationship. The relationship of Mortgagee to Mortgagor
hereunder is strictly and solely that of lender and borrower and nothing
contained in the Notes, this Mortgage, the Credit Agreement, or any other
Loan Instrument is intended to create, or shall in any event or under any
circumstance be construed as creating, a partnership, joint venture,
tenancy-in-common, joint tenancy or other relationship of any nature
whatsoever between Mortgagee and Mortgagor other than as lender and
borrower.
52. Waiver of Notice. Mortgagor shall not be entitled to any
notices of any nature whatsoever from Mortgagee except with respect to
matters for which this Mortgage specifically and expressly provides for the
giving of notice by Mortgagee to Mortgagor and Mortgagor hereby expressly
waives the right to receive any notice from Mortgagee with respect to any
matter for which this Mortgage does not specifically and expressly provide
for the giving of notice by Mortgagee to Mortgagor.
53. Waiver of Trial by Jury. Mortgagor hereby irrevocably and
unconditionally waives, and Mortgagee by its
30
acceptance of the Notes and this Mortgage irrevocably and unconditionally
waives, any and all rights to trial by jury in any action, suit or
counterclaim arising in connection with, out of or otherwise relating to
the Notes, this Mortgage, the Credit Agreement, or the other Loan
Instruments.
54. Waiver of Statutory Rights. Mortgagor shall not and will
not apply for or avail itself of any appraisement, valuation, stay,
extension or exemption laws, or any so-called "moratorium laws," now
existing or hereafter enacted, in order to prevent or hinder the
enforcement or foreclosure of this Mortgage, but hereby waives the benefit
of such laws to the full extent that Mortgagor may do so under applicable
law. Mortgagor, for itself and all who may claim through or under it,
waives any and all right to have the property and estates comprising the
Mortgaged Property marshalled upon any foreclosure of the lien of this
Mortgage and agrees that any court having jurisdiction to foreclose such
lien may order the Mortgaged Property sold as an entirety. Mortgagor
hereby waives for itself and all who may claim through or under it, and to
the full extent Mortgagor may do so under applicable law, any and all
rights of redemption from sale under any order or decree of foreclosure of
this Mortgage or granted under any statute now existing or hereafter
enacted.
55. Credit Agreement. This Mortgage is subject to all of the
terms, covenants and conditions of the Credit Agreement, which Credit
Agreement and all of the terms, covenants and conditions thereof are by
this reference incorporated herein and made a part hereof with the same
force and effect as if set forth at length herein. The proceeds of the
Funding Loans and Debt Service Loans secured hereby are to be advanced by
Mortgagee to Mortgagor in accordance with the provisions of the Credit
Agreement. Mortgagor shall observe and perform all of the terms, covenants
and conditions of the Credit Agreement on Mortgagor's part to be observed
or performed. All advances made and all indebtedness arising and accruing
under the Credit Agreement with respect to the Funding Loans or Debt
Service Loans thereunder from time to time shall be secured hereby. In the
event of any conflict or ambiguity between the terms, covenants and
conditions of this Mortgage and the Credit Agreement, the terms, covenants
and conditions which shall enlarge the rights and remedies of Mortgagee and
the
31
interest of Mortgagee in the Mortgaged Property, afford Mortgagee greater
financial security in the Mortgaged Property and better assure payment of
the Debt in full, shall control.
56. No Oral Change. This Mortgage may only be modified or
amended by an agreement in writing signed by Mortgagor and Mortgagee, and
may only be released, discharged or satisfied of record by an agreement in
writing signed by Mortgagee. No waiver of any term, covenant or provision
of this Mortgage shall be effective unless given in writing by Mortgagee
and if so given by Mortgagee shall only be effective in the specific
instance in which given. Mortgagor acknowledges that the Notes, this
mortgage, the Credit Agreement and the other Loan Instruments set forth the
entire agreement and understanding of Mortgagor and Borrowers with respect
to the Debt secured hereby and that no oral or other agreements,
understanding, representation or warranties exist with respect to the Debt
secured hereby other than those set forth in the Notes, this Mortgage, the
Credit Agreement and the other Loan Instruments.
57. True Copy. Mortgagor acknowledges receipt of a true copy of
this Mortgage.
IN WITNESS WHEREOF, Mortgagor has duly executed this Mortgage as
of the day and year first above written under seal.
ATTEST: NRG GENERATING (XXXXXX)
COGENERATION INC.
/s/ By: /s/ Xxxxxxx Xxxxx
Name: Name: Xxxxxxx X. Xxxxx
Title: Title: President
00
XXXXX XX XXX XXXX )
ss.:
COUNTY OF NEW YORK )
Be it remembered that on this 28th day of June, 1996, before me,
/s/ Xxxxxxx X. Xxxxxx, a notary public, personally appeared Xxxxxxx X.
Xxxxx, the President of NRG GENERATING (XXXXXX) COGENERATION INC., who I am
satisfied is the person who has signed the foregoing instrument, and he did
acknowledge that he signed, sealed with the seal of the said corporation,
and delivered said instrument as the officer above stated, and that the
foregoing instrument is the voluntary act and deed of said corporation,
made by virtue of the authority of its board of directors.
/s/ Xxxxxxx X. Xxxxxx
Notary Public
My commission expires:
[Seal]
EXHIBIT A
(Description of Premises)
BEGINNING at a point in the southerly line of Washington Road,
said point being the dividing line between the easterly line of Lot 1.04 in
Block 42 and the westerly line of Lot 1.03 in Block 42 of Middlesex County
now or formerly Young Mens Christian Association of Perth Amboy and
running;
thence (1) along the dividing line of Lots 1.03 and 1.04 in Block 42 and
along the westerly line of lands now or formerly Young Mens
Christian Association of Perth Amboy S 1 deg. 06 min. E 338.19
feet;
thence (2) S 86 deg.47 min.09 sec. E 156.06 feet;
thence (3) S 28 deg.49 min.27 sec. W 450.74 feet;
thence (4) S 33 deg.30 min.27 sec. W 175.92 feet;
thence (5) N 61 deg.10 min.33 sec. W 267.36 feet;
thence (6) N 28 deg.49 min.27 sec. E 445.00 feet;
thence (7) S 82 deg.53 min.33 sec. E 110.00 feet;
thence (8) N 1 deg. 06 min W 382.02 feet, partially along the easterly
line of Lot 1.01 in Block 42, now or formerly E. I. Du Pont De
Nemours & Co., to the southerly line of Washington Road;
thence (9) along said southerly line of Washington Road, N 88 deg. 54 min.
E 70.00 feet to the point or place of BEGINNING.
CONTAINING 175,124.6 square feet or 4.020 acres, as described and
depicted on that certain survey prepared by Xxxxx & Xxxxxx, Inc., certified
by Xxxxxxx X. Xxxxxx, N.J. P.L.S. Reg. #8225; N.J. P.P. Req.# 747, dated
June 19, 1996.
TOGETHER WITH, rights under that certain Easement for Common
Roadway, recorded in Deed Book 3899, Page 340, as amended in Deed Book
3899, Page 348, Middlesex County records.
TOGETHER WITH, rights under that certain Reciprocal Easement
Agreement, dated June 28, 1996, between E. I. Du Pont De Nemours & Company
and NRG Generating (Xxxxxx) Cogeneration Inc., to be recorded in Middlesex
County, New Jersey records.
EXHIBIT B
(Description of the Easements)
1. Easement dated February 4, 1991 by and among E. I. Du Pont de Nemours
and Company, Borough of Sayreville and O'Brien (Xxxxxx) Cogeneration,
Inc. recorded in the Middlesex County Clerk's Office on February 19,
1991 in Deed Book 3899, page 340 and re-recorded in said Clerk's Office
on February 19, 1991 in Deed Book 3899, page 348.
2. Reciprocal Easement Agreement dated June 28, 1996 between NRG
Generating (Xxxxxx) Cogeneration Inc. and E. I. Du Pont de Nemours and
Company to be recorded in the Middlesex County Clerk's Office prior to
the recordation of this Mortgage.
