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EXHIBIT 4.3
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STERLING FIBERS, INC.,
Mortgagor,
to
THE CIT GROUP/BUSINESS CREDIT, INC.
as Administrative and Collateral Agent,
Mortgagee
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MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
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Dated as of July 23, 1999
This instrument affects certain real and personal property
located in Santa Xxxx County,
State of Florida.
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Record and return to:
Xxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
This instrument was prepared by the above-named attorney.
Notice: This instrument contains inter alia obligations which may provide for:
(a) a variable rate of interest and/or
(b) future and/or revolving credit advances or
readvances, which when made, shall have the same
priority as advances or readvances made on the date
hereof whether or not (i) any advances or readvances
were made on the date hereof and (ii) any
indebtedness is outstanding at the time any advance
or re-advance is made.
Notwithstanding anything to the contrary contained herein, the
maximum principal indebtedness secured under any contingency
by this instrument shall in no event exceed $70,000,000
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TABLE OF CONTENTS
Page
ARTICLE I COVENANTS AND AGREEMENTS OF THE MORTGAGOR
SECTION 1.1. Payment of Secured Obligations.......................................................4
SECTION 1.2. Title to Collateral, etc.............................................................4
SECTION 1.3. Title Insurance......................................................................5
SECTION 1.3.1. Title Insurance Policy...............................................................5
SECTION 1.3.2. Title Insurance Proceeds.............................................................5
SECTION 1.4. Recordation..........................................................................5
SECTION 1.5. Payment of Impositions, etc..........................................................5
SECTION 1.6. Insurance and Legal Requirements.....................................................6
SECTION 1.7. Security Interests, etc..............................................................6
SECTION 1.8. Permitted Contests...................................................................6
SECTION 1.9. Leases...............................................................................7
SECTION 1.10. Compliance with Instruments..........................................................7
SECTION 1.11. Maintenance and Repair, etc..........................................................7
SECTION 1.12. Alterations, Additions, etc..........................................................7
SECTION 1.13. Acquired Property Subject to Lien....................................................8
SECTION 1.14. Assignment of Rents, Proceeds, etc...................................................8
SECTION 1.15. No Claims Against the Mortgagee......................................................9
SECTION 1.16. Indemnification......................................................................9
SECTION 1.17. No Credit for Payment of Taxes......................................................10
SECTION 1.18. Intentionally Omitted...............................................................10
SECTION 1.19. No Transfer of the Property.........................................................10
SECTION 1.20. Security Agreement..................................................................10
SECTION 1.21. Representations and Warranties......................................................11
SECTION 1.22. Mortgagor's Covenants...............................................................11
ARTICLE II INSURANCE; DAMAGE, DESTRUCTION OR TAKING, ETC.
SECTION 2.1. Insurance...........................................................................11
SECTION 2.1.1. Risks to be Insured.................................................................11
SECTION 2.1.2. Policy Provisions...................................................................12
SECTION 2.1.3. Delivery of Policies, etc...........................................................12
SECTION 2.1.4. Separate Insurance..................................................................13
SECTION 2.2. Damage, Destruction or Taking; Mortgagor to Give Notice;
Assignment of Awards............................................................13
SECTION 2.3. Application of Proceeds and Awards..................................................13
SECTION 2.4. Total Taking and Total Destruction..................................................15
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ARTICLE III EVENTS OF DEFAULT; REMEDIES, ETC.
SECTION 3.1. Events of Default; Acceleration.....................................................16
SECTION 3.2. Legal Proceedings; Foreclosure......................................................16
SECTION 3.3. Power of Sale.......................................................................16
SECTION 3.4. Uniform Commercial Code Remedies....................................................17
SECTION 3.5. Mortgagee Authorized to Execute Deeds, etc..........................................17
SECTION 3.6. Purchase of Collateral by Mortgagee.................................................17
SECTION 3.7. Receipt a Sufficient Discharge to Purchaser.........................................17
SECTION 3.8. Waiver of Appraisement, Valuation, etc..............................................17
SECTION 3.9. Sale a Bar Against Mortgagor........................................................17
SECTION 3.10. Secured Obligations to Become Due on Sale...........................................17
SECTION 3.11. Application of Proceeds of Sale and Other Moneys....................................18
SECTION 3.12. Appointment of Receiver.............................................................18
SECTION 3.13. Possession, Management and Income...................................................19
SECTION 3.14. Right of Mortgagee to Perform Mortgagor's Covenants, etc............................19
SECTION 3.15. Subrogation.........................................................................19
SECTION 3.16. Remedies, etc., Cumulative..........................................................19
SECTION 3.17. Provisions Subject to Applicable Law................................................20
SECTION 3.18. No Waiver, etc......................................................................20
SECTION 3.19. Compromise of Actions, etc..........................................................20
ARTICLE IV DEFINITIONS
SECTION 4.1. Terms Defined in this Mortgage......................................................20
SECTION 4.2. Use of Defined Terms................................................................22
SECTION 4.3. Credit Agreement Definitions........................................................22
ARTICLE V MISCELLANEOUS
SECTION 5.1. Further Assurances; Financing Statements............................................22
SECTION 5.1.1. Further Assurances..................................................................22
SECTION 5.1.2. Financing Statements................................................................22
SECTION 5.2. Additional Security.................................................................23
SECTION 5.3. Defeasance; Partial Release, etc....................................................23
SECTION 5.3.1. Defeasance..........................................................................23
SECTION 5.3.2. Partial Release, etc................................................................23
SECTION 5.4. Notices, etc........................................................................23
SECTION 5.5. Waivers, Amendments, etc............................................................23
SECTION 5.6. Cross-References....................................................................23
SECTION 5.7. Headings............................................................................23
SECTION 5.8. Currency............................................................................24
SECTION 5.9. Governing Law.......................................................................24
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SECTION 5.10. Successors and Assigns, etc.........................................................24
SECTION 5.11. Waiver of Jury Trial; Submission to Jurisdiction....................................24
SECTION 5.12. Severability; Conflicts.............................................................24
SECTION 5.13. Loan Document.......................................................................25
SECTION 5.14. Usury Savings Clause................................................................25
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Schedule 1-A Legal Description of the Land
Schedule 1-B Legal Description of the Land
Schedule 2 Permitted Encumbrances
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MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND
FIXTURE FILING, dated as of July 23, 1999 (this "Mortgage"), made by STERLING
FIBERS, INC., a Delaware corporation (the "Mortgagor"), having an address at
0000 Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000-0000 to THE CIT GROUP/BUSINESS
CREDIT, INC., a New York corporation, having an address at Xxxx Xxxxxx Xxxxx,
00xx Xxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 as the Administrative
Agent and Collateral Agent under the Credit Agreement referred to below
(together with its successors and assigns from time to time acting as
Administrative Agent and Collateral under such Credit Agreement, the
"Mortgagee").
W I T N E S S E T H T H A T:
WHEREAS, the Mortgagor is on the date of delivery hereof the owner of
fee title (or easement or leasehold title if otherwise indicated on Schedule 1
hereto) to the parcel of land described in Schedule 1 hereto (the "Land") and of
the Improvements (such term and other capitalized terms used in this Mortgage
having the respective meanings specified or referred to in Article IV);
WHEREAS, pursuant to the terms, conditions and provisions of the
Revolving Credit Agreement, dated as of the date hereof (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Sterling Chemicals, Inc., Sterling Canada, Inc., Sterling Pulp Chemicals
U.S., Inc., Sterling Pulp Chemicals, Inc., Mortgagor, Sterling Chemicals Energy,
Inc. and Sterling Chemicals International, Inc., as Borrowers (collectively, the
"Borrowers"), various financial institutions, as the Lenders, DLJ Capital
Funding, Inc., as the Syndication Agent, The CIT Group/Business Credit, Inc. as
the Administrative Agent and Collateral Agent, and Credit Suisse First Boston,
as the Documentation Agent, the Lenders and the Issuer have agreed to make Loans
to, and to issue Letters of Credit for the account of, the Borrowers in the
maximum original principal amount of One Hundred Fifty Five Million Dollars
($155,000,000) (such Loans and Letters of Credit are hereinafter referred to
collectively as the "Credit Extensions").
WHEREAS, the Credit Extensions consist of, inter alia, Fixed Assets
Loans in a maximum principal amount not to exceed Seventy Million Dollars
($70,000,000) having a Stated Maturity Date of July 23, 2004; and
WHEREAS, the Mortgagor has duly authorized the execution, delivery and
performance of this Mortgage.
G R A N T:
NOW, THEREFORE, for and in consideration of the premises, and of the
mutual covenants herein contained, and in order to induce the Fixed Assets
Lenders to make the Fixed Assets Loans pursuant to the Credit Agreement, and in
order to secure the full, timely and proper payment and performance of and
compliance with each and every one of the Secured Obligations (as hereinafter
defined), the Mortgagor hereby irrevocably grants, bargains, sells, mortgages,
warrants, aliens, demises, releases, hypothecates, pledges, assigns, transfers
and conveys to the Mortgagee and its successors and assigns, forever, all of the
following (the "Collateral"):
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(a) Real Estate. All of Mortgagor's right, title and interest
in and to all of the Land and all additional lands and estates therein
now owned or hereafter acquired by the Mortgagor for use or development
with the Land or any portion thereof, together with all and singular
the tenements, rights, easements, hereditaments, rights of way,
privileges, liberties, appendages and appurtenances now or hereafter
belonging or in any way pertaining to the Land and such additional
lands and estates therein (including, without limitation, all rights
relating to storm and sanitary sewer, water, gas, electric, railway and
telephone services); all development rights, air rights, riparian
rights, water, water rights, water stock, all rights in, to and with
respect to any and all oil, gas, coal, minerals and other substances of
any kind or character underlying or relating to the Land and such
additional lands and estates therein and any interest therein; all
estate, claim, demand, right, title or interest of the Mortgagor in and
to any street, road, highway or alley, vacated or other, adjoining the
Land or any part thereof and such additional lands and estates therein;
all strips and gores belonging, adjacent or pertaining to the Land or
such additional lands and estates; and any after-acquired property
(herein collectively referred to as the "Real Estate");
(b) Improvements. All of Mortgagor's right, title and interest
in and to all buildings, structures and other improvements and any
additions and alterations thereto or replacements thereof, now or
hereafter built, constructed or located upon the Real Estate; and, to
the extent that any of the following items of property constitutes
fixtures under applicable laws, all furnishings, fixtures, fittings,
appliances, apparatus, equipment, machinery, building and construction
materials and other articles of every kind and nature whatsoever and
all replacements thereof, now or hereafter affixed or attached to,
placed upon or used in any way in connection with the complete and
comfortable use, enjoyment, occupation, operation, development and/or
maintenance of the Real Estate or such buildings, structures and other
improvements, including, but not limited to, partitions, furnaces,
boilers, oil burners, radiators and piping, plumbing and bathroom
fixtures, refrigeration, heating, ventilating, air conditioning and
sprinkler systems, other fire prevention and extinguishing apparatus
and materials, vacuum cleaning systems, gas and electric fixtures,
incinerators, compactors, elevators, engines, motors, generators and
all other articles of property which are considered fixtures under
applicable law (such buildings, structures and other improvements and
such other property are herein collectively referred to as the
"Improvements"; the Real Estate and the Improvements are herein
collectively referred to as the "Property");
(c) Goods. All of Mortgagor's right, title and interest in and
to all building materials, construction materials, appliances
(including, without limitation, stoves, ranges, ovens, disposals,
refrigerators, water fountains and coolers, fans, heaters, dishwashers,
clothes washers and dryers, water heaters, hood and fan combinations,
kitchen equipment, laundry equipment, kitchen cabinets and other
similar equipment), stocks, supplies, blinds, window shades, drapes,
carpets, floor coverings, manufacturing equipment and machinery, office
equipment, growing plants and shrubberies, control devices, equipment
(including window cleaning, building cleaning, swimming pool,
recreational, monitoring, garbage, pest control and other equipment),
motor vehicles, tools, furnishings, furniture, lighting, non-structural
additions to the Real Estate and Improvements and all other tangible
property of any kind or character, together with all replacements
thereof, now or hereafter located on or in or used or useful in
connection with the complete and comfortable use, enjoyment,
occupation, operation, development and/or maintenance of the Property,
regardless of whether or not located on or in the Property or located
elsewhere for purposes of storage, fabrication or otherwise (herein
collectively referred to as the "Goods");
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(d) Intangibles. All goodwill, trademarks, trade names, option
rights, purchase contracts, real and personal property tax refunds,
books and records and general intangibles of the Mortgagor relating to
the Property and all accounts, contract rights, instruments, chattel
paper and other rights of the Mortgagor for the payment of money for
property sold or lent, for services rendered, for money lent, or for
advances or deposits made, and any other intangible property of the
Mortgagor relating to the Property (herein collectively referred to as
the "Intangibles");
(e) Leases. All rights of the Mortgagor in, to and under all
leases, licenses, occupancy agreements, concessions and other
arrangements, oral or written, now existing or hereafter entered into,
whereby any Person agrees to pay money or any other consideration for
the use, possession or occupancy of, or any estate in, the Property or
any portion thereof or interest therein (herein collectively referred
to as the "Leases"), and the right, subject to applicable law, upon the
occurrence of any Event of Default hereunder, to receive and collect
the Rents (as hereinafter defined) paid or payable thereunder;
(f) Plans. All rights of the Mortgagor in and to all plans and
specifications, designs, drawings and other information, materials and
matters heretofore or hereafter prepared relating to the Improvements
or any construction on the Real Estate (herein collectively referred to
as the "Plans");
(g) Permits. All rights of the Mortgagor, to the extent
assignable, in, to and under all permits, franchises, licenses,
approvals and other authorizations respecting the use, occupation and
operation of the Property and every part thereof and respecting any
business or other activity conducted on or from the Property, and any
product or proceed thereof or therefrom, including, without limitation,
all building permits, certificates of occupancy and other licenses,
permits and approvals issued by governmental authorities having
jurisdiction (herein collectively referred to as the "Permits");
(h) Contracts. All right, title and interest of the Mortgagor,
to the extent assignable, in and to all agreements, contracts,
certificates, instruments, warranties, appraisals, engineering,
environmental, soils, insurance and other reports and studies, books,
records, correspondence, files and advertising materials, and other
documents, now or hereafter obtained or entered into, as the case may
be, pertaining to the construction, use, occupancy, possession,
operation, management, leasing, maintenance and/or ownership of the
Property and all right, title and interest of the Mortgagor therein
(herein collectively referred to as the "Contracts");
(i) Leases of Furniture, Furnishings and Equipment. All right,
title and interest of the Mortgagor as lessee in, to and under any
leases of furniture, furnishings, equipment and any other Goods now or
hereafter installed in or at any time used in connection with the
Property;
(j) Rents. All rents, issues, profits, royalties, avails,
income and other benefits derived or owned, directly or indirectly, by
the Mortgagor from the Property, including, without limitation, all
rents and other consideration payable by tenants, claims against
guarantors, and any cash or other securities deposited to secure
performance by tenants, under the Leases (herein collectively referred
to as "Rents");
(k) Proceeds. All proceeds of the conversion, voluntary or
involuntary of any of the foregoing into cash or liquidated claims,
including, without limitation, proceeds of insurance and condemnation
awards (herein collectively referred to as "Proceeds"); and
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(l) Other Property. All other property and rights of the
Mortgagor of every kind and character relating to the Property, and all
proceeds and products of any of the foregoing, provided however, the
Collateral shall not include any general intangibles or other rights
arising under any contracts, instruments, licenses, or other documents
as to which the grant of a lien and/or security interest would
constitute a violation of a valid and enforceable restriction in favor
of a third party on such grant, unless and until any required consents
shall have been obtained;
AND, without limiting any of the other provisions of this Mortgage, the
Mortgagor expressly grants to the Mortgagee, as secured party, a security
interest in all of those portions of the Collateral which are or may be subject
to the State Uniform Commercial Code provisions applicable to secured
transactions, subject, however, to the Permitted Encumbrances;
TO HAVE AND TO HOLD the Collateral unto the Mortgagee, its successors
and assigns, forever, subject, however, to the Permitted Encumbrances.
FURTHER to secure the full, timely and proper payment and performance
of the Secured Obligations, the Mortgagor hereby covenants and agrees with and
warrants to the Mortgagee as follows:
ARTICLE I
COVENANTS AND AGREEMENTS OF THE MORTGAGOR
SECTION I.1. Payment of Secured Obligations. (i) The Mortgagor agrees
that:
(a) it will duly and punctually pay and perform or cause to be
paid and performed each of the Secured Obligations at the time and in
accordance with the terms of the Loan Documents pertaining to the Fixed
Assets Loans, and
(b) when and as due and payable from time to time in
accordance with the terms hereof or of any other Loan Documents
pertaining to the Fixed Assets Loans, pay and perform, or cause to be
paid and performed, all other Secured Obligations.
SECTION I.2. Title to Collateral, etc. The Mortgagor represents and
warrants to and covenants with the Mortgagee that:
(a) except as otherwise permitted by the terms of the Credit
Agreement, as of the date hereof and at all times hereafter while this
Mortgage is outstanding, the Mortgagor (1) is and shall be the absolute
owner of the legal and beneficial title to the applicable interest in
the Property and to all other property included in the Collateral, and
(2) has and shall have good and marketable title in fee simple
absolute, or good and sufficient easement or leasehold title, as
currently represented in the granting clause as of the date hereof, to
the Property, subject in each case only to this Mortgage, the liens
expressly permitted pursuant to the terms of the Credit Agreement and
the encumbrances set forth in Schedule 2 hereto (collectively, the
"Permitted Encumbrances");
(b) the Mortgagor has good and lawful right, power and
authority to execute this Mortgage and to convey, transfer, assign,
mortgage and grant a security interest in the Collateral, all as
provided herein;
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(c) this Mortgage has been duly executed, acknowledged and
delivered on behalf of the Mortgagor, all consents and other actions
required to be taken by the officers, directors, shareholders and
partners, as the case may be, of the Mortgagor have been duly and fully
given and performed and this Mortgage constitutes the legal, valid and
binding obligation of the Mortgagor, enforceable against the Mortgagor
in accordance with its terms; and
(d) the Mortgagor, at its expense, will warrant and defend to
the Mortgagee and any purchaser under the power of sale herein or at
any foreclosure sale such title to the Collateral and the first
mortgage lien and first priority perfected security interest of this
Mortgage thereon and therein against all claims and demands and will
maintain, preserve and protect such lien and security interest and will
keep this Mortgage a valid, direct first mortgage lien of record on the
Property and a first priority perfected security interest in the
Collateral other than the Property, subject only to the Permitted
Encumbrances.
SECTION I.3. Title Insurance.
SECTION I.3.1. Title Insurance Policy. Concurrently with the execution
and delivery of this Mortgage, the Mortgagor, at its expense, has obtained and
delivered to the Mortgagee a loan policy or policies of title insurance in an
amount, and in form and substance, reasonably satisfactory to the Mortgagee
naming the Mortgagee as the insured, insuring the title to and the first
mortgage lien of this Mortgage on the Property, with endorsements reasonably
requested by the Mortgagee. The Mortgagor has duly paid in full all premiums and
other charges due in connection with the issuance of such policy or policies of
title insurance.
SECTION I.3.2. Title Insurance Proceeds. All proceeds received by and
payable to the Mortgagee for any loss under the loan policy or policies of title
insurance delivered to the Mortgagee pursuant to Section 1.3.1, or under any
policy or policies of title insurance delivered to the Mortgagee in substitution
therefor or replacement thereof, shall be the property of the Mortgagee and
shall be applied by the Mortgagee in accordance with the provisions of Section
2.3.
SECTION I.4. Recordation. The Mortgagor, at its expense, will at all
times cause this Mortgage and any instruments amendatory hereof or supplemental
hereto and any instruments of assignment hereof or thereof (and any appropriate
financing statements or other instruments and continuations thereof), and each
other instrument delivered in connection with the Fixed Assets Loans or any
other Loan Document pertaining to the Fixed Assets Loans and intended thereunder
to be recorded, registered and filed, to be kept recorded, registered and filed,
in such manner and in such places, and will pay all such recording,
registration, filing fees, taxes and other charges, and will comply with all
such statutes and regulations as may be required by law in order to establish,
preserve, perfect and protect the lien and security interest of this Mortgage as
a valid, direct first mortgage lien on the Property and first priority perfected
security interest in the Collateral other than the Property, subject only to the
Permitted Encumbrances. The Mortgagor will pay or cause to be paid, and will
indemnify the Mortgagee in respect of, all taxes (including interest and
penalties) at any time payable in connection with the filing and recording of
this Mortgage and any and all supplements and amendments hereto.
SECTION I.5. Payment of Impositions, etc. Subject to Section 1.8
(relating to permitted contests), the Mortgagor will pay or cause to be paid
before the same would become delinquent and before any fine, penalty, interest
or cost may be added for non-payment, all taxes, assessments, water and sewer
rates, charges, license fees, inspection fees and other governmental levies or
payments, of every kind and nature whatsoever, general and special, ordinary and
extraordinary, unforeseen as well
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as foreseen, which at any time may be assessed, levied, confirmed, imposed or
which may become a lien upon the Collateral, or any portion thereof, or which
are payable with respect thereto, or upon the rents, issues, income or profits
thereof, or on the occupancy, operation, use, possession or activities thereof,
whether any or all of the same be levied directly or indirectly or as excise
taxes or as income taxes, and all taxes, assessments or charges which may be
levied on the Secured Obligations, or the interest thereon (collectively, the
"Impositions"). The Mortgagor will deliver to the Mortgagee, upon request,
copies of official receipts or other satisfactory proof evidencing such
payments.
SECTION I.6. Insurance and Legal Requirements. Subject to Section 1.8
(relating to permitted contests), the Mortgagor, at its expense, will comply in
all material respects, or cause compliance in all material respects with
(a) all provisions of any insurance policy covering or
applicable to the Collateral or any part thereof, all requirements of
the issuer of any such policy, and all orders, rules, regulations and
other requirements of the National Board of Fire Underwriters (or any
other body exercising similar functions) applicable to or affecting the
Collateral or any part thereof or any use or condition of the
Collateral or any part thereof (collectively, the "Insurance
Requirements"); and
(b) all laws, including Environmental Laws, statutes, codes,
acts, ordinances, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, directions and
requirements of all governments, departments, commissions, boards,
courts, authorities, agencies, officials and officers, foreseen or
unforeseen, ordinary or extraordinary, which now or at any time
hereafter may be applicable to the Collateral or any part thereof, or
any of the adjoining sidewalks, curbs, vaults and vault space, if any,
streets or ways, or any use or condition of the Collateral or any part
thereof (collectively, the "Legal Requirements");
noncompliance of which could reasonably be expected to cause a Material Adverse
Effect whether or not compliance therewith shall require structural changes in
or interference with the use and enjoyment of the Collateral or any part
thereof.
SECTION I.7. Security Interests, etc. The Mortgagor will not directly
or indirectly create or permit or suffer to be created or to remain, and will
promptly discharge or cause to be discharged, any deed of trust, mortgage,
encumbrance or charge on, pledge of, security interest in or conditional sale or
other title retention agreement with respect to or any other lien on or in the
Collateral or any part thereof or the interest of the Mortgagor or the Mortgagee
therein, or any Proceeds thereof or Rents or other sums arising therefrom, other
than (a) Permitted Encumbrances, and (b) liens of mechanics, materialmen,
suppliers or vendors or rights thereto incurred in the ordinary course of the
business of the Mortgagor for sums not yet due or any such liens or rights
thereto which are at the time being contested as permitted by Section 1.8. The
Mortgagor will not postpone the payment of any sums for which liens of
mechanics, materialmen, suppliers or vendors or rights thereto have been
incurred (unless such liens or rights thereto are at the time being contested as
permitted by Section 1.8), for more than 60 days after the completion of the
action giving rise to such liens or rights thereto.
SECTION I.8. Permitted Contests. The Mortgagor at its expense may
contest, or cause to be contested, by appropriate legal proceedings conducted in
good faith and with due diligence, the amount or validity or application, in
whole or in part, of any Imposition, Legal Requirement or Insurance Requirement
or lien of a mechanic, materialman, supplier or vendor, provided that, (a) in
the case of an unpaid Imposition, lien, encumbrance or charge, such proceedings
shall suspend the collection thereof from the Mortgagor, the Mortgagee, and the
Collateral (including any rent or other income
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therefrom) and shall not materially interfere with the payment of any such rent
or income, (b) neither the Collateral nor any rent or other income therefrom nor
any part thereof or interest therein would be in any material danger of being
sold, forfeited, lost, impaired or interfered with, (c) in the case of a Legal
Requirement, neither the Mortgagor nor the Mortgagee would be in material danger
of any civil or criminal liability for failure to comply therewith, (d) the
Mortgagor shall have furnished such security, if any, as may be required in the
proceedings or as may be reasonably requested by the Mortgagee, (e) the
non-payment of the whole or any part of any Imposition will not result in the
delivery of a tax deed to the Collateral or any part thereof because of such
non-payment, (f) the payment of any sums required to be paid with respect to any
of the Fixed Asset Notes or under this Mortgage (other than any unpaid
Imposition, lien, encumbrance or charge at the time being contested in
accordance with this Section 1.8) shall not be interfered with or otherwise
affected, (g) in the case of any Insurance Requirement, the failure of the
Mortgagor to comply therewith shall not affect the validity of any insurance
required to be maintained by the Mortgagor under Section 2.1, and (h) that
adequate reserves, determined in accordance with GAAP, shall have been set aside
on the Mortgagor's books.
SECTION I.9. Leases. The Mortgagor represents and warrants to the
Mortgagee that, as of the date hereof, there are no written or oral leases or
other agreements of any kind or nature relating to the occupancy of any portion
of the Property by any Person other than the Mortgagor other than the Permitted
Encumbrances. Except as is permitted by the Credit Agreement, the Mortgagor will
not enter into any such written or oral lease or other agreement with respect to
any portion of the Property without first obtaining the written consent of the
Mortgagee.
SECTION I.10. Compliance with Instruments. The Mortgagor at its expense
will promptly comply in all material respects with all rights of way or use,
privileges, franchises, servitudes, licenses, easements, tenements,
hereditaments and appurtenances forming a part of the Property and all
instruments creating or evidencing the same, in each case, to the extent
compliance therewith is required of the Mortgagor under the terms thereof.
Except as is permitted by the Credit Agreement, the Mortgagor will not take any
action which may result in a forfeiture or termination of the rights afforded to
the Mortgagor under any such instruments and will not, without the prior written
consent of the Mortgagee, amend any of such instruments in any manner adverse to
the Fixed Assets Lenders in any material respect.
SECTION I.11. Maintenance and Repair, etc. Subject to the provisions of
Section 1.12, the Mortgagor will keep or cause to be kept all presently and
subsequently erected or acquired Improvements and the sidewalks, curbs, vaults
and vault space, if any, located on or adjoining the same, and the streets and
the ways adjoining the same, in good and substantial order and repair and in
such a fashion that neither the value nor utility of the Collateral will be
diminished, and, at its sole cost and expense, will promptly make or cause to be
made all necessary and appropriate repairs, replacements and renewals thereof,
whether interior or exterior, structural or nonstructural, ordinary or
extraordinary, foreseen or unforeseen, so that its business carried on in
connection therewith may be properly conducted at all times. The Mortgagor at
its expense will do or cause to be done all shoring of foundations and walls of
any building or other Improvements on the Property and (to the extent permitted
by law) of the ground adjacent thereto, and every other act necessary or
appropriate for the preservation and safety of the Property by reason of or in
connection with any excavation or other building operation upon the Property and
upon any adjoining property, whether or not the Mortgagor shall, by any Legal
Requirement, be required to take such action or be liable for failure to do so.
SECTION I.12. Alterations, Additions, etc. So long as no Event of
Default shall have occurred and be continuing, the Mortgagor shall have the
right at any time and from time to time to
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make or cause to be made reasonable alterations of and additions to the Property
or any part thereof, provided that any alteration or addition: (a) shall not
change the general character or the use of the Property or reduce the fair
market value thereof below its value immediately before such alteration or
addition, or impair the usefulness of the Property; (b) is effected with due
diligence, in a good and workmanlike manner and in compliance in all material
respects with all Legal Requirements and Insurance Requirements; (c) subject to
Section 1.8 is promptly and fully paid for, or caused to be paid for, by the
Mortgagor; and (d) is made, in case the estimated cost of such alteration or
addition exceeds U.S. $1,000,000, under the supervision of a qualified architect
or engineer or another professional.
SECTION I.13. Acquired Property Subject to Lien. Subject to the
Permitted Encumbrances, all property at any time acquired by the Mortgagor and
provided or required by this Mortgage to be or become subject to the lien and
security interest hereof, whether such property is acquired by exchange,
purchase, construction or otherwise, shall forthwith become subject to the lien
and security interest of this Mortgage without further action on the part of the
Mortgagor or the Mortgagee. The Mortgagor, at its expense, will execute and
deliver to the Mortgagee (and will record and file as provided in Section 1.4)
an instrument supplemental to this Mortgage reasonably satisfactory in substance
and form to the Mortgagee, whenever such an instrument is necessary under
applicable law to subject to the lien and security interest of this Mortgage all
right, title and interest of the Mortgagor in and to all property provided or
required by this Mortgage to be subject to the lien and security interest
hereof.
SECTION I.14. Assignment of Rents, Proceeds, etc. The assignment, grant
and conveyance of the Leases, Rents, Proceeds and other rents, income, proceeds
and benefits of the Collateral contained in the Granting Clause of this Mortgage
shall constitute an absolute, present and irrevocable assignment, grant and
conveyance, provided, however, that permission is hereby given to the Mortgagor,
so long as no Event of Default has occurred and be continuing hereunder, to
collect, receive and apply such Rents, Proceeds and other rents, income,
proceeds and benefits as they become due and payable, but not further in advance
thereof than is customary, and in accordance with all of the other terms,
conditions and provisions hereof, of the Loan Documents, and of the Leases,
contracts, agreements and other instruments with respect to which such payments
are made or such other benefits are conferred. Upon the occurrence and
continuance of an Event of Default, such permission shall terminate immediately
and automatically, without notice to the Mortgagor or any other Person except as
required by law, and shall not be reinstated upon a cure of such Event of
Default without the express written consent of the Mortgagee. Such assignment
shall be fully effective without any further action on the part of the Mortgagor
or the Mortgagee and the Mortgagee shall be entitled, at its option, upon the
occurrence and continuance of an Event of Default hereunder, to collect, receive
and apply all Rents, Proceeds and all other rents, income, proceeds and benefits
from the Collateral, including all right, title and interest of the Mortgagor in
any escrowed sums or deposits or any portion thereof or interest therein,
whether or not the Mortgagee takes possession of the Collateral or any part
thereof. The Mortgagor further grants to the Mortgagee the right, at the
Mortgagee's option, upon the occurrence and continuance of an Event of Default
hereunder, to:
(a) enter upon and take possession of the Property for the
purpose of collecting Rents, Proceeds and said rents, income, proceeds
and other benefits;
(b) dispossess by the customary summary proceedings any
tenant, purchaser or other Person defaulting in the payment of any
amount when and as due and payable, or in the performance of any other
obligation, under any Lease, contract or other instrument to which said
Rents, Proceeds or other rents, income, proceeds or benefits relate;
(c) let or convey the Collateral or any portion thereof or any
interest therein; and
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(d) apply Rents, Proceeds and such rents, income, proceeds and
other benefits, after the payment of all necessary fees, charges and
expenses, on account of the Secured Obligations in accordance with
Section 3.11.
SECTION I.15. No Claims Against the Mortgagee. Nothing contained in
this Mortgage shall constitute any consent or request by the Mortgagee, express
or implied, for the performance of any labor or the furnishing of any materials
or other property in respect of the Property or any part thereof, or be
construed to permit the making of any claim against the Mortgagee in respect of
labor or services or the furnishing of any materials or other property or any
claim that any lien based on the performance of such labor or the furnishing of
any such materials or other property is prior to the lien and security interest
of this Mortgage. ALL CONTRACTORS, SUBCONTRACTORS, VENDORS AND OTHER PERSONS
DEALING WITH THE PROPERTY, OR WITH ANY PERSONS INTERESTED THEREIN, ARE HEREBY
REQUIRED TO TAKE NOTICE OF THE PROVISIONS OF THIS SECTION.
SECTION I.16. Indemnification. The Mortgagor will protect, indemnify,
save harmless and defend the Mortgagee, the Fixed Assets Lenders, and each of
their respective officers, directors, shareholders, employees, representatives
and agents (collectively, the "Indemnified Parties" and individually, an
"Indemnified Party"), from and against any and all liabilities, obligations,
claims, damages, penalties, causes of action, costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) imposed upon or
incurred by or asserted against any Indemnified Party by reason of (a) ownership
of an interest in this Mortgage, any other Loan Document or the Property, (b)
any accident, injury to or death of persons or loss of or damage to or loss of
the use of property occurring on or about the Property or any part thereof or
the adjoining sidewalks, curbs, vaults and vault spaces, if any, streets, alleys
or ways, (c) any use, non-use or condition of the Property or any part thereof
or the adjoining sidewalks, curbs, vaults and vault spaces, if any, streets,
alleys or ways, (d) any failure on the part of the Mortgagor to perform or
comply with any of the terms of this Mortgage or any Loan Document, (e)
performance of any labor or services or the furnishing of any materials or other
property in respect of the Collateral or any part thereof made or suffered to be
made by or on behalf of the Mortgagor, (f) any negligence or tortious act on the
part of the Mortgagor or any of its agents, contractors, lessees, licensees or
invitees, (g) any work in connection with any alterations, changes, new
construction or demolition of or additions to the Property, or (h) (i) any
Hazardous Material on, in, under or affecting all or any portion of the
Property, the groundwater, or any surrounding areas, (ii) any misrepresentation,
inaccuracy or breach of any warranty, covenant or agreement contained or
referred to in Sections 1.21 and 1.22, (iii) any violation or claim of violation
by the Mortgagor of any Environmental Laws, or (iv) the imposition of any lien
for damages caused by or the recovery of any costs for the cleanup, release or
threatened release of any Hazardous Material, except to the extent that any of
the matters described in subsections (a)-(h) arise out of the gross negligence
or willful misconduct of any Indemnified Party. If any action or proceeding be
commenced, to which action or proceeding any Indemnified Party is made a party
by reason of the execution of this Mortgage or any other Loan Document, or in
which it becomes necessary to defend or uphold the lien of this Mortgage, all
sums paid by the Indemnified Parties, for the expense of any litigation to
prosecute or defend the rights and lien created hereby or otherwise, shall be
paid by the Mortgagor to such Indemnified Parties, as the case may be, as
hereinafter provided. The Mortgagor will pay and save the Indemnified Parties
harmless against any and all liability with respect to any intangible personal
property tax or similar imposition of the State or any subdivision or authority
thereof now or hereafter in effect, to the extent that the same may be payable
by the Indemnified Parties in respect of this Mortgage, any Loan Document or any
Secured Obligation. All amounts payable to the Indemnified Parties under this
Section 1.16 shall be deemed indebtedness secured by this Mortgage and any such
amounts which are not paid within ten (10) days after written demand therefor
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by any Indemnified Party shall bear interest at the rate provided for in Section
3.2.2 of the Credit Agreement from the date of such demand. In case any action,
suit or proceeding is brought against any Indemnified Party by reason of any
such occurrence, the Mortgagor, upon request of such Indemnified Party, will, at
the Mortgagor's expense, resist and defend such action, suit or proceeding or
cause the same to be resisted or defended by counsel designated by the Mortgagor
and approved by such Indemnified Party. The obligations of the Mortgagor under
this Section 1.16 shall survive any discharge or reconveyance of this Mortgage
and payment in full of the Secured Obligations.
SECTION I.17. No Credit for Payment of Taxes. The Mortgagor shall not
be entitled to any credit against the Secured Obligations by reason of the
payment of any tax on the Property or any part thereof or by reason of the
payment of any other Imposition, and shall not apply for or claim any deduction
from the taxable value of the Property or any part thereof by reason of this
Mortgage.
SECTION I.18. Intentionally Omitted
SECTION I.19. No Transfer of the Property. Except as is provided in the
Credit Agreement, and except for the Permitted Encumbrances, the Mortgagor shall
not, without the prior written consent of the Mortgagee, which consent may be
granted or withheld in the sole and absolute discretion of the Mortgagee (i)
sell, convey, assign or otherwise transfer the Property or any portion of the
Mortgagor's interest therein or (ii) further encumber the Property or permit the
Property to become encumbered by any lien, claim, security interest or other
indebtedness of any kind or nature other than the Permitted Encumbrances.
SECTION I.20 Security Agreement. With respect to the items of personal
property and fixtures referred to and described in the Granting Clause of this
Mortgage and included as part of the Collateral, this Mortgage is hereby made
and declared to be a security agreement encumbering each and every item of
personal property and fixtures now or hereafter owned by Mortgagor and included
herein as a part of the Collateral, in compliance with the provisions of the
Uniform Commercial Code as enacted in the State. In this respect, Mortgagor, as
"Debtor", expressly grants to Mortgagee, as "Secured Party", a security interest
in and to all of the property now or hereafter owned by Mortgagor which
constitutes the personal property and fixtures hereinabove referred to and
described in this Mortgage, including all extensions, accessions, additions,
improvements, betterments, renewals, replacements and substitutions thereof or
thereto, and all proceeds from the sale or other disposition thereof. Mortgagor
agrees that Mortgagee may file this Mortgage, or a reproduction thereof, in the
real estate records or other appropriate index, as, and this Mortgage shall be
deemed to be, a financing statement filed as a fixture filing in accordance with
the laws of the State. Any reproduction of this Mortgage or of any other
security agreement or financing statement executed by Mortgagor shall be
sufficient as a financing statement. In addition, Mortgagor agrees to execute
and deliver to Mortgagee, upon Mortgagee's request, any other security agreement
and financing statements, as well as extensions, renewals, and amendments
thereof, and reproductions of this Mortgage, in such form as Mortgagee may
reasonably require to perfect a security interest with respect to said items.
Mortgagor shall pay all costs of filing such financing statements and any
extensions, renewals, amendments and releases thereof, and shall pay all
reasonable costs and expenses of any record searches for financing statements
Mortgagee may reasonably require. Except as is provided in the Credit Agreement,
and except for the Permitted Encumbrances, without the prior written consent of
Mortgagee, Mortgagor shall not create or suffer to be created pursuant to the
Uniform Commercial Code any other security interest in the above-described
personal property and fixtures, including any replacements and additions
thereto. Upon the occurrence and continuance of an Event of Default under this
Mortgage, the Mortgagee shall have and shall be entitled to exercise any and all
of the rights and remedies (i) as prescribed in this Mortgage, or (ii) as
prescribed by general law, or (iii) as prescribed by the specific
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statutory provisions now or hereafter enacted and specified in said Uniform
Commercial Code, all at Mortgagee's sole election. Mortgagor and Mortgagee agree
that the filing of any financing statements in the records normally having to do
with personal property shall not in any way affect the agreement of Mortgagor
and Mortgagee that everything located in, on or about, or used or intended to be
used with or in connection with the use, operation or enjoyment of, the
Collateral, which is described or reflected as a fixture in this Mortgage, is,
and at all times and for all purposes and in all proceedings, both legal and
equitable, shall be, regarded as part of the Real Estate conveyed hereby.
Mortgagor warrants that Mortgagor's name, identity and address are as set forth
herein. The mailing address of the Mortgagee from which information may be
obtained concerning the security interest created herein is also set forth
herein. This information hereof is provided in order that this Mortgage shall
comply with the requirements of the Uniform Commercial Code as enacted in the
State for instruments to be filed as financing statements. In accordance with
the laws of the State, this Mortgage shall remain effective as a fixture filing
until this Mortgage is released or satisfied of record or its effectiveness
otherwise terminates as to the Collateral.
SECTION I.21. Representations and Warranties. In order to induce the
Mortgagee to enter into this Mortgage, the Credit Agreement and the other Loan
Documents, the Mortgagor agrees that all of the representations and warranties
set forth in the Credit Agreement are incorporated into this Mortgage by
reference as if fully set forth herein.
SECTION I.22. Mortgagor's Covenants. In order to induce the Mortgagee
to enter into this Mortgage, the Credit Agreement and the other Loan Documents,
the Mortgagor agrees that all of the covenants of Mortgagor set forth in the
Credit Agreement are incorporated into this Mortgage by reference as if fully
set forth herein.
SECTION I.23. Attornment. Mortgagee hereby acknowledges and agrees that
the liens granted herein are subject to the rights of certain lessees under the
Leases as disclosed in the Credit Agreement and will be subject to the rights of
lessees under any Leases entered into by Mortgagor after the date hereof which
are permitted as Permitted Real Estate Liens pursuant to the Credit Agreement,
subject to the express rights contained in the applicable Lease. The rights of
the tenants under the Leases to the leased premises shall not be adversely
affected by the exercise by Mortgagee of any of its rights hereunder, nor shall
any such tenant be in any way deprived of its rights under the applicable Lease
except in accordance with the terms of such Lease. In the event that Mortgagee
succeeds to the interest of Mortgagor under a Lease, such Lease shall not be
terminated or affected thereby except as set forth therein, and any sale of the
applicable leased premises by Mortgagee or pursuant to the judgment of any court
in an action to enforce the remedies provided for in this Mortgage shall be made
subject to such Lease and the rights of such tenant expressly set forth
thereunder. If Mortgagee succeeds to the interests of Mortgagor in and to the
applicable leased premises or under such Lease or enters into possession of such
leased premises, the Mortgagee, and such tenants, shall be bound to each other
under all of the express terms, covenants and conditions of such Lease, as if
the Mortgagee was originally the Mortgagor as lessor thereunder.
ARTICLE II
INSURANCE; DAMAGE, DESTRUCTION OR TAKING, ETC.
SECTION II.1. Insurance.
SECTION II.1.1. Risks to be Insured. The Mortgagor will, at its
expense, maintain or cause to be maintained with insurance carriers approved by
the Mortgagee (a) insurance with respect to the
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Improvements against loss or damage by fire, lightning and such other risks as
are included in standard "all-risk" policies, in amounts sufficient to prevent
the Mortgagor and the Mortgagee from becoming a co-insurer of any partial loss
under the applicable policies, but in any event in amounts not less than the
then full insurable value (actual replacement value) of the Improvements, as
determined by the Mortgagor in accordance with generally accepted insurance
practice and approved by the Mortgagee or, at the request of the Mortgagee, as
determined at the Mortgagor's expense by the insurer or insurers or by an expert
approved by the Mortgagee, (b) comprehensive public liability, including bodily
injury and product liability and property damage, insurance, with personal
injury endorsements, applicable to the Property in such amounts as are
customarily carried by Persons operating similar properties in the same general
locality, but in any event with a combined single limit of not less than Twenty
Million Dollars ($20,000,000) per occurrence, (c) explosion insurance in respect
of any steam and pressure boilers and similar apparatus located in the Property
in such amounts as are usually carried by persons operating similar properties
in the same general locality, but in any event in an amount not less than Twenty
Million Dollars ($20,000,000), (d) business interruption insurance (including
added expense coverage) against all insurable perils for a period of not fewer
than twelve (12) months (subject to a reasonable aggregate deductible not
exceeding ten (10) days per any occurrence), (e) worker's compensation insurance
to the full extent required by applicable law for all employees of the Mortgagor
engaged in any work on or about the Property and employer's liability insurance
with a limit of not less than Ten Million Dollars ($10,000,000) for each
occurrence, (f) all-risk, builders' risk insurance with respect to the Property
during any period during which there is any construction work being performed,
against loss or damage by fire or other risks, including vandalism, malicious
mischief and sprinkler leakage, as are included in so-called "extended coverage"
clauses at the time available and (g) such other insurance with respect to the
Property in such amounts and against such insurable hazards as the Mortgagee
from time to time may reasonably require by written notice to the Mortgagor.
SECTION II.1.2. Policy Provisions. All insurance maintained by the
Mortgagor pursuant to Section 2.1.1 shall (a) (except for worker's compensation
insurance) list the Mortgagor and the Mortgagee, as additional insureds as their
respective interests may appear, (b) (except for worker's compensation and
public liability insurance) provide that the proceeds for any losses shall be
adjusted by the Mortgagor subject to the approval of the Mortgagee in the event
the proceeds shall exceed $1,000,000, and shall be payable to the Mortgagee, to
be held and applied as provided in Section 2.3, (c) include effective waivers by
the insurer of all rights of subrogation against any named insured, the
indebtedness secured by this Mortgage and the Property and all claims for
insurance premiums against the Mortgagee, (d) provide that any losses shall be
payable notwithstanding (i) any act, failure to act or negligence of or
violation of warranties, declarations or conditions contained in such policy by
any named insured, (ii) the occupation or use of the Property for purposes more
hazardous than permitted by the terms thereof, (iii) any foreclosure or other
action or proceeding taken by the Mortgagee pursuant to any provision of this
Mortgage, or (iv) any change in title or ownership of the Property, (e) provide
that no cancellation, reduction in amount or material change in coverage thereof
or any portion thereof shall be effective until at least thirty (30) days after
receipt by the Mortgagee of written notice thereof, (f) provide that any notice
under such policies shall be simultaneously delivered to the Mortgagee, and (g)
be satisfactory in all other reasonable respects to the Mortgagee. Any insurance
maintained pursuant to this Section 2.1 may be evidenced by blanket insurance
policies covering the Property and other properties or assets of the Mortgagor,
provided that any such policy shall specify the portion, if less than all, of
the total coverage of such policy that is allocated to the Property and shall in
all other respects comply with the requirements of this Section 2.1.
SECTION II.1.3. Delivery of Policies, etc. The Mortgagor will deliver
to the Mortgagee, promptly upon request, (a) certificates of all policies
evidencing all insurance required to be maintained
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under Section 2.1.1 (or, in the case of blanket policies, certificates thereof
by the insurers together with a counterpart of each blanket policy), and (b)
evidence as to the payment of all premiums due thereon (with respect to public
liability insurance policies, all installments for the current year due thereon
to such date), provided that the Mortgagee shall not be deemed by reason of its
custody of such certificates to have knowledge of the contents thereof or of the
applicable policies. The Mortgagor will also deliver to the Mortgagee prior to
the expiration of any policy a binder or certificate of the insurer evidencing
the replacement thereof and when the new policy is issued a certificate of such
new policy (or, in the case of a replacement blanket policy, a certificate
thereof of the insurer together with a counterpart of the blanket policy). In
the event the Mortgagor shall fail to effect or maintain any insurance required
to be effected or maintained pursuant to the provisions of this Section 2.1, the
Mortgagor will indemnify the Mortgagee against damage, loss or liability
resulting from all risks for which such insurance should have been effected or
maintained.
SECTION II.1.4. Separate Insurance. The Mortgagor will not take out
separate insurance concurrent in form or contributing in the event of loss with
that required to be maintained pursuant to this Section 2.1.
SECTION II.2. Damage, Destruction or Taking; Mortgagor to Give Notice;
Assignment of Awards. In case of
(a) any material damage to or destruction of the Collateral or
any material part thereof, or
(b) any taking, whether for permanent or temporary use, of all
or any material part of the Collateral or any material interest therein
or material right accruing thereto, as the result of the exercise of
the right of condemnation or eminent domain, or a change of grade
affecting the Collateral or any portion thereof (a "Taking"), or the
commencement of any proceedings or negotiations which may result in a
Taking,
the Mortgagor will promptly give written notice thereof to the Mortgagee,
generally describing the nature and extent of such damage or destruction and the
Mortgagor's best estimate of the cost of restoring the Collateral, or the nature
of such proceedings or negotiations and the nature and extent of the Taking
which might result therefrom, as the case may be. The Mortgagee shall be
entitled to all insurance proceeds payable on account of such damage or
destruction and to all awards or payments allocable to the Collateral on account
of such Taking up to the amount of the Secured Obligations, and the Mortgagor
hereby irrevocably assigns, transfers and sets over to the Mortgagee all rights
of the Mortgagor to any such proceeds, awards or payments and irrevocably
authorizes and empowers the Mortgagee, at its option, in the name of the
Mortgagor or otherwise, to file and prosecute what would otherwise be the
Mortgagor's claim for any such proceeds, award or payment and to collect,
receipt for and retain the same for disposition in accordance with Section 2.3.
The Mortgagor will pay all reasonable costs and expenses incurred by the
Mortgagee in connection with any such damage, destruction or Taking and seeking
and obtaining any insurance proceeds, awards or payments in respect thereof.
SECTION II.3. Application of Proceeds and Awards. The Mortgagee may, at
its option, apply all amounts recovered under any insurance policy required to
be maintained by the Mortgagor hereunder and all awards received by it on
account of any Taking in any one or more of the following ways:
(a) to the payment of the reasonable costs and expenses
incurred by the Mortgagee in obtaining any such insurance proceeds or
awards, including the fees and expenses of
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attorneys and insurance and other experts and consultants, the costs of
litigation, arbitration, mediation, investigations and other judicial,
administrative or other proceedings and all other out-of-pocket
expenses;
(b) to the payment of the principal of the Fixed Asset Loans
and any interest (including post-petition interest payable in any
proceedings for bankruptcy under applicable law ("Post-Petition
Interest") to the extent such interest is a Secured Obligation) accrued
and unpaid thereon, without regard to whether any portion or all of
such amounts shall be matured or unmatured, and, in case such amount
shall be insufficient to pay in full all such amounts, then such amount
shall be applied, first, to the payment of all amounts of interest
(including Post-Petition Interest to the extent such interest is a
Secured Obligation) accrued on the Fixed Asset Loans and unpaid,
second, to the payment of all amounts of principal at the time
outstanding;
(c) to the payment of, or the application to, any Secured
Obligation (other than as provided in clause (b) above);
(d) to fulfill any of the other covenants contained herein, in
the Credit Agreement pertaining to the Fixed Assets Loans, or in any
other Loan Document pertaining to the Fixed Assets Loans, as the
Mortgagee may determine in its sole discretion;
(e) to the Mortgagor for application to the cost of restoring
the Collateral and the replacement of Goods destroyed, damaged or
taken; or
(f) to the Mortgagor.
Notwithstanding the foregoing provisions of this Section 2.3 to the
contrary (but subject to the provisions of Section 2.4), and if each of the
following conditions is satisfied, the Mortgagee, upon request of the Mortgagor,
shall apply insurance proceeds or condemnation awards received by it to the
restoration or replacement of the Collateral, to the extent necessary for the
restoration or replacement thereof:
(i) there shall then exist no uncured Event of
Default;
(ii) the Mortgagor shall furnish to the Mortgagee a
certificate of an architect or engineer reasonably acceptable
to the Mortgagee stating (x) that the Collateral is capable of
being restored, prior to the maturity of the Credit Agreement,
to substantially the same condition as existed prior to the
casualty or Taking, (y) the aggregate estimated direct and
indirect costs of such restoration and (z) as to any Taking,
that the property taken in such Taking, or sold under threat
thereof, is not necessary to the Mortgagor's customary use or
occupancy of the Property or Mortgagor otherwise provides
Mortgagee adequate assurance that the Collateral can be
restored; and
(iii) in the event that the estimated cost of
restoration set forth in the certificate of such architect or
engineer (and such revisions to such estimate as are from time
to time made) exceeds the net insurance proceeds or
condemnation awards actually received from time to time, the
Mortgagor shall deposit the amount of such excess with the
Mortgagee.
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In the event that such insurance proceeds or condemnation awards are to
be utilized in the restoration of the Collateral, the Mortgagee shall disburse
such Proceeds and the additional amounts deposited by the Mortgagor for such
restoration after receipt of a written request for disbursement, on not fewer
than five (5) nor more than twelve (12) Business Days notice and, to the extent
applicable, in accordance with the Mortgagee's customary construction loan
procedures and conditions. In the event that such insurance or condemnation
awards are to be utilized to replace the Collateral so destroyed or taken, the
Mortgagee shall disburse such Proceeds after receipt of a written request for
disbursement, on not fewer than five (5) Business Days nor more than twelve (12)
Business Days notice simultaneously with the acquisition of such replacement
property by the Mortgagor. In the event that, after the restoration or
replacement of the Collateral, any insurance or condemnation awards shall
remain, such amount shall be paid to the Mortgagor. Insurance proceeds and
condemnation awards shall be invested in the manner reasonably requested by the
Mortgagor and approved by the Mortgagee, and all interest earned thereon shall
be applied as provided in this Section 2.3. If, prior to the receipt by the
Mortgagee of such insurance proceeds or condemnation awards, the Collateral
shall have been sold on foreclosure, the Mortgagee shall have the right to
receive said insurance proceeds or condemnation awards to the extent of any
deficiency found to be due upon such sale, with legal interest thereon, whether
or not a deficiency judgment shall have been sought or recovered or denied, and
the reasonable attorneys' fees, costs and disbursements incurred by the
Mortgagee in connection with the collection of such award or payment.
SECTION II.4. Total Taking and Total Destruction. In the event of a
Total Destruction or a Total Taking, the Mortgagee shall apply all amounts
recovered under any insurance policy referred to in Section 2.1.1 and all awards
received by it on account of any such Taking as follows:
(a) first, to the payment of the reasonable costs and expenses
incurred by the Mortgagee in obtaining any such insurance proceeds or
awards, including the fees and expenses of attorneys and insurance and
other experts and consultants, the costs of litigation, arbitration,
mediation, investigations and other judicial, administrative or other
proceedings and all other out-of-pocket expenses;
(b) second, to the payment of the principal of the Fixed
Assets Loans and any interest (including Post-Petition Interest to the
extent such interest is a Secured Obligation) accrued and unpaid
thereon, without regard to whether any portion or all of such amounts
shall be matured or unmatured, and, in case such amount shall be
insufficient to pay in full all such amounts, then such amount shall be
applied, first, to the payment of all amounts of interest (including
Post-Petition Interest to the extent such interest is a Secured
Obligation) accrued on the Fixed Assets Loans and unpaid, and second,
to the payment of all amounts of principal at the time outstanding;
(c) third, to the payment of, or the application to, any
Secured Obligation (other than as provided in clause (b) above);
(d) fourth, to fulfill any of the other covenants contained
herein as the Mortgagee may determine; and
(e) fifth, the balance, if any, to the Mortgagor.
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ARTICLE III
EVENTS OF DEFAULT; REMEDIES, ETC.
SECTION III.1. Events of Default; Acceleration. If an "Event of
Default" (pursuant to and as defined in the Credit Agreement) shall have
occurred and be continuing, then and in any such event the Mortgagee may at any
time thereafter (unless all Events of Default shall theretofore have been
remedied and all costs and expenses, including, without limitation, attorneys'
fees and expenses incurred by or on behalf of the Mortgagee, shall have been
paid in full by the Mortgagor) declare, by written notice to the Mortgagor, the
Fixed Assets Loans and all other Secured Obligations to be due and payable
immediately or on a date specified in such notice (provided that, upon the
occurrence of any Event of Default described in Section 8.1.9 of the Credit
Agreement, the Fixed Assets Loans and all other Secured Obligations shall
automatically become due and payable), and on such date the same shall be and
become due and payable, together with interest accrued thereon, without
presentment, demand, protest or notice, all of which the Mortgagor hereby
waives. The Mortgagor will pay on demand all costs and expenses, including,
without limitation, attorneys' fees and expenses, incurred by or on behalf of
the Mortgagee in enforcing this Mortgage, or any other Loan Document evidencing
or securing the Fixed Assets Loans, or occasioned by any default hereunder or
thereunder.
SECTION III.2. Legal Proceedings; Judicial Foreclosure. If an Event of
Default shall have occurred and be continuing, the Mortgagee at any time may, at
its election, proceed at law or in equity or otherwise to enforce the payment
and performance of the Secured Obligations in accordance with the terms hereof
and thereof and to foreclose the lien of this Mortgage as against all or any
part of the Collateral and to have the same sold under the judgment or decree of
a court of competent jurisdiction. The Mortgagee shall be entitled to recover in
such proceedings all costs incident thereto, including attorneys' fees and
expenses in such amounts as may be fixed by the court.
SECTION III.3. Power of Sale. If an Event of Default shall have
occurred and be continuing, the Mortgagee may grant, bargain, sell, assign,
transfer, convey and deliver the whole or, from time to time, any part of the
Collateral, or any interest in any part thereof, at any private sale or at
public auction, with or without demand, advertisement or notice, for cash, on
credit or for other property, for immediate or future delivery, and for such
price or prices and on such terms as the Mortgagee in its sole discretion may
determine, or as may be required by law, and upon such sale the Mortgagee may
execute and deliver to the purchaser(s) instruments of conveyance pursuant to
the terms hereof and to applicable laws. Without limiting the authority granted
in this Section 3.3, the Mortgagee shall, without demand on the Mortgagor, after
the lapse of such time as may then be required by law, and notice of default and
notice of sale having been given as then required by law, sell the Collateral on
the date and at the time and place designated in the notice of sale, either as a
whole or in separate parcels and in such order as the Mortgagee may determine,
but subject to any statutory right of the Mortgagor to direct the order in which
such property, if consisting of several known lots, parcels or interests, shall
be sold, at public auction to the highest bidder, the purchase price payable in
lawful money of the United States at the time of sale. The Person conducting the
sale may, for any cause deemed expedient, postpone the sale from time to time
until it shall be completed and, in every such case, notice of postponement
shall be given by public declaration thereof by such Person at the time and
place last appointed for the sale; provided that, if the sale is postponed for
longer than one (1) day beyond the day designated in the notice of sale, notice
of sale and notice of the time, date and place of sale shall be given in the
same manner as the original notice of sale. The Mortgagee shall execute and
deliver to the purchaser at any such sale a mortgagee's deed conveying the
property so sold, but without any covenant or warranty, express or implied. The
recitals in such mortgagee's deed of any matters or facts shall be conclusive
proof of the truthfulness thereof. Any Person, including the Mortgagee, may bid
at the sale.
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SECTION III.4. Uniform Commercial Code Remedies. If an Event of Default
shall have occurred and be continuing, the Mortgagee may exercise from time to
time and at any time any rights and remedies available to it under applicable
law upon default in the payment of indebtedness, including, without limitation,
any right or remedy available to it as a secured party under the Uniform
Commercial Code of the State. The Mortgagor shall, promptly upon request by the
Mortgagee, assemble the Collateral, or any portion thereof generally described
in such request, and make it available to the Mortgagee at such place or places
designated by the Mortgagee and reasonably convenient to the Mortgagee or the
Mortgagor. If the Mortgagee elects to proceed under the Uniform Commercial Code
of the State to dispose of portions of the Collateral, the Mortgagee, at its
option, may give the Mortgagor notice of the time and place of any public sale
of any such property, or of the date after which any private sale or other
disposition thereof is to be made, by sending notice by registered or certified
first class mail, postage prepaid, to the Mortgagor at least ten (10) days
before the time of the sale or other disposition. If any notice of any proposed
sale, assignment or transfer by the Mortgagee of any portion of the Collateral
or any interest therein is required by law, the Mortgagor conclusively agrees
that ten (10) days notice to the Mortgagor of the date, time and place (and, in
the case of a private sale, the terms) thereof is reasonable.
SECTION III.5. Mortgagee Authorized to Execute Deeds, etc. The
Mortgagor irrevocably appoints the Mortgagee (which appointment is coupled with
an interest) the true and lawful attorney of the Mortgagor, in its name and
stead and on its behalf, for the purpose of effectuating any sale, assignment,
transfer or delivery for the enforcement hereof, whether pursuant to power of
sale, foreclosure or otherwise, to execute and deliver all such deeds, bills of
sale, assignments, releases and other instruments as may be designated in any
such request.
SECTION III.6. Purchase of Collateral by Mortgagee. The Mortgagee may
be a purchaser of the Collateral or of any part thereof or of any interest
therein at any sale thereof, whether pursuant to power of sale, foreclosure or
otherwise, and the Mortgagee may apply upon the purchase price thereof the
indebtedness secured hereby owing to the Mortgagee. Such purchaser shall, upon
any such purchase, acquire good title to the properties so purchased, free of
the security interest and lien of this Mortgage and free of all rights of
redemption in the Mortgagor.
SECTION III.7. Receipt a Sufficient Discharge to Purchaser. Upon any
sale of the Collateral or any part thereof or any interest therein, whether
pursuant to power of sale, foreclosure or otherwise, the receipt of the
Mortgagee or the officer making the sale under judicial proceedings shall be a
sufficient discharge to the purchaser for the purchase money, and such purchaser
shall not be obliged to see to the application thereof.
SECTION III.8. Waiver of Appraisement, Valuation, etc. The Mortgagor
hereby waives, to the fullest extent it may lawfully do so, the benefit of all
appraisement, valuation, stay, extension and redemption laws now or hereafter in
force and all rights of marshaling in the event of any sale of the Collateral or
any part thereof or any interest therein.
SECTION III.9. Sale a Bar Against Mortgagor. Any sale of the Collateral
or any part thereof or any interest therein under or by virtue of this Mortgage,
whether pursuant to power of sale, foreclosure or otherwise, shall forever be a
bar against the Mortgagor.
SECTION III.10. Secured Obligations to Become Due on Sale. Except as
otherwise provided in the Credit Agreement, upon any sale of the Collateral or
any portion thereof or interest therein by virtue of the exercise of any remedy
by the Mortgagee under or by virtue of this Mortgage, whether pursuant to power
of sale, foreclosure or otherwise in accordance with this Mortgage or by virtue
of
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any other remedy available at law or in equity or by statute or otherwise, at
the option of the Mortgagee, any sums or monies due and payable pursuant to the
Credit Agreement pertaining to the Fixed Assets Loans, the Loan Documents
pertaining to the Fixed Assets Loans and in connection with the Fixed Assets
Loans and/or the Secured Obligations shall, if not previously declared due and
payable, immediately become due and payable, together with interest accrued
thereon, and all other indebtedness which this Mortgage by its terms secures.
SECTION III.11. Application of Proceeds of Sale and Other Moneys.
Except as otherwise provided in the Credit Agreement, the proceeds of any sale
of the Collateral or any part thereof or any interest therein under or by virtue
of this Mortgage, whether pursuant to power of sale, foreclosure or otherwise,
and all other moneys at any time held by the Mortgagee as part of the
Collateral, shall be applied in such order of priority as the Mortgagee shall
determine in its sole and absolute discretion including, without limitation, as
follows:
(a) first, to the payment of the reasonable costs and expenses
of such sale (including, without limitation, the cost of evidence of
title and the costs and expenses, if any, of taking possession of,
retaining custody over, repairing, managing, operating, maintaining and
preserving the Collateral or any part thereof prior to such sale), all
reasonable costs and expenses incurred by the Mortgagee or any other
Person in obtaining or collecting any insurance proceeds, condemnation
awards or other amounts received by the Mortgagee, all reasonable costs
and expenses of any receiver of the Collateral or any part thereof, and
any Impositions or other charges or expenses prior to the security
interest or lien of this Mortgage, which the Mortgagee may consider it
necessary or desirable to pay;
(b) second, to the payment of any Secured Obligation (other
than those set forth in Section 3.11(c) below);
(c) third, to the payment of all amounts of principal of and
interest (including Post-Petition Interest to the extent such interest
is a Secured Obligation) at the time due and payable under the Credit
Agreement pertaining to the Fixed Assets Loans at the time outstanding
(whether due by reason of maturity or by reason of any prepayment
requirement or by declaration or acceleration or otherwise), including
interest at the rate provided for in the Credit Agreement on any
overdue principal and (to the extent permitted under applicable law) on
any overdue interest; and, in case such moneys shall be insufficient to
pay in full such principal and interest, then, first, to the payment of
all amounts of interest (including Post-Petition Interest to the extent
such interest is a Secured Obligation) at the time due and payable and,
second, to the payment of all amounts of principal at the time due and
payable under the Fixed Assets Loans; and
(d) fourth, the balance, if any, held by the Mortgagee after
payment in full of all amounts referred to in subdivisions Sections
3.11(a), (b) and (c) above, shall, unless a court of competent
jurisdiction may otherwise direct by final order not subject to appeal,
be paid to or upon the direction of the Mortgagor.
SECTION III.12. Appointment of Receiver. If an Event of Default shall
have occurred and be continuing, the Mortgagee shall, as a matter of right,
without notice, and without regard to the adequacy of any security for the
indebtedness secured hereby or the solvency of the Mortgagor, be entitled to the
appointment of a receiver for all or any part of the Collateral, whether such
receivership be incidental to a proposed sale of the Collateral or otherwise,
and the Mortgagor hereby consents to the appointment of such a receiver and will
not oppose any such appointment.
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SECTION III.13. Possession, Management and Income. If an Event of
Default shall have occurred and be continuing, in addition to, and not in
limitation of, the rights and remedies provided in Section 1.14, the Mortgagee,
upon five (5) days written notice to the Mortgagor, may enter upon and take
possession of the Collateral or any part thereof by force, summary proceeding,
ejectment or otherwise and may remove the Mortgagor and all other Persons and
any and all property therefrom and may hold, operate, maintain, repair, preserve
and manage the same and receive all earnings, income, Rents, issues and Proceeds
accruing with respect thereto or any part thereof. The Mortgagee shall be under
no liability for or by reason of any such taking of possession, entry, removal
or holding, operation or management, except that any amounts so received by the
Mortgagee shall be applied to pay all costs and expenses of so entering upon,
taking possession of, holding, operating, maintaining, repairing, preserving and
managing the Collateral or any part thereof, and any Impositions or other
charges prior to the lien and security interest of this Mortgage which the
Mortgagee may consider it necessary or desirable to pay, and any balance of such
amounts shall be applied as provided in Section 3.11.
SECTION III.14. Right of Mortgagee to Perform Mortgagor's Covenants,
etc. If the Mortgagor shall fail to make any payment or perform any act required
to be made or performed hereunder or under the Credit Agreement pertaining to
the Fixed Assets Loans or any other Loan Document pertaining to the Fixed Assets
Loans, the Mortgagee, without notice to or demand upon the Mortgagor and without
waiving or releasing any obligation or Event of Default, may (but shall be under
no obligation to) at any time thereafter make such payment or perform such act
for the account and at the expense of the Mortgagor, and may enter upon the
Collateral for such purpose and take all such action thereon as, in the
Mortgagee's opinion, may be necessary or appropriate therefor. No such entry and
no such action shall be deemed an eviction of any lessee of the Property or any
part thereof. All sums so paid by the Mortgagee and all costs and expenses
(including, without limitation, attorneys' fees and expenses) so incurred,
together with interest thereon at the rate provided for in Section 3.2.2 of the
Credit Agreement from the date of payment or incurring, shall constitute
additional indebtedness under the Credit Agreement secured by this Mortgage and
shall be paid by the Mortgagor to the Mortgagee on demand.
SECTION III.15. Subrogation. To the extent that the Mortgagee, on or
after the date hereof, pays any sum due under any provision of any Legal
Requirement or any instrument creating any lien prior or superior to the lien of
this Mortgage, or the Mortgagor or any other Person pays any such sum with the
proceeds of the Fixed Assets Loans, the Mortgagee shall have and be entitled to
a lien on the Collateral equal in priority to the lien discharged, and the
Mortgagee shall be subrogated to, and receive and enjoy all rights and liens
possessed, held or enjoyed by, the holder of such lien, which shall remain in
existence and benefit the Mortgagee in securing the Secured Obligations.
SECTION III.16. Remedies, etc., Cumulative. Each right, power and
remedy of the Mortgagee provided for in this Mortgage, the Credit Agreement
pertaining to the Fixed Assets Loans or any other Loan Document pertaining to
the Fixed Assets Loans, or now or hereafter existing at law or in equity or by
statute or otherwise shall be cumulative and concurrent and shall be in addition
to every other right, power or remedy provided for in this Mortgage, the Credit
Agreement or any other Loan Document pertaining to the Fixed Assets Loans, or
now or hereafter existing at law or in equity or by statute or otherwise, and
the exercise or beginning of the exercise by the Mortgagee of any one or more of
the rights, powers or remedies provided for in this Mortgage, the Credit
Agreement, or any other Loan Document pertaining to the Fixed Assets Loans, or
now or hereafter existing at law or in equity or by statute or otherwise shall
not preclude the simultaneous or later exercise by the Mortgagee of any or all
such other rights, powers or remedies.
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SECTION III.17. Provisions Subject to Applicable Law. All rights,
powers and remedies provided in this Mortgage may be exercised only to the
extent that the exercise thereof does not violate any applicable provisions of
law and are intended to be limited to the extent necessary so that they will not
render this Mortgage invalid, unenforceable or not entitled to be recorded,
registered or filed under the provisions of any applicable law. If any term of
this Mortgage or any application thereof shall be invalid or unenforceable, the
remainder of this Mortgage and any other application of such term shall not be
affected thereby.
SECTION III.18. No Waiver, etc. No failure by the Mortgagee to insist
upon the strict performance of any term hereof or of the Credit Agreement, or of
any other Loan Document, or to exercise any right, power or remedy consequent
upon a breach hereof or thereof, shall constitute a waiver of any such term or
of any such breach. No waiver of any breach shall affect or alter this Mortgage,
which shall continue in full force and effect with respect to any other then
existing or subsequent breach. By accepting payment or performance of any amount
or other Secured Obligations secured hereby before or after its due date, the
Mortgagee shall not be deemed to have waived its right either to require prompt
payment or performance when due of all other amounts and Secured Obligations
payable hereunder or to declare a default for failure to effect such prompt
payment.
SECTION III.19. Compromise of Actions, etc. Any action, suit or
proceeding brought by the Mortgagee pursuant to any of the terms of this
Mortgage, the Credit Agreement pertaining to the Fixed Assets Loans, any other
Loan Document pertaining to the Fixed Assets Loans, or otherwise, and any claim
made by the Mortgagee hereunder or thereunder, may be compromised, withdrawn or
otherwise dealt with by the Mortgagee without any notice to or approval of the
Mortgagor.
ARTICLE IV
DEFINITIONS
SECTION IV.1. Terms Defined in this Mortgage. When used herein the
following terms have the following meanings:
"Borrowers" shall have the meaning set forth in the second recital.
"Collateral" shall have the meaning set forth in the granting clause.
"Contracts" shall have the meaning set forth in clause (h) of the
granting clause.
"Credit Agreement" shall have the meaning set forth in the second
recital.
"Credit Extensions" shall have the meaning set forth in the the second
recital.
"Default" means any Event of Default or any condition or event which,
after notice or lapse of time, or both, would constitute an Event of Default.
"Goods" shall have the meaning set forth in clause (c) of the granting
clause.
"herein", "hereof", "hereto", and "hereunder" and similar terms refer
to this Mortgage and not to any particular Section, paragraph or provision of
this Mortgage.
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"Impositions" shall have the meaning set forth in Section 1.5.
"Improvements" shall have the meaning set forth in clause (b) of the
granting clause.
"Indemnified Parties" shall have the meaning set forth in Section 1.16.
"Insurance Requirements" shall have the meaning set forth in paragraph
(a) of Section 1.6.
"Intangibles" shall have the meaning set forth in clause (d) of the
granting clause.
"Land" shall have the meaning set forth in the first recital.
"Leases" shall have the meaning set forth in clause (e) of the granting
clause.
"Legal Requirements" shall have the meaning set forth in paragraph (b)
of Section 1.6.
"Mortgage" shall have the meaning set forth in the preamble.
"Mortgagee" shall have the meaning set forth in the preamble.
"Mortgagor" shall have the meaning set forth in the preamble.
"Permits" shall have the meaning set forth in clause (g) of the
granting clause.
"Permitted Encumbrances" shall have the meaning set forth in Section
1.2.
"Person" means a corporation, an association, a partnership, an
organization, a business, an individual, a government or political subdivision
thereof or a governmental agency or officer.
"Plans" shall have the meaning set forth in clause (f) of the granting
clause.
"Post-Petition Interest" shall have the meaning set forth in Section
2.3.
"Proceeds" shall have the meaning set forth in clause (k) of the
granting clause.
"Property" shall have the meaning set forth in clause (b) of the
granting clause.
"Real Estate" shall have the meaning set forth in clause (a) of the
granting clause.
"Rents" shall have the meaning set forth in clause (j) of the granting
clause.
"Secured Obligations" means the Fixed Assets Obligations and all
Obligations with respect to the Fixed Assets Loans now or hereafter existing
under the Credit Agreement or any Loan Document pertaining to the Fixed Assets
Loans, and all obligations (monetary or otherwise) arising under or in
connection with the Fixed Assets Notes or the Fixed Assets Loans, whether for
principal, interest, costs, fees, expenses or otherwise and all other Fixed
Assets Obligations.
"State" means the State of Florida.
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"Total Destruction" means any damage to or destruction of the
Improvements or any part thereof which, in the reasonable estimation of the
Mortgagee shall require the expenditure of an amount in excess of Ten Million
Dollars ($10,000,000) to restore the Improvements to substantially the same
condition of the Improvements immediately prior to such damage or destruction.
"Total Taking" means a Taking, whether permanent or for temporary use,
which, in the reasonable judgment of the Mortgagee, shall substantially
interfere with and adversely affect the normal operation of the Property by the
Mortgagor to such an extent as would reasonably be anticipated to cause a
Material Adverse Effect.
SECTION IV.2. Use of Defined Terms. Terms for which meanings are
provided in this Mortgage shall, unless otherwise defined or the context
otherwise requires, have such meanings when used in any certificate and any
opinion, notice or other communication delivered from time to time in connection
with this Mortgage or pursuant hereto.
SECTION IV.3. Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this Mortgage, including
its preamble and recitals, have the meanings provided in the Credit Agreement.
ARTICLE V
MISCELLANEOUS
SECTION V.1. Further Assurances; Financing Statements.
SECTION V.1.1. Further Assurances. The Mortgagor, at its expense, will
execute, acknowledge and deliver all such instruments and take all such other
action as the Mortgagee from time to time may reasonably request:
(a) to better subject to the lien and security interest of
this Mortgage all or any portion of the Collateral,
(b) to perfect, publish notice or protect the validity of the
lien and security interest of this Mortgage,
(c) to preserve and defend the title to the Collateral and the
rights of the Mortgagee therein against the claims of all Persons as
long as this Mortgage shall remain undischarged,
(d) to better subject to the lien and security interest of
this Mortgage or to maintain or preserve the lien and security interest
of this Mortgage with respect to any replacement or substitution for
any Collateral or any other after-acquired property except as provided
in the Credit Agreement, or
(e) in order to further effectuate the purposes of this
Mortgage and to carry out the terms hereof and to better assure and
confirm to the Mortgagee its rights, powers and remedies hereunder.
SECTION V.1.2. Financing Statements. Notwithstanding any other
provision of this Mortgage, the Mortgagor hereby agrees that, without notice to
or the consent of the Mortgagor, the
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Mortgagee may file with the appropriate public officials such financing
statements, continuation statements, amendments and similar documents as are or
may become necessary to perfect, preserve or protect the security interest
granted by this Mortgage.
SECTION V.2. Additional Security. Without notice to or consent of the
Mortgagor, and without impairment of the security interest and lien and rights
created by this Mortgage, the Mortgagee and the Lenders may accept from the
Mortgagor or any other Person additional security for the Secured Obligations.
Neither the giving of this Mortgage nor the acceptance of any such additional
security shall prevent the Mortgagee from resorting, first, to such additional
security, or, first, to the security created by this Mortgage, or concurrently
to both, in any case without affecting the Mortgagee's lien and rights under
this Mortgage.
SECTION V.3. Defeasance; Partial Release, etc.
SECTION V.3.1. Defeasance. If the Fixed Assets Loans and all other
amounts owing pursuant to the Credit Agreement pertaining to the Fixed Assets
Loans and the other Loan Documents pertaining to the Fixed Assets Loans shall be
repaid in full in accordance with the terms thereof, and if the Mortgagor shall
pay, in full, the principal of and premium, if any, and interest on the Secured
Obligations in accordance with the terms thereof and hereof and all other sums
payable hereunder by the Mortgagor and shall comply with all the terms,
conditions and requirements hereof and of the Secured Obligations, or otherwise
as may be provided in the Credit Agreement, then on such date, the Mortgagee
shall, upon the request of the Mortgagor and at the Mortgagor's sole cost and
expense, execute and deliver such instruments, in form and substance reasonably
satisfactory to the Mortgagee, as may be necessary to effectively reconvey,
release and discharge this Mortgage.
SECTION V.3.2. Partial Release, etc. The Mortgagee may, at any time and
from time to time, without liability therefor, and without prior notice to the
Mortgagor, release or reconvey any part of the Collateral, consent to the making
of any map or plat of the Property, join in granting any easement thereon or
join in any extension agreement or agreement subordinating the lien of this
Mortgage.
SECTION V.4. Notices, etc. All notices and other communications
provided to any of the parties hereto shall be in writing and addressed,
delivered or transmitted to such party as set forth in the Credit Agreement.
SECTION V.5. Waivers, Amendments, etc. The provisions of this Mortgage
may be amended, discharged or terminated and the observance or performance of
any provision of this Mortgage may be waived, either generally or in a
particular instance and either retroactively or prospectively, only by an
instrument in writing executed by the Mortgagor and the Mortgagee.
SECTION V.6. Cross-References. References in this Mortgage and in each
instrument executed pursuant hereto to any Section or Article are, unless
otherwise specified, to such Section or Article of this Mortgage or such
instrument, as the case may be, and references in any Section, Article or
definition to any clause are, unless otherwise specified, to such clause of such
Section, Article or definition.
SECTION V.7. Headings. The various headings of this Mortgage and of
each instrument executed pursuant hereto are inserted for convenience only and
shall not affect the meaning or interpretation of this Mortgage or such
instrument or any provisions hereof or thereof.
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SECTION V.8. Currency. Unless otherwise expressly stated, all
references to any currency or money, or any dollar amount, or amounts
denominated in "Dollars" herein will be deemed to refer to the lawful currency
of the United States.
SECTION V.9. Governing Law. THIS MORTGAGE SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE.
SECTION V.10. Successors and Assigns, etc. This Mortgage shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
SECTION V.11. Waiver of Jury Trial; Submission to Jurisdiction.
(a) EACH OF THE MORTGAGOR AND THE MORTGAGEE HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS MORTGAGE, THE CREDIT AGREEMENT, ANY
LOAN DOCUMENT PERTAINING TO THE FIXED ASSETS LOANS OR ANY OTHER RELATED
INSTRUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN), OR ACTIONS OF THE MORTGAGOR OR THE
MORTGAGEE. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE MORTGAGEE
AND THE FIXED ASSETS LENDERS TO ENTER INTO THE TRANSACTIONS PROVIDED
FOR IN THE CREDIT AGREEMENT AND TO MAKE THE FIXED ASSETS LOANS.
(b) FOR THE PURPOSE OF ANY ACTION OR PROCEEDING INVOLVING THIS
MORTGAGE, THE CREDIT AGREEMENT AS PERTAINS TO THE FIXED ASSETS LOANS OR
ANY OTHER LOAN DOCUMENT AS PERTAINS TO THE FIXED ASSETS LOANS, THE
MORTGAGOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ALL FEDERAL AND STATE COURTS LOCATED IN THE STATE AND
CONSENTS THAT IT MAY BE SERVED WITH ANY PROCESS OR PAPER BY REGISTERED
MAIL OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE IN ACCORDANCE
WITH APPLICABLE LAW, PROVIDED A REASONABLE TIME FOR APPEARANCE IS
ALLOWED. THE MORTGAGOR AND MORTGAGEE EACH EXPRESSLY WAIVES, TO THE
EXTENT IT MAY LAWFULLY DO SO, ANY OBJECTION, CLAIM OR DEFENSE WHICH IT
MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY ACTION, SUIT OR
PROCEEDING ARISING OUT OF THIS MORTGAGE, THE CREDIT AGREEMENT OR ANY
OTHER LOAN DOCUMENT PERTAINING TO THE FIXED LOANS IN ANY SUCH COURT,
IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM AND
FURTHER IRREVOCABLY WAIVES THE RIGHT TO OBJECT, WITH RESPECT TO ANY
SUCH CLAIM, SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT, THAT
SUCH COURT DOES NOT HAVE JURISDICTION OVER THE PERSON OF THE MORTGAGOR.
NOTHING CONTAINED HEREIN WILL BE DEEMED TO PRECLUDE THE MORTGAGEE FROM
BRINGING AN ACTION AGAINST THE MORTGAGOR IN ANY OTHER JURISDICTION.
SECTION V.12. Severability; Conflicts. Any provision of this Mortgage,
the Credit Agreement or any other Loan Document pertaining to the Fixed Assets
Loans which is prohibited or unenforceable in any jurisdiction shall as to such
provision and such jurisdiction, be ineffective to the
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extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Mortgage, the Credit Agreement or such Loan
Document pertaining to the Fixed Assets Loans or affecting the validity or
enforceability of such provision in any other jurisdiction. In the event of any
conflict between the terms of this Mortgage and the terms of the Credit
Agreement, the terms of the Credit Agreement shall control.
SECTION V.13. Loan Document. This Mortgage is a Loan Document executed
pursuant to the Credit Agreement and, unless otherwise expressly indicated
herein, shall be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION V.14. Usury Savings Clause. It is the intention of the
Mortgagor and the Mortgagee to conform strictly to the usury laws governing the
Loan Documents pertaining to the Fixed Assets Loans, and any interest payable
under the Loan Documents pertaining to the Fixed Assets Loans shall be subject
to reduction to the amount not in excess of the maximum non-usurious amount
allowed under such laws, as construed by the courts having jurisdiction over
such matters. In the event the maturity of the Secured Obligations is
accelerated by reason of any provision of the Loan Documents pertaining to the
Fixed Assets Loans, or by reason of an election by the Mortgagee resulting from
an Event of Default, then earned interest may never include more than the
maximum amount permitted by law, computed from the dates of each advance of loan
proceeds under the Credit Agreement until payment, and any interest in excess of
the maximum amount permitted by law shall be canceled automatically or, if
theretofore paid, at the option of the Mortgagee, shall be rebated to the
Mortgagor, or shall be credited on the principal amount of the Secured
Obligations or, if all principal has been repaid, then the excess shall be
rebated to the Mortgagor. If any interest is canceled, credited against
principal or rebated to the Mortgagor in accordance with the foregoing sentence
and, if thereafter the interest payable hereunder is less than the maximum
amount permitted by applicable law, the rate hereunder shall automatically be
increased to the maximum extent possible to permit repayment to the Mortgagee
and the Lenders as soon as possible of any interest in excess of the maximum
amount permitted by law which was earlier canceled, credited against principal
or rebated to the Mortgagor pursuant to the provisions of the foregoing
sentence.
SECTION 5.15. Future Advances. This Mortgage is a "Future Advance
Mortgage" under the laws of the State. Any and all future advances under this
Mortgage and the Loan Documents pertaining to the Fixed Assets Loans shall have
the same priority as if the future advance was made on the date that this
Mortgage was recorded. This Mortgage shall secure the Secured Obligations,
whenever incurred, such Secured Obligations to be due at the times provided in
the Loan Documents pertaining to the Fixed Assets Loans. Notice is hereby given
that the Secured Obligations may increase as a result of any defaults hereunder
by Mortgagor due to, for example, and without limitation, unpaid interest or
late charges, unpaid taxes or insurance premiums which the Mortgagee elects to
advance, defaults under leases that the Mortgagee elects to cure, attorney fees
or costs incurred in enforcing the Loan Documents pertaining to the Fixed Assets
Loans or other expenses incurred by the Mortgagee in protecting the Collateral,
the security of this Mortgage or the Mortgagee's rights and interests.
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IN WITNESS WHEREOF, the undersigned, by its duly elected officers and
pursuant to proper authority of its board of directors has duly executed,
sealed, acknowledged and delivered this instrument as of the day and year first
above written.
STERLING FIBERS, INC., a Delaware corporation
By:
------------------------------------------
Name:
----------------------------------
Title:
---------------------------------
DRAFTED BY:
Xxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
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[CORPORATION NOTARY PAGE]
MULTI-STATE CORPORATE ACKNOWLEDGMENT
State of New York
County of New York
On this ________________ day of July, 1999, before me, the undersigned officer,
personally appeared:
(a) ________________________________, with a residence at
____________________________.
(b) __________________________________, with a residence at
____________________________.
personally known and acknowledged himself/herself/themselves to me (or proved to
me on the basis of satisfactory evidence) to be the
(a) ________ President, and
(b) ________ Secretary
respectively of _______________________, (hereinafter, the "Corporation")
and that as such officer(s), being duly authorized to do so pursuant to its
bylaws or a resolution of its board of directors, executed, subscribed and
acknowledged the foregoing instrument for the purposes therein contained, by
signing the name of the Corporation by himself/herself/themselves in their
authorized capacities as such officer(s) as his/her/their free and voluntary act
and deed and the free and voluntary act and deed of said Corporation.
In Witness Whereof, I hereunto set my hand and official seal.
------------------------------------
Notary Public
Notarial Seal My Commission Expires:
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SCHEDULE 1
Legal Description of the Land
[ ]
34
SCHEDULE 2
Permitted Encumbrances
[ ]
