OPEN-END MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF RENTS AND LEASES, FIXTURE FILING,
AND FINANCING STATEMENT
Dated as of October 5, 1998
CENTRAL VERMONT PUBLIC SERVICE CORPORATION,
as Mortgagor,
In Favor Of
TORONTO DOMINION (TEXAS), INC.,
as Collateral Agent for the Secured Parties
as defined in the Credit Agreement,
as Mortgagee,
Prepared by and when
Recorded Return to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx, Esq.
TABLE OF CONTENTS
Section Page
ARTICLE I.
COVENANTS OF MORTGAGOR...............................6
1.1. Payment and Performance of Secured Obligations..6
1.2. Incorporation of Documents......................6
1.3. General Representations, Covenants and Warranties..7
1.4. Additional Covenants, Representations and Warranties
Regarding Environmental Matters.........................8
1.5. Use of Property...................................9
1.6. Taxes, Assessments and Other Charges............10
1.7. Defense of Title and Litigation.................10
1.8. Zoning and Title Matters........................11
1.9. Insurance and Risk of Loss......................11
1.10. Effect of Changes in Laws Regarding Taxation....12
1.11. Changes to Mortgage or Related Documents........12
1.12. Eminent Domain and Casualty.....................12
1.13. Mortgagee's Performance of Defaulted Acts;
Subrogation...........................................13
1.14. Ownership of Property and Mortgagor's Interest..13
1.15. Assignment of Leases and Rents..................14
1.16. Security Agreement and Financing Statements.....15
1.17. After Acquired Property.........................16
1.18. Collateral Protection...........................16
ARTICLE II.
DEFAULTS AND REMEDIES.................................17
2.1. Event of Default................................17
2.2. Mortgagee's Power of Enforcement................17
2.3. Mortgagee's Right To Enter and Take Possession..18
2.4. Appointment of Receiver.........................21
2.5. Waiver of Certain Rights........................21
2.6. Leases..........................................22
2.7. Suits To Protect Property.......................22
2.8. No Waiver.......................................22
2.9. Remedies Cumulative.............................23
2.10. Discontinuance of Proceedings...................23
2.11. Additional Security.............................23
ARTICLE III.MISCELLANEOUS.........................................24
3.1. Use of Certain Terms............................24
3.2. Headings........................................24
3.3. Notices.........................................24
3.4. Binding Effect..................................25
3.5. Provisions Subject to Applicable Laws; Invalid
Provisions To Affect No Others........................25
3.6. Changes.........................................25
3.7. No Benefit to Third Parties.....................25
3.8. Exercise of Discretion..........................25
3.9. Representatives of Mortgagee....................26
3.10. Receipt of Copy Acknowledged....................26
3.11. Waiver of Jury Trial; Submission to Jurisdiction;
Waiver of Service and Venue...........................26
3.12. Estoppel Certificates...........................26
3.13. Mortgagee's Lien................................26
3.14. Required Notices................................26
3.15. Governing Law...................................26
3.16. Site Visits, Observation and Testing............27
3.17. Credit Bids.....................................27
3.18. No Waiver or Cure...............................27
3.19. Partial Release Conditions......................27
ARTICLE IV.ADDITIONAL COLLATERAL.................................28
ARTICLE V.CERTAIN MATTERS RELATING TO THE PROPERTY
LOCATED IN THE STATE OF CONNECTICUT...................30
5.1. Open-End Mortgage...............................30
5.2. Open-End Mortgage Securing Guaranty.............30
5.3. Prejudgment Remedy Waiver.......................30
5.4. UCC.............................................31
ARTICLE VI.CERTAIN MATTERS RELATING TO THE PROPERTY
LOCATED IN THE STATE OF MAINE.........................31
6.1. Statutory Power of Sale.........................31
6.2. Future Advances.................................31
6.3. Sealed Instrument...............................32
6.4. No Oral Modifications...........................32
6.5. UCC.............................................32
ARTICLE VII.CERTAIN MATTERS RELATING TO THE PROPERTY
LOCATED IN THE STATE OF NEW HAMPSHIRE.................32
7.1. Statutory Power of Sale.........................32
7.2. UCC.............................................32
ARTICLE VIII.CERTAIN MATTERS RELATING TO THE PROPERTY
LOCATED IN THE STATE OF NEW YORK......................33
8.1. Section 254 of the RPL..........................33
8.2. Section 291-f of the RPL........................33
8.3. Trust Fund......................................33
8.4. Commercial Property.............................33
8.5. Transfer Tax....................................33
8.6. Maximum Principal Amount........................33
8.7. Covenants in Addition to RPL....................34
ARTICLE IX.CERTAIN MATTERS RELATING TO THE PROPERTY
LOCATED IN THE STATE OF VERMONT.......................34
9.1. Non-Judicial Power of Sale......................34
9.2. Limitation on Attorneys' Fees in Foreclosure....34
9.3. Future Advances and Subsequent Indebtedness.....34
9.4. UCC.............................................35
LIST OF EXHIBITS
Exhibit A - Description of Property
OPEN-END MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF RENTS, FIXTURE FILING
AND FINANCING STATEMENT
THIS OPEN-END MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT
OF RENTS, FIXTURE FILING AND FINANCING STATEMENT
("Mortgage") dated as of the 5th day of October, 1998, is
made by CENTRAL VERMONT PUBLIC SERVICE CORPORATION, a
Vermont corporation (together with its successors and
assigns, "Mortgagor"), having an office at 00 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000, in favor of TORONTO DOMINION
(TEXAS), INC., a Delaware corporation, having its principal
office address at 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxx 00000, not personally but acting in its capacity as
collateral agent for the Secured Parties as defined in the
Credit Agreement (hereinafter defined) (the "Secured
Parties") (in such capacity, together with its successors,
assigns, agents and nominees, "Mortgagee"). Unless
otherwise expressly defined herein, initially capitalized
terms used herein shall have the meanings ascribed to them
in the Credit Agreement (defined below).
WITNESETH:
WHEREAS, pursuant to the Credit Agreement dated as of
November 5, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), by and
among Mortgagor, the lenders signatory thereto from time to
time (the "Lenders") and Mortgagee, as agent for the
Lenders, Mortgagee and the Lenders agreed to extend a
revolving credit facility to Mortgagor of up to Fifty
Million and 00/100 Dollars ($50,000,000.00) to be evidenced
by certain revolving loan notes of Mortgagor issued from
time to time (the "Revolving Loan Notes") and/or certain
auction notes of Mortgagor issued from time to time (the
"Auction Notes"), upon the terms and conditions set forth in
the Credit Agreement (the Revolving Loan Notes, the Auction
Notes, the Credit Agreement and all other documents,
instruments and agreements entered into in connection
therewith including without limitation, the "Transaction
Documents" as defined in the Credit Agreement, are sometimes
jointly referred to herein as the "Loan Documents");
WHEREAS, pursuant to (i) the Amended and Restated
Reimbursement Agreement, dated as of September 24, 1992,
between Mortgagor and The Toronto-Dominion Bank, Houston
Agency ("TD"), (ii) the Reimbursement Agreement, dated as of
April 29, 1993, between Central Vermont Public Service
Corporation - East Barnet Hydroelectric, Inc. ("East
Barnet") and TD (the "East Barnet Letter of Credit
Agreement"), together with Mortgagor's guaranty thereof
dated as of April 29, 1993 (the "Guaranty"), and (iii) the
Letter of Credit and Reimbursement Agreement, dated as of
November 1, 1994, between Mortgagor and TD (collectively,
as amended, supplemented or otherwise modified from time to
time, the "Existing Letter of Credit Agreements"), TD has
agreed to incur letter of credit obligations on behalf of
Mortgagor and East Barnet, as applicable;
WHEREAS, in order to induce (i) the Lenders to enter
into the Third Amendment to Credit Agreement, dated as of
the date hereof, among Mortgagor, the Lenders, Mortgagee and
Fleet National Bank, as syndication agent, (ii) the Lenders
to continue to make the Loans as provided in the Credit
Agreement and (iii) TD to continue to incur letter of credit
obligations as provided in the Reimbursement Agreements,
Mortgagor has agreed to execute and deliver this Mortgage to
Mortgagee to secure payment and performance by Mortgagor of:
(a) all of the Secured Obligations as defined in the Credit
Agreement including, without limitation, all of Mortgagor's
obligations under this Mortgage, the Revolving Loan Notes
and the Auction Notes; (b) all of the reimbursement
obligations of Mortgagor pursuant to the Existing Letter of
Credit Agreements ("LOC Reimbursement Obligations"); and (c)
the Guaranty (all of such obligations are collectively
referred to herein as the "Secured Obligations");
WHEREAS, the Secured Obligations mature on or before
December 1, 2015; and
WHEREAS, Mortgagor has previously executed and
delivered the Indenture (hereinafter defined) which
constitutes a first priority lien on the Property
(hereinafter defined).
NOW THEREFORE, in consideration of Ten ($10.00)
Dollars, in hand paid, and other good and valuable
consideration, the receipt and legal sufficiency of which
are hereby acknowledged, and to secure all obligations,
liabilities or sums due or to become due under this
Mortgage, the Revolving Loan Notes, the Auction Notes, the
Guaranty, the Existing Letter of Credit Agreements or any
other Loan Document, including, without limitation, the
payment of all principal, prepayment premium (if any) and
interest due under the Revolving Loan Notes, Auction Notes
and LOC Reimbursement Obligations; and any further or
subsequent advances made pursuant to this Mortgage, the
Revolving Loan Notes, the Auction Notes, the Existing Letter
of Credit Agreements or any other Loan Document to protect
or preserve the Property (hereinafter defined) or the lien
or security created hereby; and for the Secured Obligations,
Mortgagor has executed and delivered this Mortgage, and
Mortgagor has irrevocably granted, and by these presents and
by the execution and delivery hereof does hereby irrevocably
grant, bargain, sell, alien, demise, release, convey,
assign, transfer, mortgage, hypothecate, pledge, set over,
warrant and confirm to Mortgagee and to its successors and
assigns forever (to the extent legally permitted), with
power of sale, all right, title and interest of Mortgagor in
and to all of the following property, rights, interests and
estates whether now owned or hereafter acquired.
THE PROPERTY
(A) The real property more particularly described
herein and in Exhibit A attached hereto, incorporated herein
and made a part hereof (the "Land"), and all trees,
shrubbery, crops and other plantings now or hereafter grown
on the Land;
(B) TOGETHER WITH all and singular the plants, rights,
permits, franchises, privileges, easements and property,
real, personal and mixed, all as more particularly described
in that certain Indenture of Mortgage (the "Original
Indenture") dated as of October 1, 1929, but actually
executed on October 24, 1929 (the Original Indenture, with
all indentures supplemental thereto (the "Supplemental
Indentures") as therein provided, being hereinafter
generally referred to as the "Indenture"), recorded in Liber
150 of Mortgages, Page 00, Xxxxxxx Xxxxxx (Xxx Xxxxxxxxx)
Xxxxxxxx of Deeds, Liber 000, Xxxxx 000, Xxxxxxxx Xxxxxx
(Xxx Xxxxxxxxx) Records, Vol. 234, Page 531, in the Office
of the Secretary of State of Connecticut at Volume 51:M of
the Railroad Mortgages, in the Office of the City Clerk of
Rutland, Vermont at Book 51A, in the Office of the Secretary
of State of the States of Vermont, Maine and New York, and
in the offices of the clerks of certain other towns and
cities in such states, and forty (40) duly recorded (where
necessary) Supplemental Indentures thereto and in
modification and confirmation thereof, and thereby or
otherwise thereunder conveyed, pledged, assigned,
transferred and mortgaged, or intended so to be (said
descriptions in the Indenture being hereby made a part
hereof to the same extent as if set forth herein at length),
whether then or now owned or thereafter or hereafter
acquired, except such of said properties or interests
therein as may have been released or sold or disposed of in
whole or in part as permitted by the provisions of the
Indenture as heretofore supplemented and amended;
(C) TOGETHER WITH all right, title and interest, if
any, which Mortgagor may now have or hereafter acquire of
whatever character whether as owner, lessee or otherwise,
whether vested or contingent, in and to (1) the Land and all
buildings, structures and improvements of every nature
whatsoever now or hereafter situated on the Land
(collectively, the "Buildings"), (2) all building materials,
supplies and other property now or hereafter stored at or
delivered to the Land or any other location for installation
in or on the Land or any of the Buildings, and all fixtures,
fittings, machinery, appliances, equipment, apparatus,
furnishings and personal property of every nature whatsoever
now or hereafter located in or on, or attached to, and used
or intended to be used in connection with the Land, any of
the Buildings or any business or other operations now or
hereafter conducted in or on the Land or any of the
Buildings or in connection with any construction or other
work now or hereafter conducted in or on the Land or any of
the Buildings, and all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to or
of any of the foregoing, (all of the property described in
this clause (2), being collectively referred to herein as
the "Equipment"; the Buildings and the Equipment being
collectively referred to herein as the "Improvements"), (3)
any and all oil, gas and other minerals now or hereafter
produced from or allocated to the Land and any and all
products now or hereafter processed or obtained from any
such oil, gas or other minerals, and (4) any and all plans,
specifications, drawings, books, records and similar items
now or hereafter relating to the Land or the Improvements,
the operation thereof, any rights thereto or any interest
therein;
(D) TOGETHER WITH all proceeds, products, extensions,
additions, improvements, betterments, renewals,
substitutions, replacements, accessions, accretions and
relictions of and to all or any part of the Premises (as
herein defined) or any other property encumbered by this
Mortgage;
(E) TOGETHER WITH all right, title and interest of
Mortgagor, of whatever character (whether vested or
contingent and whether now owned or hereafter acquired), in
and to (1) all streets, roads and public places (whether
open or proposed) now or hereafter adjoining or otherwise
providing access to the Land, (2) the land lying in the bed
of such streets, roads and public places, and (3) all other
sidewalks, alleys, ways, passages, vaults, water courses,
strips and gores of land now or hereafter adjoining or used
or intended to be used in connection with all or any part of
the property described in paragraphs (A), (B), (C) and (D)
hereof;
(F) TOGEHTER WITH all easements, rights-of-way and
rights of use or passage (whether public or private),
estates, interests, benefits, powers, rights (including,
without limitation, any and all lateral support, drainage,
slope, riparian, littoral, sewer, water, air, oil, gas,
mineral and subsurface rights), privileges, claims,
franchises, licenses, profits, rents, royalties, tenements,
hereditaments, reversions, remainders and appurtenances of
every nature whatsoever in any way now or hereafter
belonging, relating or appertaining to all or any part of
the property described in paragraphs (A), (B), (C), (D) and
(E) hereof (all rights and interests described in clauses
(A), (B), (C), (D), (E) and (F) being collectively referred
to herein as the "Premises");
(G) TOGETHER WITH (1) any and all judgments,
settlements, claims, awards, insurance proceeds and other
proceeds and compensation, and any interest thereon
(collectively, "Compensation"), now or hereafter made or
payable in connection with (a) any casualty or other damage
to all or any part of the property described in paragraphs
(A), (B), (C), (D), (E) and (F) hereof, (b) any condemnation
proceedings affecting any such property or any rights
thereto or any interest therein, (c) any damage to or taking
of any such property or any rights thereto or any interest
therein arising from or otherwise relating to any exercise
of the power of eminent domain (including, without
limitation, any and all Compensation for change of grade of
streets or any other injury to or decrease in the value of
any such property), or (d) any conveyance in lieu of or
under threat of any such taking, (2) any and all proceeds of
any sale, assignment or other disposition of any such
property or any rights thereto or any interest therein, (3)
any and all proceeds of any other conversion (whether
voluntary or involuntary) of any such property or any rights
thereto or any interest therein into cash or any liquidated
claim, and (4) any and all option rights, contract rights,
permits, licenses, approvals, actions and rights in action
now or hereafter arising from or relating to any such
property (including, without limitation, all rights of
Mortgagor in and to insurance proceeds and any and all
contracts and bonds relating to operation, maintenance,
construction, renovation, restoration, repair, management or
security of any such property);
(H) TOGETHER WITH all leasehold estates, right, title
and interest of Mortgagor in any and all leases, subleases,
management agreements, arrangements, concessions or
agreements relating to the use or occupancy of the Premises
or any portion thereof and all rents of and from all or any
part of the foregoing whether now or hereafter payable or
accruing (including, without limitation, any and all money
and other consideration paid or payable from time to time by
any and all tenants, licensees, occupants or other users of
any such property), and all rights of Mortgagor or any other
person to collect and receive the same; provided, however,
that permission is hereby given to Mortgagor, so long as no
Event of Default (as hereinafter defined) shall have
occurred, to collect and use such rents as, but not before,
they become due and payable, which permission shall
terminate immediately, without the necessity of any action
by Mortgagee, upon the occurrence of any Event of Default;
(I) TOGETHER WITH (1) all right, title and interest of
Mortgagor (whether as seller, purchaser or otherwise) in and
to any and all agreements now or hereafter relating to any
purchase, sale, occupancy or other transfer of all or any
part of the property described in paragraphs (A), (B), (C),
(D), (E), (F), (G) and (H) hereof (whether or not such
purchase, sale, occupancy or other transfer shall be
completed), and (2) all right, title and interest of
Mortgagor (whether as lessor, lessee or otherwise) in and to
any and all leases, subleases, use, occupancy and similar
agreements (including, without limitation, oil, gas and
mining leases) now or hereafter relating to all or any part
of the property described in paragraphs (A), (B), (C), (D),
(E) and (F) hereof (each being referred to in this paragraph
as a "lease"), together with any and all guaranties and
security of, for or otherwise relating to any such lease
(including, without limitation, any and all right, title and
interest of Mortgagor in and to property of any tenant or
other person, whether such right, title and interest shall
have arisen under applicable law or under any such lease or
other arrangement) and together with all rent and other
consideration (whether monetary or otherwise) now or
hereafter payable or accruing under or in connection with
any such lease (including, without limitation, any and all
cancellation or termination payments and any and all damages
payable in connection with any default), subject, however,
to the conditional permission given to Mortgagor to collect
and use the rents, royalties, issues, profits, revenues,
income and other benefits arising under any such lease as
provided above and, so long as no Event of Default has
occurred, to possess, control, manage, operate and otherwise
deal with the property described in paragraphs (A), (B),
(C), (D), (E), (F), (G) and (H) hereof;
(J) TOGETHER WITH any and all right, title and
interest of Mortgagor in all reciprocal easement agreements,
operating agreements and any other agreements affecting the
Land and Improvements; and
(K) TOGETHER WITH any and all further or greater
estate, right, title, interest, claim and demand of
Mortgagor, of whatever character (whether vested or
contingent and whether now owned or hereafter acquired), in
and to any of the property described in the foregoing
paragraphs or any rights or interests appurtenant thereto.
SUBJECT, HOWEVER, as to all of the foregoing, to the
specific rights, privileges, liens, encumbrances,
restrictions, conditions, limitations, covenants, interests,
reservations, exceptions and otherwise as provided in the
Indenture, and in the descriptions in the schedules thereto
and in the deeds or grants in said schedules referred to.
BUT SPECIFICALLY RESERVING AND EXCEPTING (as the same
were reserved and excepted from the lien of the Indenture)
from this Mortgage and the grant, conveyance, mortgage,
transfer and assignment herein (a) all lamps and supplies,
machinery, appliances, goods, wares, and other removable
property now or at any time handled by Mortgagor for sale as
merchandise or not in use or connected as fixtures with its
own plants, and consumable supplies, (b) all cash and all
bonds, stocks and other securities now owned or which may
hereafter be owned by Mortgagor and which are not deposited
under the Indenture, (c) the last day of each of the
demised terms created by any lease of property now leased to
Mortgagor, and the last day of any demised term under each
and every lease hereafter acquired by Mortgagor and under
each and every renewal of any lease, the last day of each
and every such demised term being hereby expressly reserved
to and by Mortgagor, (d) all telephone properties, whether
now owned or hereafter acquired by Mortgagor, and (e) any
and all other property, real, personal or mixed, in which a
lien is not purported to be granted under the Indenture
(other than due to a release by the Indenture Trustee of
such property where pursuant to the terms contemplated by
Section 3.20 hereof, Mortgagee would not be required to
release such property).
All of the property described in the paragraphs (A),
(B), (C), (D), (E), (F), (G), (H), (I), (J) and (K) above,
and each item of property therein described is collectively
referred to in this Mortgage as the "Property").
TO HAVE AND TO HOLD the Property, rights and privileges
and appurtenances hereby conveyed or assigned, or intended
so to be, unto Mortgagee, its successors and assigns, to its
and their own proper use and benefit forever, upon and
subject to the terms and conditions set forth in this
Mortgage and subject to the Indenture;
PROVIDED, HOWEVER, that if all of the Secured
Obligations shall be fully, finally, and indefeasibly paid
at the times, in the amounts and in the manner specified in
the Loan Documents to which Mortgagor is a party, all
without any deduction or credit for any Impositions (as
hereinafter defined) or other charges or expenses paid or
payable by or on behalf of Mortgagor and fully kept,
performed, observed and complied with in accordance with the
Loan Documents to which Mortgagor is a party (collectively,
the "Release Conditions") and there is no further obligation
to extend credit to Mortgagor under the Loan Documents, then
this Mortgage and the rights and interests hereby granted
and assigned to Mortgagee shall be null and void and of no
further force and effect and shall be released of record
upon the written request and at the expense of Mortgagor,
but otherwise shall remain in full force and effect;
provided, however, that the release of this Mortgage shall
not affect Mortgagor's obligation to perform those Secured
Obligations which are expressly stated to survive repayment
of the Secured Obligations pursuant to the terms of the Loan
Documents to which Mortgagor is a party.
AND PROVIDED FURTHER, notwithstanding anything to the
contrary herein, that the maximum principal amount which at
any time may be secured hereby is limited to and shall not
in any event exceed the sum of $66,300,000.
Mortgagor warrants, represents, covenants and agrees to
and with Mortgagee as follows:
ARTICLE I
COVENANTS OF MORTGAGOR
Section 1.1. Payment and Performance of Secured
Obligations. Mortgagor shall pay, keep, perform, observe
and comply with, or shall cause to be paid, kept, performed,
observed and complied with all of the Secured Obligations.
Mortgagor acknowledges and agrees that all security of any
kind pursuant to the Loan Documents to which Mortgagor is a
party, is security for the Secured Obligations without
allocation of any part or portion thereof to any portion of
the Secured Obligations other than the whole thereof.
Section 1.2. Incorporation of Documents. Mortgagor
acknowledges that the proceeds of the Revolving Loan Notes
and the Auction Notes are to be disbursed in accordance with
the provisions in the Credit Agreement and the letters of
credit are to be issued in accordance with the provisions of
the Existing Letter of Credit Agreements. Subject to the
final proviso preceding Article I hereof, all advances and
indebtedness arising and accruing under this Mortgage,
whether or not the resulting indebtedness secured hereby may
exceed the aggregate face amount of any document evidencing
such indebtedness, shall be secured hereby to the same
extent as though said Credit Agreement and Existing Letter
of Credit Agreements were fully incorporated in this
Mortgage. Subject to the final proviso preceding Article I
hereof, in the event of any conflict or inconsistency
between the terms of this Mortgage, the Credit Agreement and
the Existing Letter of Credit Agreements, the terms and
provisions of the Credit Agreement and the Existing Letter
of Credit Agreements, as the case may be, shall in each
instance govern and control. Notwithstanding the foregoing,
if Mortgagor shall have a greater obligation under this
Mortgage than under the Credit Agreement, such greater
obligation shall not be considered a conflict or
inconsistency between them, Mortgagor in each instance being
bound by such greater obligation. Each and every term and
provision of the Loan Documents to which Mortgagor is a
party, including the rights, remedies, obligations,
covenants, conditions, agreements, indemnities,
representations and warranties of Mortgagor contained
therein, shall be considered as if a part of this Mortgage,
and payment, fulfillment and performance thereof is secured
hereby, and, in accordance with the Loan Documents to which
Mortgagor is a party. Any Event of Default under the Credit
Agreement or the Existing Letter of Credit Agreements shall
constitute an Event of Default under this Mortgage entitling
Mortgagee to all the remedies provided in this Mortgage,
under the other Loan Documents to which Mortgagor is a
party, and by law.
Section 1.3. General Representations, Covenants and
Warranties.
Mortgagor warrants, represents and covenants that:
(a) Mortgagor fully warrants and will forever defend
the title to the Property and the validity as a lien, second
in priority only to the Indenture, and security interest,
enforceability and priority of the lien and security
interest created hereby against the claims of all persons
whomsoever claiming or who may claim the same or any part
thereof, subject only to those matters described in the
Indenture ("Permitted Exceptions") and Permitted Liens (as
defined in the Credit Agreement);
(b) Mortgagor is seized of an indefeasible estate in
fee simple in and to the land, buildings and all other parts
of the Property constituting real property;
(c) Except for Permitted Liens and Permitted
Exceptions, Mortgagor has good and marketable title to the
equipment and all other parts of the Property constituting
personal property;
(d) Mortgagor has good right, full power and lawful
authority, without the joinder or consent of any person
(other than the approval or consent of the Vermont Public
Service Board and the approval of or waiver by the
Connecticut Department of Public Utility Control), to
mortgage, pledge, assign and grant a security in the
Property pursuant to and as provided in this Mortgage;
(e) Mortgagor may at all times peaceably and quietly
enter upon, hold, occupy and enjoy the Property in
accordance with this Mortgage;
(f) The Property is free and clear of any and all
liens, security interests, charges, encumbrances and claims
of other persons, of any kind whatsoever, other than
Permitted Exceptions and Permitted Liens (including, without
limitation, the Indenture);
(g) Except for the recording of this Mortgage and the
filing of financing statements or certificates of mortgage,
as the case may be, no registrations, recordings or filings
are required to create a valid lien on and perfected
security interest in the Property second in priority only to
the Indenture;
(h) Mortgagor will maintain and preserve the Lien of
this Mortgage until all of the Release Conditions (subject
to certain partial releases approved by Mortgagee pursuant
to Section 3.20 hereof) are satisfied;
(i) Mortgagor shall not make or enter into any lease
of all or any part of the Property for rent or other
consideration valued (as reasonably determined by Mortgagor)
below the fair market rental value of the Property at the
time such lease is executed; and
(j) All costs incurred and which have become due and
payable prior to the date hereof in connection with any
construction of, in or on any improvements or in connection
with the purchase of any improvements have been paid or will
be paid promptly when due or will be paid promptly following
resolution of any good faith dispute or protest relating
thereto.
Section 1.4. Additional Covenants, Representations
and Warranties Regarding Environmental Matters. Mortgagor
represents, covenants and warrants to Mortgagee as follows:
(a) Other than as described in the Mortgagor's Annual
Report on Form 10-K for the fiscal year ended December 31,
1997 and Form 10-Qs for the fiscal quarters ended March 31,
1998 and June 30, 1998 (collectively, the "SEC Reports"),
neither Mortgagor nor the Property are in violation of or
subject to any existing, pending or threatened investigation
or inquiry by any governmental authority, federal or state,
or to any remedial obligations under any federal or state
laws pertaining to health or the environment (hereinafter
sometimes collectively called "Applicable Environmental
Laws"), including without limitation the Comprehensive
Environmental Response, Compensation and Liability Act of
1980 (as amended, "CERCLA"), the Resource Conservation and
Recovery Act of 1976 ("RCRA"), and any and all applicable
state environmental laws (together the "State Environmental
Laws"), and this representation and warranty would continue
to be true and correct following disclosure to the
applicable governmental authorities of all relevant facts,
conditions and circumstances, if any, pertaining to the
Premises.
(b) Except as described in the SEC Reports, Mortgagor
will not cause or permit the Property to be in violation of,
or do anything or permit anything to be done which will
subject the Property to any remedial obligations under, any
Applicable Environmental Laws, and will promptly notify
Mortgagee, in writing, of any existing, pending or, to the
best of Mortgagor's knowledge, threatened investigation or
inquiry by any governmental authority in connection with any
Applicable Environmental Laws, in each case which could be
reasonably be expected to have a material adverse effect on
the business, operations, assets, liabilities, financial
condition, results of operations or business prospects of
Mortgagor ("Material Adverse Effect").
(c) Mortgagor has not obtained and is not required to
obtain any permits, licenses or similar authorizations to
construct, occupy, operate or use any buildings,
improvements, fixtures and equipment forming a part of the
Property by reason of any Applicable Environmental Laws
except as described in the SEC Reports or where the failure
to do so could reasonably be expected to have a Material
Adverse Effect.
(d) Except as described in the SEC Reports, Mortgagor
has taken all steps necessary to determine and has
determined that no hazardous substances or solid wastes have
been disposed of or otherwise released or discharged on or
to the Property; and that the use which Mortgagor makes and
intends to make of the Property will not result in the
disposal or other release or discharge of any hazardous
substance or solid waste on or to the Property, in each case
which could reasonably be expected to have a Material
Adverse Effect (the terms "hazardous substance,"
"discharge," "solid waste" "disposal" and "release" as used
herein shall have the meanings specified in CERCLA, RCRA and
the State Environmental Laws, as applicable; provided, in
the event either CERCLA, RCRA or the State Environmental
Laws is amended so as to broaden the meaning of any term
defined thereby, such broader meaning shall apply subsequent
to the effective date of such amendment and provided
further, to the extent that the laws of the States of
Connecticut, Maine, New Hampshire, New York or Vermont, as
applicable, establish a meaning, either by express
definition or by construction or implication, for "hazardous
substance," "release," "discharge," "solid waste," or
"disposal" which is broader than that specified in either
CERCLA, RCRA or the State Environmental Laws such broader
meaning shall apply.
(e) Mortgagor grants to Mortgagee and its agents and
employees access to the Property and the license to remove
any hazardous waste and/or substances containing asbestos,
in each case where the failure to do so could reasonably be
expected to have a Material Adverse Effect, and agrees to
indemnify Mortgagee and Lenders from all costs and expenses
and all claims (including consequential damage) asserted or
proven against Mortgagee by any party in connection
therewith. In the event Mortgagor fails to do so, after
notice to Mortgagor, Mortgagee may either declare a default
under this Mortgage and foreclose the same or cause the
Property to be freed from the asbestos, substances
containing asbestos or hazardous wastes with the cost of the
removal to be added to the indebtedness evidenced by the
Revolving Loan Notes and/or the Auction Notes, at
Mortgagee's election, and secured by this Mortgage.
(f) Upon Mortgagee's reasonable request, at any time
and from time to time during the existence of this Mortgage
(but only after the occurrence of an Event of Default),
Mortgagor shall provide, at Mortgagor's sole expense, an
inspection or audit of the Property from an engineering or
consulting firm approved by Mortgagee, indicating the
presence or absence of such substances on the Property. If
Mortgagor fails to provide same after twenty (20) days'
notice, Mortgagee may order same, and Mortgagor grants to
Mortgagee and its employees and agents such access to the
Property and a license to undertake the testing. The cost
of such tests shall be added to the indebtedness evidenced
by the Revolving Loan Notes and/or the Auction Notes, at
Mortgagee's election, and secured by this Mortgage.
Section 1.5. Use of Property. Mortgagor
represents, covenants and warrants to Mortgagee as follows:
(a) No portion of the Property is located in an area
identified by the Secretary of Housing and Urban Development
or any successor thereto as an area having special flood
hazards pursuant to the National Flood Insurance Act of 1968
or the Flood Disaster Protection Act of 1973, as amended, or
any successor law, except where the location in such an area
could not reasonably be expected to have a Material Adverse
Effect.
(b) The Property and the present and contemplated uses
and occupancies thereof are in compliance in all respects
with all applicable federal, state, county and local laws,
ordinances, building codes, orders, rules and regulations
pertaining to zoning, parking, construction, building, land
use and environmental matters, except where non-compliance
could not reasonably be expected to have a Material Adverse
Effect.
(c) Other than as permitted under the Indenture, no
portion of the Property has been the subject of a Taking (as
hereinafter defined).
(d) Mortgagor and its agents have not entered into any
leases or other arrangements for occupancy of space within
the Property other than those leases made available to
Mortgagee. Other than to the extent not prohibited by the
Indenture (as currently in effect and irrespective of
whether the Indenture is subsequently terminated), there are
no agreements, contracts or lease provisions, written or
oral, providing any tenant of the Property or any other
third party the option to purchase all or any part of the
Property.
(e) Each identifiable portion of the Property is taxed
separately without regard to any other property and for all
purposes each such portion may be mortgaged, conveyed, and
otherwise dealt with as an independent parcel.
(f) Mortgagor covenants that the representations set
forth in this Section shall be true until the Secured
Obligations have been fully and finally paid and there is no
further obligation to extend credit to Mortgagor under the
Loan Documents.
(g) The Property complies in all material respects
with all federal, state, county, municipal and local laws,
ordinances and regulations relating to subdivision and may
be lawfully conveyed by the legal description attached
hereto.
Section 1.6. Taxes, Assessments and Other Charges.
Mortgagor shall pay, before the same become delinquent, all
taxes (including, without limitation, any registration or
recording taxes incurred in connection with this Mortgage,
if applicable), insurance premiums, assessments, dues,
fines, impositions, and public charges, general and special,
ordinary and extraordinary, of every character (including
penalties and interest), all charges made by utility
companies, public or private, for services furnished or used
in connection with the Property, all common area utility and
maintenance charges, and all other impositions attributable
to the Property ("Impositions"). Mortgagor may protest or
contest Impositions in accordance with the provisions of the
Credit Agreement.
Section 1.7. Defense of Title and Litigation.
Mortgagor will not allow or permit any Lien other than
Permitted Liens and Permitted Encumbrances to be asserted
against the Property. If the Lien created by this Mortgage,
or the validity, enforceability or priority thereof or of
this Mortgage, or if title or any of the rights of Mortgagor
or Mortgagee in or to any material (as determined in the
sole discretion of Mortgagee) portion of the Property, shall
be endangered or questioned, or shall be attacked directly
or indirectly, or if any action or proceeding is instituted
against Mortgagor or Mortgagee with respect thereto,
Mortgagor will promptly notify Mortgagee thereof and will
diligently endeavor to cure any defect which may be
developed or claimed and/or will take all necessary and
proper steps for the defense of such action or proceeding,
including the employment of counsel, the prosecution or
defense of litigation and, subject to Mortgagee's reasonable
approval, the compromise, release or discharge of any and
all adverse claims. Mortgagee (whether or not named as a
party to such actions or proceedings) is hereby authorized
and empowered (but shall not be obligated) to take such
additional steps as it may deem necessary or proper for the
defense of any such action or proceeding or the protection
of the lien, security interest, validity, enforceability or
priority of this Mortgage or of such title or rights,
including the employment of counsel, the prosecution or
defense of litigation, the compromise, release or discharge
of such adverse claims, the purchase of any tax title and
the removal of such prior liens and security interests.
Mortgagor shall, on demand, reimburse Mortgagee and Lenders
for all expenses (including reasonable attorneys' fees and
disbursements) incurred by Mortgagee and Lenders in
connection with the foregoing matters. All such costs and
expenses of Mortgagee and Lenders, until reimbursed by
Mortgagor, shall be part of the Secured Obligations and
shall be deemed to be secured by this Mortgage.
Section 1.8. Zoning and Title Matters. Mortgagor
will not, without the prior written consent of Mortgagee,
initiate or support any zoning reclassification of the
Property or seek any variance under existing zoning
ordinances applicable to the Property, use or permit the
use of the Property in a manner which would result in such
use becoming a nonconforming use under applicable zoning
ordinances, modify, amend or supplement any of the
Permitted Exceptions where such modification, amendment or
supplement is materially adverse to the rights and interests
of Mortgagee or Lenders or permit or allow the Property to
be used by the public or any person in such manner as might
make possible a claim of adverse usage or possession or of
any implied dedication or easement by prescription;
provided, however, that the prohibitions set forth in
clauses (a), (b) and (d) hereof shall be inapplicable so
long as Mortgagor's actions, individually or in the
aggregate, do not have or could not be reasonably expected
to have a Material Adverse Effect.
Section 1.9. Insurance and Risk of Loss.
(a) Mortgagor shall keep or cause to be kept such
casualty and liability insurance concerning the Property as
is, or from time to time may be, required in accordance with
the Credit Agreement with companies, in amounts and against
insurable hazards as set forth therein. Such insurance
shall be maintained in effect as long as all of the Release
Conditions have not been satisfied.
(b) Mortgagor shall not obtain or carry separate
insurance concurrent in form or contributing in the event of
loss with that required hereunder or under the Credit
Agreement. Except for the Indenture Trustee, Mortgagee
shall be named as sole loss payee on each property insurance
policy relating to the Property pursuant to a standard non-
contributory mortgagee endorsement. Upon the reasonable
request of Mortgagee, Mortgagor shall provide to Mortgagee a
copy of all policies evidencing insurance in compliance with
the terms of the Credit Agreement.
Section 1.10. Effect of Changes in Laws Regarding
Taxation. In the event of the enactment after the date of
this Mortgage of any law of any state in which the Property
is located or any political subdivision thereof deducting
from the value of land for the purpose of taxation any lien
thereon, or imposing upon Mortgagee the payment of the whole
or any part of the taxes or assessments or charges or liens
herein required to be paid by Mortgagor, or changing in any
way the laws relating to the taxation of mortgages or debts
secured by mortgages or deeds of trust or similar
instruments, or Mortgagee's interest in the Property, or the
manner of collection of taxes, so as to adversely affect the
lien of this Mortgage or the Secured Obligations or the then
holders thereof (each, a "Mortgage Tax Event"), then, and in
any such event, Mortgagor, upon demand by Mortgagee, shall
pay such taxes or assessments, or reimburse Mortgagee
therefore; provided, however, that if the Mortgage Tax Event
could reasonably be expected to have a Material Adverse
Effect and in the opinion of counsel for Mortgagee it might
be unlawful to require Mortgagor to make such payment or
the making of such payment might result in the imposition of
interest beyond the maximum amount permitted by law, (each
Mortgage Tax Event subject to such determination is
hereinafter referred to as a "Nonreimbursable Mortgage Tax
Event") then and in such event, Mortgagee may elect, by
notice in writing given to Mortgagor, to declare all of the
Secured Obligations to be and become due and payable sixty
(60) days from the giving of such notice. The foregoing
shall not, however, impose upon Mortgagor, the obligation to
pay or reimburse Mortgagee for any tax in the nature of an
income tax.
Section 1.11. Changes to Mortgage or Related
Documents. If the Secured Obligations or any part thereof
are extended or varied or if any part of the security is
released, all persons now or at any time hereafter liable
therefor, or whose consent to this Mortgage was obtained,
shall be held to assent to such extension, variation or
release, and their liability and the lien and all provisions
hereof shall continue in full force, the right of recourse,
if any, against all such persons being expressly reserved by
Mortgagee, notwithstanding such extension, variation or
release. Any person or entity taking a junior mortgage or
other lien upon the Property or any interest therein, shall
take said lien subject to the rights of Mortgagee to amend,
modify, and supplement, restate and consolidate this
Mortgage and the Loan Documents to which Mortgagor is a
party and to vary the rate of interest and the method of
computing the same, and to increase the principal amount
thereof, and to impose additional fees and other charges,
and to extend the maturity of said indebtedness, and to
grant partial releases of the lien of this Mortgage, in each
and every case without obtaining the consent of the holder
of such lien and without the lien of this Mortgage losing
its priority over the rights of any such junior lien.
Nothing in this Section shall be construed as waiving any
provision contained herein which provides, among other
things, that it shall constitute an Event of Default if the
Property be sold, conveyed, or encumbered unless permitted
by the Loan Documents to which Mortgagor is a party.
Section 1.12. Eminent Domain and Casualty.
(a) In the event that title to, or the use of the
Property or any part thereof shall be taken pursuant to
eminent domain or condemnation proceedings, or by any
settlement or compromise of such proceedings (each a
"Taking"), Mortgagor shall give prompt written notice
thereof to Mortgagee. All compensation received as a result
of any Taking shall be paid to the Indenture Trustee to the
extent required by the provisions of the Indenture and then,
subject to the provisions of paragraph (c) hereof, to
Mortgagee.
(b) Mortgagor shall give prompt written notice to
Mortgagee of the occurrence of any material casualty and
such occurrence shall not relieve Mortgagor of any of its
obligations specified in the Loan Documents to which
Mortgagor is a party. All compensation received as a result
of any casualty shall be paid to the Indenture Trustee to
the extent required by the provisions of the Indenture and
then, subject to the provisions of paragraph (c) hereof, to
Mortgagee.
(c) Upon the expiration or termination of the
Indenture and continuing until the Maturity Date, Mortgagor
shall enter into arrangements with Mortgagee which are
substantially similar (as determined by Mortgagee) to those
set forth in Section 6 of Article III, Section 3 of Article
VIII and Article IX of the Indenture, as in effect on the
date hereof.
Section 1.13. Mortgagee's Performance of Defaulted
Acts; Subrogation.
(a) If an Event of Default shall have occurred,
Mortgagee may, but need not, pay or perform any Secured
Obligation which Mortgagor has failed to pay or perform, in
any form and manner deemed expedient, and may, but need not,
make full or partial payments of principal or interest on
prior encumbrances, if any, and purchase, discharge,
compromise or settle any tax lien or other prior lien or
title or claim thereof, or redeem from any tax sale or
forfeiture or contest any tax or assessment, including
without limitation the payment of principal, premium and/or
interest on the Secured Obligations, whether at maturity,
upon acceleration or otherwise. Mortgagee and any person
designated by Mortgagee shall have the right, and is hereby
granted the right, to enter upon the Property for the
foregoing purposes. All moneys paid for any of the purposes
herein authorized and all expenses paid or incurred in
connection therewith, including reasonable attorneys' fees,
and any other moneys advanced by Mortgagee to protect the
Property and the lien hereof, shall be so much additional
indebtedness secured hereby, and shall become immediately
due and payable without notice and with interest thereon at
the rate of interest payable after an Event of Default.
Inaction of Mortgagee shall never be considered a waiver of
any right accruing to it on account of any default on the
part of Mortgagor. No payment by Mortgagee shall relieve
Mortgagor from any default hereunder or impair any right or
remedy of Mortgagee.
(b) Should any amount paid out, advanced or incurred
hereunder by Mortgagee be used directly or indirectly to pay
off, discharge or satisfy, in whole or in part, any lien or
encumbrance upon the Property or any part thereof on a
parity with or prior or superior to the lien hereof, then as
additional security hereunder, Mortgagee shall be subrogated
to any and all rights, equal or superior titles, liens and
equities, owned or claimed by any owner or holder of said
outstanding liens, charges and indebtedness, however remote,
regardless of whether said liens, charges and indebtedness
are acquired by assignment or have been released of record
by the holder thereof upon payment.
Section 1.14. Ownership of Property and Mortgagor's
Interest. Except as otherwise provided in Article VIII of
the Indenture (as in effect on the date hereof), Mortgagor
shall not, directly or indirectly, transfer, pledge,
encumber, suffer to exist any Lien (except for the Permitted
Exceptions and the Permitted Liens), on, or, except as
provided in the Credit Agreement, assign, lease or sublease
all or any portion of any interest in, the Property.
Mortgagor shall provide Mortgagee with copies of any
agreements, instruments or other documents delivered to the
Indenture Trustee pursuant to Article VIII of the Indenture.
If the Indenture expires or terminates prior to the Maturity
Date, Mortgagor shall enter into arrangements with Mortgagee
which are substantially similar (as determined by Mortgagee)
to those set forth in Article VIII of the Indenture.
Section 1.15. Assignment of Leases and Rents.
(a) The assignment set forth in paragraph (H) of the
section of this Mortgage entitled "The Property"
("Paragraph (H)") shall, to the extent permitted by law and
the terms of the leases and other documents related to such
assignment, constitute an absolute and present assignment of
the leases, rents, royalties, issues, profits, revenues,
income and other benefits described in said paragraph,
subject, however, to the rights of the Indenture Trustee
under the Indenture and to the conditional permission given
to Mortgagor to collect and use the same as provided in said
paragraph. Neither the existence nor the exercise of such
conditional permission shall subordinate such assignment to
any subsequent assignment by Mortgagor, and all such
subsequent assignments shall be subject to the rights of
Mortgagee under this Mortgage. Subject to the rights of the
Indenture Trustee under the Indenture, the assignment set
forth in Paragraph (H) shall be fully operative without any
further action by Mortgagor or Mortgagee. Subject to the
rights of the Indenture Trustee under the Indenture,
Mortgagee is hereby irrevocably authorized and empowered, at
its option, to demand, collect, receive and enforce payment
of any and all such rents, royalties, issues, profits,
revenues, income and other benefits at any time during the
continuance of any Event of Default, and to give receipts,
releases and satisfactions therefor, whether or not
Mortgagee shall have taken, or at any time shall take,
possession of the Land, the Buildings or any other part of
the Property. Mortgagee is hereby irrevocably authorized to
notify all tenants, licensees, occupants and other users of
all or any part of the Property of Mortgagee's rights under
this Section and under Paragraph (H).
(b) Subject to the rights of the Indenture Trustee
under the Indenture, Mortgagor hereby grants to Mortgagee
the right, at Mortgagee's option at any time after the
occurrence of any Event of Default, to take all actions with
respect to any and all such rents, royalties, issues,
profits, revenues, income and other benefits as are
contemplated by Section 2.3 of this Mortgage. Mortgagor
hereby irrevocably authorizes and appoints Mortgagee the
agent and attorney-in-fact of Mortgagor, at Mortgagee's
option, subject to the rights of the Indenture Trustee under
the Indenture, to manage said property and demand, collect,
receive and enforce payment of any and all such rents,
royalties, issues, profits, revenues, income and other
benefits after the occurrence of any Event of Default, to
give receipts, releases and satisfactions therefor and to
apply such collections in the manner provided in Section
2.3, which appointment shall be deemed to be coupled with an
interest. Such assignment, grant and appointment shall
continue in effect until all of the Release Conditions have
been satisfied. Mortgagor hereby further grants to
Mortgagee, subject to the rights of the Indenture Trustee
under the Indenture, the right (i) to enter upon and take
possession of the Property for the purpose of collecting
such rents, issues and profits; (ii) to dispossess by the
usual summary proceeding any tenant defaulting in the
payment thereof to Mortgagee; (iii) to let the Property, or
any part thereof; and (iv) to apply said rents, issues and
profits, after payment of all necessary charges and
expenses, on account of said Secured Obligations. Mortgagor
hereby irrevocably consents to the entry upon and taking
possession of the Property by Mortgagee pursuant to such
grant and appointment, whether or not foreclosure
proceedings shall have been commenced and without applying
for a receiver. Neither the exercise by Mortgagee of any
rights under this Section or Paragraph (H), nor the
application of any such rents, royalties, issues, profits,
revenues, income or other benefits to the Secured
Obligations, shall cure or waive any Event of Default or any
notice of any Event of Default or invalidate any such notice
or any act done pursuant to this Mortgage or pursuant to any
such notice.
(c) Upon request by Mortgagee, Mortgagor shall confirm
its assignment to the extent provided above to Mortgagee, as
additional security for the Secured Obligations, by a
written document approved by Mortgagee, of all right, title
and interest of Mortgagor in and to any and all leases now
or hereafter affecting all or any part of the Property,
together with any and all guaranties and security of, for or
otherwise relating to such leases and all rent and other
money payable or accruing under or in connection with such
leases, subject to the rights of the Indenture Trustee under
the Indenture and the conditional permission given to
Mortgagor to collect and use the rents, royalties, issues,
profits, revenues, income and other benefits arising under
such leases as provided above.
(d) Nothing herein contained shall be construed as
constituting Mortgagee a mortgagee in possession in the
absence of the taking of actual possession of the Property
by Mortgagee pursuant to the terms hereof. Nothing
contained in this Mortgage shall be construed as imposing on
Mortgagee any of the obligations of the lessor under any
lease of the Property in the absence of an explicit
assumption thereof by Mortgagee. If, in the exercise of the
powers herein granted to Mortgagee, liability shall be
asserted or enforced against Mortgagee, all such liability
is expressly waived and released by Mortgagor.
(e) Although it is the intention of the parties that
the assignment contained in this Section shall be a present
absolute assignment, subject to the rights of the Indenture
Trustee under the Indenture and to the extent permitted by
law and the terms of the leases and any other documents
related to such assignment, it is expressly understood and
agreed, anything herein contained to the contrary
notwithstanding, that Mortgagee shall not exercise any of
the rights or powers conferred upon it by this Section
unless and until an Event of Default shall have occurred
hereunder or under any of the Loan Documents.
Section 1.16. Security Agreement and Financing
Statements.
(a) Mortgagor and Mortgagee agree: that this Mortgage
shall constitute a Security Agreement within the meaning of
the Uniform Commercial Code (the "Code") as the same may,
from time to time be in effect in the State of New York;
provided, that in the event that, by reason of mandatory
provisions of law, any or all of the attachment, perfection
or priority of the Lenders' security interest in any
Property is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than the State of New York,
the term "Code" shall mean the Uniform Commercial Code as in
effect in such other jurisdiction for purposes of the
provisions of this Mortgage relating to such attachment,
perfection or priority and for purposes of definitions
related to such provisions, with respect to any property
included in the definition herein of the word "Property,"
which property may not be deemed to form a part of the Land
or may not constitute a "fixture" (within the meaning of the
applicable section of the Code) and any fixture which
constitutes a part of the Property, and all replacements of
such property, substitutions for such property, additions to
such property, and the proceeds thereof (subsections (1) and
(2) are collectively referred to herein as the
"Collateral"); (ii) that a security interest in and to the
Collateral is hereby granted to Mortgagee and that, upon
recordation in the real estate records of the proper office
this instrument shall constitute a "fixture filing" within
the meaning of the applicable section of the Code; and (iii)
that all of Mortgagor's right, title and interest to the
Collateral are hereby assigned to Mortgagee; all to secure
payment of the Secured Obligations. Without limiting the
foregoing, Mortgagor agrees that it will execute and cause
to be properly filed and/or recorded such further Financing
Statements and Continuation Statements as Mortgagee may
request in order to perfect and preserve the security
interest of Mortgagor in the Collateral.
(b) If any Event of Default occurs hereunder,
Mortgagee, pursuant to the appropriate provisions of the
Code, shall have an option to proceed with respect to both
the real property and the Collateral in accordance with its
rights, powers and remedies with respect to the real
property, in which event the default provisions of the Code
shall not apply. The parties agree that if Mortgagee shall
elect to proceed with respect to the Collateral separately
from the real property, Mortgagee shall have all remedies
available to a secured party under the Code and ten (10)
days' notice of the sale shall be reasonable notice. The
reasonable expenses of retaking, holding, preparing for
sale, selling and the like incurred by Mortgagee shall
include, but not be limited to, reasonable attorneys' fees
and legal expenses incurred by Mortgagee.
(c) Except as otherwise permitted by the Credit
Agreement or the Indenture as in effect on the date hereof,
Mortgagor agrees that, without the written consent of
Mortgagee, Mortgagor will not remove or permit the removal
of any Collateral.
Section 1.17. After Acquired Property. To the
extent permitted by law and subject to the rights of the
Indenture Trustee under the Indenture, the lien of this
Mortgage shall attach automatically, without the necessity
of any action by Mortgagor or any other person, to all
right, title and interest of Mortgagor in and to any and all
after-acquired property of the character or type described
in the section of this Mortgage entitled "The Property".
Mortgagor shall promptly execute and deliver to Mortgagee
such documents and instruments as may be necessary or as
reasonably requested by Mortgagee to confirm and perfect
such lien. Mortgagor hereby irrevocably authorizes and
appoints Mortgagee the agent and attorney-in-fact of
Mortgagor to execute all such documents and instruments on
behalf of Mortgagor, which appointment shall be deemed to be
coupled with an interest.
Section 1.18. Collateral Protection. UNLESS
MORTGAGOR PROVIDES MORTGAGEE WITH EVIDENCE OF INSURANCE
COVERAGE REQUIRED BY THE LOAN DOCUMENTS, MORTGAGEE MAY
PURCHASE INSURANCE AT MORTGAGOR'S EXPENSE TO PROTECT
MORTGAGEE'S INTEREST IN THE PROPERTY. THIS INSURANCE MAY,
BUT NEED NOT, PROTECT MORTGAGOR'S INTEREST. THE COVERAGE
THAT MORTGAGEE MAY PURCHASE MAY NOT PAY ANY CLAIM THAT
MORTGAGEE MAKES OR ANY CLAIM THAT IT MIGHT MAKE AGAINST
MORTGAGOR IN CONNECTION WITH THE PROPERTY. MORTGAGOR MAY
LATER CANCEL ANY INSURANCE PURCHASED BY MORTGAGEE BUT ONLY
AFTER PROVIDING MORTGAGEE WITH EVIDENCE THAT MORTGAGOR HAS
OBTAINED INSURANCE AS REQUIRED BY THE LOAN DOCUMENTS. IF
MORTGAGEE PURCHASES INSURANCE FOR THE PROPERTY, MORTGAGOR
WILL BE RESPONSIBLE FOR THE COST OF THAT INSURANCE,
INCLUDING INTEREST AND OTHER CHARGES MORTGAGEE MAY IMPOSE IN
CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE
EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE
INSURANCE. THE COST OF THE INSURANCE MAY BE ADDED TO
MORTGAGOR'S TOTAL SECURED OBLIGATIONS. THE COST OF THE
INSURANCE MAY BE MORE THAN THE COST OF INSURANCE MORTGAGOR
MAY BE ABLE TO OBTAIN ON ITS OWN. BY EXECUTING THIS
DOCUMENT, MORTGAGOR ACKNOWLEDGES THE FOREGOING.
ARTICLE II
DEFAULTS AND REMEDIES
Section 2.1 Event of Default. As used in this
Mortgage, the term "Event of Default" shall mean and refer
to each and all of the following:
(a) an "Event of Default" under and as defined in the
Credit Agreement and the Existing Letter of Credit
Agreements; and
(b) the occurrence of a Nonreimbursable Mortgage Tax
Event.
Upon the occurrence of any Event of Default hereunder, the
Secured Obligations may be accelerated as provided in the
Credit Agreement and Mortgagor shall be entitled to exercise
any remedies provided for in this Mortgage, in the Loan
Documents, or under any applicable law.
Section 2.2. Mortgagee's Power of Enforcement.
Subject to the rights of the Indenture Trustee under the
Indenture, the terms of the Existing Letter of Credit
Agreements and the terms of the Credit Agreement, at any
time after the occurrence of any Event of Default, Mortgagee
may proceed by any appropriate judicial or non-judicial
action or proceeding to (a) enforce payment of all or any
part of the Secured Obligations in accordance with the Loan
Documents to which Mortgagor is a party, (b) declare the
entire balance of any or all of the Secured Obligations to
be immediately due and payable without presentment, demand,
protest or notice of any kind (all of which are hereby
expressly waived by Mortgagor), (c) enforce performance of
any term of this Mortgage or any of the other Loan Documents
to which Mortgagor is a party, (d) enforce any other rights
of Mortgagee with respect to the Secured Obligations, the
Property or any other security for the Secured Obligations,
(e) foreclose this Mortgage and sell, or cause the sale of,
the Property, as an entirety or in separate parts, pursuant
to any power of sale now or hereafter permitted by law, or
pursuant to the judgment, order or decree of any court of
competent jurisdiction, (f) to the extent permitted by law,
pursue the partial foreclosure of this Mortgage for any part
of the Secured Obligations then due and payable, subject to
the continuing encumbrance of this Mortgage as security for
the balance of the Secured Obligations not then due, (g)
advance sums, in an amount to be determined by Mortgagee in
its sole discretion, to satisfy any or all of Mortgagor's
obligations under the Loan Documents to which Mortgagor is a
party, or (h) pursue any other rights, powers and remedies
available to Mortgagee, at law or in equity, in connection
with the Secured Obligations, the Property or any other
security for the Secured Obligations. Mortgagee shall be
entitled to collect from Mortgagor all costs, charges and
expenses, including reasonable attorneys' fees and expenses,
incurred in connection with the exercise of any of the
foregoing remedies, even if redemption is had by Mortgagor
after foreclosure proceedings have begun. After the
occurrence of any Event of Default, Mortgagee may pursue any
or all such actions or proceedings, at Mortgagee's option,
separately or concurrently and in such order as Mortgagee
may desire, either with or without entry or taking
possession and whether or not all or any part of the Secured
Obligations shall have been declared to be immediately due
and payable or shall otherwise be due. After the occurrence
of any Event of Default, Mortgagee may pursue any and all
such actions or proceedings without prejudice to Mortgagee's
right thereafter to foreclose this Mortgage and without
prejudice to any right of Mortgagee thereafter to proceed by
any other action or proceeding to enforce any or all rights,
powers and remedies of Mortgagee with respect to the Secured
Obligations, the Property or any other security for the
Secured Obligations, even if the basis for any such
subsequent action or proceeding is an Event of Default which
existed at the time such earlier action or proceeding was
commenced. Lenders have granted to Mortgagee the express
and exclusive authority to enforce this Mortgage. Lenders
agree to cooperate with, and give their full assistance to,
Mortgagee in connection with its enforcement of the Mortgage
pursuant to this Section 2.2 including, without limitation,
assigning any Revolving Loan Notes or Auction Notes then
held by such Lenders to the Mortgagee in connection with the
foreclosure of the Mortgage.
Section 2.3. Mortgagee's Right To Enter and Take
Possession.
(a) Subject to the rights of the Indenture Trustee
under the Indenture, at any time after the occurrence of any
Event of Default, whether or not foreclosure proceedings
shall have been instituted or whether before or after the
whole principal sum secured hereby is accelerated,
Mortgagee, to the extent and in the manner permitted by law,
may enter and take possession of all or any part of the
Property, may exclude Mortgagor and its officers, employees,
agents, contractors, attorneys and other representatives
therefrom and may have access to the books, papers and
accounts of Mortgagor and of any manager of the Property to
the fullest extent permitted by law. Subject to the rights
of the Indenture Trustee, upon request by Mortgagee at any
time during the continuance of any Event of Default,
Mortgagor shall peaceably and quietly vacate, surrender and
deliver possession of the Property (or any part of the
Property that may be designated by Mortgagee) to Mortgagee,
and, if the Property is leased or subleased, deliver to
Mortgagee the rent security deposits and all of the leases
and subleases, with such additional assignments thereof as
Mortgagee may request. Subject to the rights of the
Indenture Trustee under the Indenture, Mortgagor further
agrees that Mortgagee may assume the management of the Real
Property, enter into new leases and subleases and collect
the rents, applying the same upon the Secured Obligations in
the manner provided in the Collateral Agency Agreement.
If Mortgagor shall not vacate, surrender and deliver
possession of the Property (or such part of the Property) to
Mortgagee as provided above, then, without limiting any
other right to enter and take possession of the Property (or
such part of the Property), Mortgagee, subject to the rights
of the Indenture Trustee under the Indenture, may resort to
any and all legal and equitable remedies required to evict
and dispossess Mortgagor therefrom including, without
limitation, one or more summary proceedings or actions for
forcible entry and detainer, trespass to try title or
restitution), and Mortgagee may obtain a judgment, order or
decree of any court of competent jurisdiction conferring on
Mortgagee the right to immediate possession and requiring
Mortgagor to immediately vacate, surrender and deliver
possession of the Property (or such part of the Property) to
Mortgagee. Mortgagor hereby specifically and irrevocably
consents to the entry of any such judgment, order or decree.
Upon request by Mortgagee, Mortgagor shall pay to Mortgagee,
or to any other person that Mortgagee may designate, all
costs, expenses and liabilities (including, without
limitation, reasonable attorneys' fees) incurred by
Mortgagee in connection with any such failure to vacate,
surrender and deliver possession or in connection with any
such judgment, order or decree or the exercise of any such
remedies, together with interest thereon at the rate of
interest payable after an Event of Default, from the date
incurred by Mortgagee until the date so paid to, or as
directed by, Mortgagee.
(b) After any such entry into possession, and to the
fullest extent permitted by law, Mortgagee, acting in
Mortgagor's name or otherwise, may hold, store, use,
operate, manage and control the Property (or any part of the
Property which then is in the possession of Mortgagee) and
may conduct the business and operations thereof in its own
name or in the name of Mortgagor. In doing so, Mortgagee
may, but shall not be obligated to:
(i) carry out any and all necessary and desirable
maintenance, repairs, renewals, replacements, alterations,
additions, betterments and improvements of or to the
Property (or such part of the Property);
(ii) purchase or otherwise acquire and install in or
on the Property (or such part of the Property) additional
fixtures, personal property and other property of the type
encumbered by this Mortgage;
(iii) insure the Property or keep the Property
insured;
(iv) manage, operate and exercise all rights and
powers of Mortgagor with respect to the Property (or such
part of the Property) and the management and operation
thereof (including, without limitation, the right to enter
into or cancel, enforce or modify leases and subleases, to
evict tenants by summary proceedings or otherwise and to
take other appropriate steps to enforce leases and
subleases);
(v) enter into agreements with others to exercise the
rights and powers of Mortgagee under this Mortgage; and
(vi) collect and receive all rents, royalties, issues,
profits, revenues, income and other benefits of and from the
Property (or such part of the Property) and any business or
other operations conducted therein or thereon by or on
behalf of or for the benefit of Mortgagor (including those
past due as well as those accruing thereafter).
(c) In the event of any such entry into possession,
Mortgagee shall be liable to account only for rents,
royalties, issues, profits, revenues, income and benefits
actually received by Mortgagee while in possession of the
Property. In the event of any foreclosure, Mortgagee may
remain in possession of all or any part of the Property
until the foreclosure sale and thereafter during any period
of redemption. In the absence of any foreclosure, Mortgagee
may remain in possession of all or any part of the Property
as long as there exists an Event of Default. The same right
of taking possession shall exist during the continuance of
any subsequent Event of Default. Mortgagee shall not be
obligated, by virtue of this Section or by virtue of any
actions contemplated by this Mortgage or by any of the other
Loan Documents to which Mortgagor is a party, to perform or
discharge any obligation, duty or liability of Mortgagor
under any lease or other agreement relating to all or any
part of the Property or under any law, ordinance, rule,
regulation, order, judgment, injunction or decree relating
to all or any part of the Property. Mortgagee shall not
incur any liability for, nor shall Mortgagor assert any
claim or set off as a result of, any acts or omissions of
Mortgagee or any of Mortgagee's officers, employees, agents,
contractors, attorneys or other representatives, while in
possession of all or any part of the Property (except for
damages directly caused by Mortgagee's own gross
negligence). Mortgagor hereby expressly and irrevocably
waives, releases, discharges and relinquishes all such
liabilities, claims and rights of set off, except as
provided above.
(d) Upon request by Mortgagee, Mortgagor shall pay to
Mortgagee, or to any other person that Mortgagee may
designate, all costs, expenses and liabilities incurred by
Mortgagee including, without limitation, reasonable
attorneys' fees and costs, appraisers' fees and costs,
outlays for documentary and expert evidence, stenographers'
charges, publication costs, transfer taxes on any deed or
conveyance and costs which may be estimated as to items to
be expended after entry of the decree of procuring all such
abstracts of title, title searches and examinations, title
insurance policies, Torrens certificates, and similar data
and assurances with respect to title and value as Mortgagee
may deem reasonably necessary either to prosecute any suit
or proceeding or to evidence to bidders at any sale which
may be had pursuant to such decree or statutory power of
sale the true condition of the title to or the value of the
Property or any other costs, expenses or liabilities
incurred in connection with the holding, storage, use,
operation, management, control, maintenance, repair,
alteration or improvement of all or any part of the Property
(except to the extent such costs, expenses and liabilities
shall have been paid out of collections from the Property as
provided above), together with interest on such amounts as
are incurred by Mortgagee at the rate of interest payable
after an Event of Default, from the date incurred by
Mortgagee, until the date so paid to Mortgagee.
(e) Without limiting the liability of Mortgagor set
forth above, Mortgagor shall indemnify Mortgagee, Lenders
and their respective officers, directors, employees and
agents (each, an "Indemnified Person"), and hold them
harmless from and against all claims, injury, damage, loss
and liability of any and every kind to any persons or
property by reason of the ownership, operation or
maintenance of the Property or any other action or inaction
by or matter which is the responsibility of Mortgagor
(collectively, "Indemnified Liabilities"), except to the
extent that any such Indemnified Liability is finally
determined by a court of competent jurisdiction to have
resulted from such Indemnified Person's gross negligence or
willful misconduct.
Section 2.4. Appointment of Receiver.
(a) At any time after the occurrence of any Event of
Default, Mortgagee, to the extent permitted by law, subject
to the rights of the Indenture Trustee under the Indenture,
and without regard to the value, adequacy or occupancy of
the Property or the solvency of Mortgagor, shall be entitled
as a matter of right and without notice or the requirement
of bond (notice and bond being hereby waived), if it so
elects, to the appointment of a receiver either before or
after sale, without regard to the solvency or insolvency of
Mortgagor at the time of application to enter upon and take
possession of the Property, collect all rents, royalties,
issues, profits, revenues, income and other benefits of and
from the Property and any business or other operations
conducted in or on the Property by or on behalf of or for
the benefit of Mortgagor and apply the same as the court
may direct or otherwise as may be permitted by law.
Mortgagor hereby specifically and irrevocably consents to
such appointment. Without limiting the generality of the
foregoing or of any other provision of this Mortgage,
Mortgagor agrees that any failure of Mortgagor to pay any
real estate or other taxes, insurance premiums required
pursuant to the terms of this Mortgage or any Impositions,
other than real estate or other taxes, which are necessary
to preserve the Property or protect the Property from waste
or to maintain any insurance required pursuant to the terms
of this Mortgage shall constitute waste, justifying the
appointment of a receiver after the expiration of the
applicable cure period, except where the failure to do so
could not reasonably be expected to have a Material Adverse
Effect. The receiver shall be entitled to hold, store, use,
operate, manage and control the Property and conduct the
business and operations thereof as would Mortgagee pursuant
to the immediately preceding Section and shall have all
rights and powers permitted by law and such other rights and
powers as the court making such appointment shall confer.
The receiver shall be liable to account only for rents,
royalties, issues, profits, revenues, income and other
benefits actually received by such receiver.
Notwithstanding the appointment of any receiver or other
custodian, Mortgagee, as pledgee or depository, shall be
entitled to the possession and control of any cash, deposits
or instruments held by Mortgagee at the time of such
appointment or payable or deliverable to Mortgagee from time
to time pursuant to this Mortgage or any of the other Loan
Documents to which Mortgagor is a party.
(b) Upon request by Mortgagee, Mortgagor shall pay to
Mortgagee, or to any other person that Mortgagee may
designate, or to any such receiver, all costs, expenses and
liabilities (including, without limitation, reasonable
attorneys' fees, receivers' fees, agents' compensation and
the fees of any manager retained by such receiver) incurred
by Mortgagee, or by such receiver in connection with the
appointment of such receiver and the exercise of the rights
and powers of such receiver, except to the extent such
costs, expenses and liabilities shall have been paid out of
collections from the Property from the date incurred by
Mortgagee or by such receiver until the date so paid to
Mortgagee or to such receiver.
Section 2.5. Waiver of Certain Rights. Mortgagor
agrees, to the extent permitted by law, that neither
Mortgagor nor any person at any time claiming through or
under Mortgagor shall set up, claim or seek to take
advantage of any law now or hereafter in force pertaining to
the rights of sureties or providing for any appraisement,
valuation, stay, notice of election to accelerate maturity
or to declare the Secured Obligations due, extension,
redemption, moratorium, homestead or exemption from
execution or sale, in order to prevent or hinder the
foreclosure of this Mortgage after the occurrence of any
Event of Default, the final and absolute sale of all or any
part of the Property or the final and absolute putting into
possession thereof, immediately after any such sale, of the
purchaser or purchasers at such sale or the enforcement of
any other rights or remedies of Mortgagee under this
Mortgage or under any of the other Loan Documents to which
Mortgagor is a party. After the occurrence of any Event of
Default, Mortgagee, subject to the rights of the Indenture
Trustee under the Indenture, or any court having
jurisdiction to foreclose this Mortgage may sell the
Property in part or as an entirety. Mortgagee shall not be
required to accept the Property, any part or parts thereof
or any other security for the Secured Obligations in
satisfaction of all or any part of the Secured Obligations.
Mortgagee shall not be required to accept any apportionment
of the Secured Obligations to or among any part or parts of
the Property or any other security for the Secured
Obligations. If any law now in force of which Mortgagor
might take advantage despite this Section shall be repealed
or shall cease to be in force after the date hereof, then
such law shall not thereafter be deemed to preclude the
application of this Section.
Section 2.6. Leases. Any foreclosure of this
Mortgage and any other transfer of all or any part of the
Property in extinguishment of all or any part of the Secured
Obligations may, at Mortgagee's option, be subject to any or
all leases of all or any part of the Property and the rights
of tenants under such leases. No failure to make any such
tenant a defendant in any foreclosure proceedings or to
foreclose or otherwise terminate any such lease and the
rights of any such tenant in connection with any such
foreclosure or transfer shall be, or be asserted to be, a
defense or hindrance to any such foreclosure or transfer or
to any proceedings seeking collection of all or any part of
the Secured Obligations (including, without limitation, any
deficiency remaining unpaid after completion of any such
foreclosure or transfer).
Section 2.7. Suits To Protect Property. Mortgagee is
hereby irrevocably authorized, at Mortgagee's option, to
initiate and maintain any and all suits and proceedings that
Mortgagee may deem advisable, at Mortgagor's expense (a) to
prevent any impairment of the Property or of the security of
this Mortgage by any unlawful acts or omissions, (b) to
prevent the occurrence or continuance of any violation of
this Mortgage or of any of the other Loan Documents, (c) to
foreclose this Mortgage, (d) to preserve and protect
Mortgagee's interest in the Property and (e) to restrain the
enforcement of, or compliance with, any law, ordinance,
rule, regulation, order, judgment, injunction or decree that
may be unconstitutional or otherwise invalid, if such
enforcement or compliance might in Mortgagee's judgment
impair the Property or the security of this Mortgage or be
prejudicial to the interests of Mortgagee.
Section 2.8. No Waiver.
(a) No delay or omission of Mortgagee to insist upon
strict performance of any obligation of Mortgagor under or
in connection with this Mortgage or any of the other Loan
Documents to which Mortgagor is a party or to exercise any
right, power or remedy available after the occurrence of any
Event of Default shall waive, exhaust or impair any such
obligation or any such right, power or remedy, nor shall any
such delay or omission be construed to be a waiver of, or
acquiescence in or to, any such Event of Default.
Notwithstanding any such delay or omission, Mortgagee
thereafter shall have the right, from time to time and as
often as may be deemed advisable by Mortgagee, to insist
upon and enforce strict performance of any and all
obligations of Mortgagor under or in connection with this
Mortgage or any of the other Loan Documents to which
Mortgagor is a party. Each and every right, power and
remedy available to Mortgagee after the occurrence of any
Event of Default may be exercised from time to time and as
often as may be deemed advisable by Mortgagee.
(b) No waiver of any Event of Default shall extend to
or affect any subsequent Event of Default or any other Event
of Default then existing, nor shall any such waiver impair
any rights, powers or remedies available to Mortgagee after
the occurrence of any Event of Default. After the
occurrence of any Event of Default (whether or not the
Secured Obligations or any part thereof shall have been
declared to be immediately due and payable), Mortgagee may
accept payments of amounts owing in respect of the Secured
Obligations, and no such acceptance shall waive any such
Event of Default or result in any declaration of maturity or
in any Secured Obligations which shall have been declared to
be due and payable no longer being due and payable, unless
Mortgagee expressly and specifically agrees in writing to
any such waiver or declaration or that such Secured
Obligations are no longer due and payable.
Section 2.9. Remedies Cumulative. No right, power
or remedy now or hereafter available to Mortgagee or any
receiver pursuant to any of the Loan Documents to which
Mortgagor is a party or pursuant to any law or judicial
decision, is or shall be exclusive of any other right, power
or remedy, and each and every such right, power and remedy
shall be cumulative and concurrent and shall be in addition
to each and every other right, power and remedy now or
hereafter available pursuant to any of the Loan Documents to
which Mortgagor is a party or pursuant to any law or
judicial decision. Notwithstanding anything to the contrary
set forth in this Mortgage or in any of the other Loan
Documents to which Mortgagor is a party, no act of Mortgagee
shall be construed as an election to proceed under any one
provision of this Mortgage or of any applicable statute or
other law to the exclusion of any other such provision,
statute or other law.
Section 2.10. Discontinuance of Proceedings. If
Mortgagee shall exercise any right, power or remedy
available pursuant to this Mortgage or any of the other Loan
Documents to which Mortgagor is a party or pursuant to any
law or judicial decision, and if such exercise and any
related proceedings shall be discontinued or abandoned for
any reason then, to the extent permitted by law and at the
sole option of Mortgagee, Mortgagor and Mortgagee thereafter
shall be restored to their respective former positions and
to their respective rights, powers and remedies under the
Loan Documents to which Mortgagor is a party or otherwise
relating to the Secured Obligations, the Property or any
other security for the Secured Obligations, and all rights,
powers and remedies of Mortgagee shall continue to be
available as if no such exercise and no such proceedings had
occurred unless otherwise directed by a court of competent
jurisdiction.
Section 2.11. Additional Security. If Mortgagee at
any time holds additional security for, or any guaranty of,
all or any part of the Secured Obligations, then Mortgagee
may foreclose such security or otherwise enforce its rights,
powers and remedies with respect to, and realize upon, such
security or such guaranty (as the case may be), either
before or concurrently with or after a foreclosure or other
enforcement of this Mortgage or of any of the other Loan
Documents to which Mortgagor is a party, without being
deemed to have waived any rights, benefits, liens or
security interests evidenced by or arising under or in
connection with this Mortgage or any of the other Loan
Documents to which Mortgagor is a party and without being
deemed to have made an election thereby or to have accepted
the benefits of such guaranty or such additional security
(or the proceeds thereof) in full settlement of the Secured
Obligations and of its rights with respect thereto. No
judgment, order or decree with respect to any of the
Revolving Loan Notes, Auction Notes, Guaranty, Existing
Letter of Credit Agreements or with respect to any such
guaranty or security, wherever rendered, shall in any manner
affect the security of this Mortgage, and any deficiency or
other debt represented by any such judgment, order or decree
shall, to the extent permitted by law, be secured by this
Mortgage to the same extent that the Secured Obligations
shall have been secured by this Mortgage prior to the
rendering of such judgment, order or decree. Mortgagor, for
itself and for any and all persons who may at any time claim
through or under Mortgagor or who hereafter may otherwise
acquire any interest in or title to all or any part of the
Property or any other security for the Secured Obligations,
hereby irrevocably waives and releases, to the extent
permitted by law, all benefit of any and all laws that would
limit or prohibit the effectiveness of anything set forth in
this Section.
ARTICLE III
MISCELLANEOUS
Section 3.1. Use of Certain Terms. Each reference
in this Mortgage to Mortgagor or Mortgagee shall be deemed
also to include Lenders and the respective legal
representatives and successors and assigns of such persons.
Each reference in this Mortgage to any gender shall be
deemed also to include any other gender, and the use in this
Mortgage of the singular shall be deemed also to include the
plural and vice versa, unless the context requires
otherwise. As used in this Mortgage, the term "person"
shall mean and refer to any and all individuals, sole
proprietorships, partnerships, joint ventures, associations,
trusts, estates, business trusts, corporations (non-profit
or otherwise), financial institutions, governments (and
agencies, instrumentalities and political subdivisions
thereof), and other entities and organizations. Each
reference in this Mortgage to the fees or other compensation
of any agents, contractors, attorneys or other
representatives of Mortgagee shall be deemed also to include
expenses and disbursements, as well as fees of
paraprofessionals and similar personnel (such as paralegals
and legal assistants). The word "include(s)" means
"include(s), without limitation," and the word "including"
means "including, but not limited to."
Section 3.2. Headings. The headings of the
Articles, Sections, paragraphs and other subdivisions of
this Mortgage are for convenience of reference only, are not
to be considered a part of this Mortgage and shall not
limit, expand or otherwise affect any of the terms of this
Mortgage.
Section 3.3. Notices. All notices hereunder shall
be given in the manner, and deemed received, as provided for
in the Credit Agreement (it being understood that, for
purposes of this Section 3.3 only, Mortgagee shall be deemed
to be Agent under the Credit Agreement).
Section 3.4. Binding Effect. All covenants,
agreements conditions and other provisions of this Mortgage
shall run with the Land and shall bind and inure to the
benefit of Mortgagor, Mortgagee, and their respective
successors and assigns, whether so expressed or not. If
there is more than one Mortgagor at any time, all
undertakings of Mortgagor under this Mortgage shall be
deemed to be joint and several.
Section 3.5. Provisions Subject to Applicable Laws;
Invalid Provisions To Affect No Others. All rights, powers
and remedies provided in this Mortgage may be exercised only
to the extent that the exercise thereof does not violate any
law and are intended to be limited to the extent necessary
so that they will not render this Mortgage invalid, illegal
or unenforceable. In the event that any of the covenants,
agreements, conditions or other provisions of this Mortgage
shall be deemed invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the
remaining covenants, agreements, conditions and other
provisions of this Mortgage shall in no way be affected,
prejudiced or disturbed thereby.
Section 3.6. Changes. Neither this Mortgage nor
any covenant, agreement, condition or other provision of
this Mortgage may be changed, waived, released, discharged,
withdrawn, revoked or terminated orally, or by any action or
inaction. In order to be effective and enforceable, any
such change, waiver, release, discharge, withdrawal,
revocation or termination must be evidenced by a written
document or instrument signed by the party against which
enforcement of such change, waiver, release, discharge,
withdrawal, revocation or termination is sought, and then
shall be effective and enforceable only to the extent
specifically provided in such document or instrument. Any
agreement hereafter made by Mortgagor or Mortgagee relating
to this Mortgage or to any of the other Loan Documents to
which Mortgagor is a party shall be superior to the rights
of the holder, owner or beneficiary of any intervening lien
or encumbrance, subject to applicable law. Neither the
modification of this Mortgage or any of the other Loan
Documents to which Mortgagor is a party nor the release of
any part of the Property from the lien of this Mortgage
shall impair the priority of such lien, subject to
applicable law.
Section 3.7. No Benefit to Third Parties. Each
covenant, agreement, condition and other provision of this
Mortgage and of the other Loan Documents to which Mortgagor
is a party, is and at all times shall be deemed to be for
the exclusive benefit of Mortgagor and Mortgagee. Nothing
set forth in this Mortgage or in any of the other Loan
Documents to which Mortgagor is a party shall be deemed to
be for the benefit of any other person (including, without
limitation, the holder, owner or beneficiary of any other
lien or interest in or on all or any part of the Property or
the owner of any interest in Mortgagor).
Section 3.8. Exercise of Discretion. Each and
every decision, determination, estimate, request, consent or
similar matter to be made or given by Mortgagee from time to
time pursuant to or in connection with this Mortgage shall
be within Mortgagee's sole, absolute and unlimited
discretion, except to the extent expressly and specifically
provided to the contrary in this Mortgage or in any of the
other Loan Documents to which Mortgagor is a party.
Section 3.9. Representatives of Mortgagee. All
rights, powers and remedies of Mortgagee under this Mortgage
may be exercised by Mortgagee itself or by its officers,
employees, agents, contractors, attorneys or other
representatives.
Section 3.10. Receipt of Copy Acknowledged. Each
of Mortgagor and Mortgagee hereby acknowledges that it has
received an accurate and complete copy of this instrument as
executed by Mortgagor.
Section 3.11. Waiver of Jury Trial; Submission to
Jurisdiction; Waiver of Service and Venue. Mortgagor
reaffirms and incorporates herein the provisions of the
Credit Agreement (a) waiving jury trial and service of
process and (b) submitting to jurisdiction and venue.
Section 3.12. Estoppel Certificates. Mortgagor,
within (10) days after written request therefor by or on
behalf of Mortgagee, shall furnish to Mortgagee a written
statement, duly acknowledged, setting forth the unpaid
principal of, and to the extent of Mortgagor's knowledge,
interest, and indebtedness secured hereby and whether or not
any offsets or defense exists against such indebtedness, and
covering such other matters as may reasonably be requested.
Section 3.13. Mortgagee's Lien. This Mortgage
secures the Secured Obligations, all other amounts secured
hereby, and the payment of any and all commissions, service
charges, liquidated damages, expenses and advances due to or
incurred by Mortgagee in accordance with the terms and
conditions of the Credit Agreement, the Existing Letter of
Credit Agreements, the Guaranty and the other Transaction
Documents, in connection with the Property or Secured
Obligations.
Section 3.14. Required Notices. Mortgagor shall
notify Mortgagee promptly of the receipt of any notice of
default from any tenant or subtenant leasing all or any
portion of the Property.
SECTION 3.15. Governing Law. THE GRANT OF THIS
MORTGAGE, THE CREATION OF MORTGAGEE'S RIGHTS AND INTERESTS
HEREUNDER, THE PUBLICATION AND PERFECTION OF THE LIEN,
SECURITY INTEREST AND OTHER RIGHTS AND INTERESTS GRANTED OR
OTHERWISE ARISING HEREUNDER AND THE EXERCISE OF MORTGAGEE'S
RIGHTS, POWERS AND REMEDIES RELATING TO THE PROPERTY
(WHETHER SPECIFICALLY PROVIDED IN THIS MORTGAGE OR PROVIDED
BY APPLICABLE LAW) SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE IN WHICH THE
PROPERTY IS LOCATED WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. OTHERWISE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THIS MORTGAGE AND THE LOAN DOCUMENTS TO
WHICH MORTGAGOR IS A PARTY (INCLUDING, WITHOUT LIMITATION,
TERMS RELATING TO USURY CONSIDERATIONS AND TERMS RELATING TO
MORTGAGOR'S LIABILITY FOR ANY DEFICIENCY FOLLOWING ANY
FORECLOSURE OF THIS MORTGAGE OR ANY OTHER TRANSFER OF ALL OR
ANY PART OF THE PROPERTY IN EXTINGUISHMENT OF ANY PART OF
THE SECURED OBLIGATIONS) SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Section 3.16. Site Visits, Observation and Testing.
Mortgagee and its agents and representatives shall have the
right to enter and visit the Property at any reasonable time
during normal business hours for the purposes of observing
it, performing appraisals, taking and removing soil or
groundwater samples, and conducting tests on any part of it.
Mortgagee is under no duty, however, to visit or observe the
Property or to conduct tests, and any such acts by Mortgagee
shall be solely for the purposes of protecting Mortgagee's
security and preserving Mortgagee's and Trustee's rights
under the Loan Documents. In no event shall any site visit,
observation or testing by Mortgagee be a representation that
Hazardous Materials are or are not present in, on, or under
the Land or Improvements, or that any construction is free
from defective materials or workmanship. Neither Mortgagor
nor any other party is entitled to rely on any site visit,
observation or testing by Mortgagee. Mortgagee owes no duty
of care to protect Mortgagor or any other party against, or
to inform Mortgagor or any other party of, any Hazardous
Materials, any negligent or defective design or construction
of the Improvements, or any other adverse condition
affecting the Property. Mortgagee shall disclose to
Mortgagor, at Mortgagor's request, any written report or
findings prepared by any third party (the cost of which is
borne by Mortgagor) as a result of, or in connection with,
any site visit, observation or testing made at the request
of Mortgagee, unless such third party reasonably objects to
such disclosure. Prior to entering the Property under this
Section, Mortgagee shall give Mortgagor reasonable notice of
its intent to enter. Mortgagee shall exercise reasonable
efforts to avoid interfering with use of the Property in
connection with the activities permitted under this Section.
Section 3.17. Credit Bids. At any foreclosure
sale, any person, including Mortgagor or Mortgagee, may bid
for and acquire the Property or any part of it to the extent
permitted by then applicable law. Subject to the rights of
the Indenture Trustee under the Indenture, instead of paying
cash for that property, Mortgagee may settle for the
purchase price by crediting all or any portion of
outstanding sums constituting Secured Obligations,
including, without limitation, Secured Obligations
attributable to the expense of sale, costs of any action and
any other sums for which Mortgagor is obligated to pay or
reimburse Mortgagee against the sale price of the Property
or any portion thereof.
Section 3.18. No Waiver or Cure. Each waiver by
Mortgagee must be in writing, and no waiver shall be
construed as a continuing waiver. No waiver shall be
implied from any delay to failure by Mortgagee to take
action on account of any default of Mortgagor. Consent by
Mortgagee to any act or omission by Mortgagor shall not be
construed as a consent to any other or subsequent act or
omission or to waive the requirement for Mortgagee's consent
to be obtained in any future or other instance. No election
of remedies or waiver of the right to a deficiency judgment
shall be implied from any language contained in this
Mortgage or any of the Loan Documents.
Section 3.19. Partial Release Conditions. (a) In
the event Mortgagor requests that Mortgagee release a
portion of the Property (the "Release Parcel") from the lien
of this Mortgage, Mortgagee shall approve such request
provided Mortgagor has satisfied the requirements under the
Indenture to release a portion of the Property from the lien
of such Indenture and the Indenture Trustee has released the
lien of the Indenture with respect to such Release Parcel,
provided, however, if the First Mortgage Bonds have been
paid in full or an Event of Default has occurred and is
continuing, then the Release Parcel shall not be deemed to
be released hereunder. In addition to the foregoing, no
Release Parcel shall be released if (i) such Release Parcel
has not been formally designated as a distinct tax lot
separate from the remainder of the Property or (ii) such
release materially restricts Mortgagee's rights of access or
use of the remaining Property, as determined in the
reasonable discretion of Mortgagee.
(b) Upon the satisfaction of the conditions set forth
in subparagraph (a) above for the release of the Release
Parcel, the security interests and liens of Mortgagee under
this Mortgage and the other Loan Documents shall be released
from the Release Parcel, and Mortgagee will execute and
deliver any agreements reasonably requested by Mortgagor to
release and terminate the lien of this Mortgage as to the
Release Parcel; provided, however, that such release and
termination shall be without recourse to Mortgagee and made
without any representation or warranty. Upon the release
and termination of Mortgagee's security interests and liens
under this Mortgage and the other Loan Documents relating to
the Release Parcel, all references in this Mortgage and the
other Loan Documents relating to the Release Parcel shall be
deemed deleted, except as otherwise provided herein with
respect to indemnities or except as otherwise provided in
any of the other Loan Documents.
ARTICLE IV.
ADDITIONAL COLLATERAL
Mortgagor acknowledges and agrees that the Secured
Obligations are secured by the Property and various other
collateral including, without limitation, at the time of
execution of this Mortgage certain personal property of
Mortgagor and other parties described in the Loan Documents
to which Mortgagor is a party. Mortgagor specifically
acknowledges and agrees that the Property, in and of itself,
if foreclosed or realized upon may not be sufficient to
satisfy the outstanding amount of the Secured Obligations.
Accordingly, Mortgagor acknowledges that it is in
Mortgagor's contemplation that the other collateral pledged
to secure the Secured Obligations may be pursued by
Mortgagee in separate proceedings in the various states and
counties where such collateral may be located and
additionally that Mortgagor and other parties liable for
payment of the Secured Obligations will remain liable for
any deficiency judgments in addition to any amounts
Mortgagee may realize on sales of other property or any
other collateral given as security for the Secured
Obligations. Specifically, and without limitation of the
foregoing, it is agreed that it is the intent of the parties
hereto that in the event of a foreclosure of this Mortgage,
that the Revolving Loan Notes, Auction Notes and letters of
credit evidencing the Secured Obligations shall not be
deemed merged into any judgment of foreclosure, but shall
rather remain outstanding. It is the further intent and
understanding of the parties that Mortgagee, following an
Event of Default, may pursue all of its collateral with the
Revolving Loan Notes, Auction Notes and letters of credit
remaining outstanding and in full force and effect
notwithstanding any judgment of foreclosure or any other
judgment which Mortgagee may obtain.
Mortgagee shall be entitled to enforce payment and
performance of the Secured Obligations and to exercise all
rights and powers under this Mortgage or under any Loan
Document to which Mortgagor is a party or other agreement or
any laws now or hereafter in force, notwithstanding that
some or all of the Secured Obligations may now or hereafter
be otherwise secured, whether by mortgage, deed of trust,
pledge, lien, assignment or otherwise. Neither the
acceptance of this Mortgage nor its enforcement, whether by
court action or pursuant to power of sale, shall prejudice
or in any manner affect Mortgagee's right to realize upon or
enforce any other security now or hereafter held by
Mortgagee, it being agreed that Mortgagee shall be entitled
to enforce this Mortgage and any other security now or
hereafter held by Mortgagee in such order and manner as it
may in its absolute discretion determine. No right or
remedy herein conferred upon or reserved to Mortgagee is
intended to be exclusive of any other remedy herein or by
law provided or permitted, but each shall be cumulative and
shall be in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity
or by statute. Every power or remedy given by any of the
Loan Documents to which Mortgagor is a party, to Mortgagee,
or to which Mortgagee may be otherwise entitled, may be
exercised concurrently or independently, from time to time
and as often as may be deemed expedient by Mortgagee, and
Mortgagee may pursue inconsistent remedies.
Mortgagor acknowledges and agrees that the Property and
any additional Property which may from time to time be
pledged as security for the Secured Obligations may be
located in more than one state and therefor Mortgagor waives
and relinquishes any and all rights it may have, whether at
law or equity, to require Mortgagee to proceed to enforce or
exercise any right, powers and remedies it may have under
the Loan Documents to which Mortgagor is a party, in any
particular manner, in any particular order, or in any
particular State or other jurisdiction.
Furthermore, Mortgagor acknowledges and agrees that
Mortgagee shall be allowed to enforce payment and
performance of the Secured Obligations and to exercise all
rights and powers provided under this Mortgage and the other
Loan Documents to which Mortgagor is a party, or any of
them, or under any provision of law, by one or more
proceedings, whether contemporaneous, consecutive or both in
any one or more States in which the security may be located.
Neither the acceptance of this Mortgage, or of any other
Loan Document to which Mortgagor is a party, nor its
enforcement in one State, whether by court action, power of
sale, or otherwise, shall prejudice or in any way limit or
preclude enforcement of the Loan Documents to which
Mortgagor is a party, or any of them, through one or more
additional proceedings, in that state or in any other State.
Mortgagor further agrees that any particular
proceeding, including without limitation, foreclosure
through court action (in a state or federal court) or power
of sale, may be brought and prosecuted in the local or
federal courts of any one or more States as to all or any
part of the Property or other collateral pledged to secure
the Secured Obligations, wherever located, without regard to
the fact that any one or more prior or contemporaneous
proceedings have been situated elsewhere with respect to the
same or any other part of the Property and such other
collateral.
Notwithstanding anything contained herein to the
contrary, Mortgagee shall be under no duty to Mortgagor or
others, including, without limitation, the holder of any
junior, senior or subordinate mortgage on the Property or
any part thereof or on any other security held by Mortgagee,
to exercise or exhaust all or any of the rights, powers and
remedies available to Mortgagee.
ARTICLE V.
CERTAIN MATTERS RELATING TO THE PROPERTY
LOCATED IN THE STATE OF CONNECTICUT
Notwithstanding any provision hereof or of any other
Loan Document to the contrary, with respect to any Property
now or hereafter located in the State of Connecticut and
encumbered by this Mortgage, the following provisions shall
apply:
Section 5.1. Open-End Mortgage. This is an "open-
end mortgage" as provided for by Connecticut General
Statutes Section 49-2(c), and Mortgagee shall have all the
rights, powers, privileges and protections afforded to the
holder of an open-end mortgage by such statute or any other
applicable law. For purposes of such statute, the full
principal amount of the loan and letters of credit
authorized is $66,300,000. It is understood and agreed that
Mortgagee may, but shall not be obligated to, at any time
and from time to time, make future advances secured by this
Mortgage. Except for advances for the payment of taxes,
assessments, insurance premiums, repairs, alterations,
improvements or costs incurred for the protection of the
Property or otherwise permitted elsewhere by this Mortgage
or under applicable law, all future advances shall be
evidenced as provided in the Credit Agreement. Nothing set
forth in this Section 5.1 shall affect the validity or
enforceability of any obligation of Mortgagor to Mortgagee
under this Mortgage or any other agreement between Mortgagee
and Mortgagor that would be valid and enforceable without
the provisions of this Section 5.1.
Section 5.2. Open-End Mortgage Securing Guaranty.
In addition to the provisions of Section 5.1, and not in
limitation thereof, this is an "open-end mortgage" as
provided for by Connecticut General Statutes Section 49-4b,
and Mortgagee shall have all the rights, powers, privileges
and protections afforded to the holder of an open-end
mortgage by such statute or any other applicable law. This
Mortgage is given by Mortgagor as security for, among other
things, its obligations under the Guaranty, including its
obligation to repay advances made pursuant to that certain
letter of credit issued pursuant to the terms of the East
Barnet Letter of Credit Agreement. Nothing set forth in
this Section 5.2 shall affect the validity or enforceability
of any obligation of Mortgagor to Mortgagee under this
Mortgage or any other agreement between Mortgagee and
Mortgagor that would be valid and enforceable without the
provisions of this Section 5.2.
Section 5.3. Prejudgment Remedy Waiver. MORTGAGOR
ACKNOWLEDGES THAT THE LOAN IS A "COMMERCIAL TRANSACTION" AS
DEFINED BY CHAPTER 903a OF THE CONNECTICUT GENERAL STATUTES
AND, PURSUANT TO SECTION 52-278f OF SAID CONNECTICUT GENERAL
STATUTES, WAIVES ANY RIGHT TO NOTICE AND HEARING UNDER
SECTIONS 52-278a THROUGH 52-278g OF THE CONNECTICUT GENERAL
STATUTES, AS NOW OR HEREAFTER AMENDED, OR UNDER ANY OTHER
STATE OR FEDERAL LAW WITH RESPECT TO ANY AND ALL PREJUDGMENT
REMEDIES MORTGAGEE MAY EMPLOY TO ENFORCE ITS RIGHTS AND
REMEDIES IN CONNECTION WITH THE REVOLVING LOAN NOTES, THIS
MORTGAGE OR ANY OTHER LOAN DOCUMENTS SECURING THE REVOLVING
LOAN NOTES. MORTGAGOR AUTHORIZES MORTGAGEE'S ATTORNEY TO
ISSUE A WRIT FOR A PREJUDGMENT REMEDY WITHOUT SECURING A
COURT ORDER. MORTGAGOR ACKNOWLEDGES IT MAKES THIS WAIVER
KNOWINGLY, VOLUNTARILY AND ONLY AFTER EXTENSIVE
CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH ITS
COUNSEL.
Section 5.4. UCC. Notwithstanding anything to the
contrary contained herein, the references to the Code in
this Article V shall be deemed to be references to the
Uniform Commercial Code in Connecticut General Statutes
Section 42a-1-101, et seq.
ARTICLE VI.
CERTAIN MATTERS RELATING TO THE PROPERTY
LOCATED IN THE STATE OF MAINE
Notwithstanding any provision hereof or of any other
Loan Documents to the contrary, with respect to any Property
now or hereafter located in the State of Maine and
encumbered by this Mortgage, the following provisions shall
apply:
Section 6.1. Statutory Power of Sale. In addition
to the remedies set forth herein, Mortgagee shall have, to
the fullest extent now or hereafter available, the Statutory
Power of Sale pursuant to the applicable provisions of
Titles 14 and 33 of the Maine Revised Statutes of 1964, as
the same have been and shall be amended. Mortgagor
acknowledges that this Mortgage is given to secure a loan
for business and commercial purposes and not personal,
family or household purposes. A sale conducted pursuant to
the Statutory Power of Sale may occur at or near the
Property or, in Mortgagee's discretion, at any existing
office of Mortgagee or its attorney located in the same
county as the Property.
Section 6.2. Future Advances. This Mortgage is an
open-end mortgage which secures existing indebtedness,
"future advances," "protective advances", and "contingent
obligations" as such terms are defined in 33 M.R.S.A. 505,
as the same may be amended, and all of such advances, and
obligations shall constitute a part of the Secured
Obligations secured hereby. The maximum aggregate principal
amount of the Secured Obligations secured by this Mortgage,
including future advances, but excluding protective
advances, shall not at any time exceed the total amount of
$66,300,000. The future advances secured hereby shall be
made to or for the account of Mortgagor and may be made
under the Revolving Loan Notes, Auction Notes or any of the
other Loan Documents, as the same may be amended, or may be
made pursuant to promissory notes, lines of credit
agreements or other instruments evidencing such future
advances which may be hereafter executed and delivered by
Mortgagor to Mortgagee. In the event that any notice
described in subsection 5(A) or (B) of 33 M.R.S.A. 505 (or
any similar provision) is recorded or is received by
Mortgagee, any commitment, agreement, or obligation to make
future advances to or for the benefit of Mortgagor shall
immediately cease and, at Mortgagee's option, any such
notice shall constitute an Event of Default hereunder.
Section 6.3. Sealed Instrument. This Mortgage is
intended to take effect as a sealed instrument.
Section 6.4. No Oral Modifications. Mortgagor
confirms and acknowledges its understanding that, pursuant
to 10 M.R.S.A. 1146(2), to the extent applicable, no
promise, contract, or agreement to lend money, extend
credit, forbear from collection of a debt or make any other
accommodation for the repayment of a debt for more than
$250,000 may be enforced in court against Mortgagee unless
the promise, contract or agreement is in writing and signed
by Mortgagee.
Section 6.5. UCC. Notwithstanding anything to
the contrary contained herein, the references to the Code in
this Article VI shall be deemed to be references to the
Uniform Commercial Code in Maine Revised Statutes Title 11,
Section 1-101, et seq.
ARTICLE VII.
CERTAIN MATTERS RELATING TO THE PROPERTY
LOCATED IN THE STATE OF NEW HAMPSHIRE
Notwithstanding any provision hereof or of any other
Loan Document to the contrary, with respect to any Property
now or hereafter located in the State of New Hampshire and
encumbered by this Mortgage, the following provisions shall
apply:
Section 7.1. Statutory Power of Sale. Upon the
occurrence and during the continuance of any Event of
Default, Mortgagee may, in addition to any other rights or
remedies available to it in this Mortgage, at law or in
equity, take such action, without notice or demand, as it
deems advisable to protect and enforce its rights against
Mortgagor and in and to the Property or any one or more of
them, including, but not limited to, the following action,
which may be pursued singly, concurrently or otherwise, at
such time and in such order as Mortgagee may determine, in
its sole discretion, without impairing or otherwise
affecting any other rights and remedies of Mortgagee
hereunder, at law or in equity: sell the Property or any
part thereof and any or all estate, claim, demand, right,
title and interest of Mortgagor therein and rights of
redemption thereof, pursuant to the STATUTORY POWER OF SALE
in some place in any municipality in which any of the
Property is located, at one or more sales, in whole or in
parcels, in any order or manner, at such time and place,
upon such terms and after such notice thereof as may be
required or permitted by law, at the discretion of
Mortgagee, and in the event of a sale, by foreclosure or
otherwise, of less than all of the Property, this Mortgage
shall continue as a lien on the remaining portion of the
Property.
Section 7.2. UCC. Notwithstanding anything to
the contrary contained herein, the references to the Code in
this Article VII shall be deemed to be references to the
Uniform Commercial Code in New Hampshire Revised Statutes
Annotated Section 382-A:1-101, et seq.
ARTICLE VIII.
CERTAIN MATTERS RELATING TO THE PROPERTY
LOCATED IN THE STATE OF NEW YORK
Notwithstanding any provision hereof or of any other
Loan Document to the contrary, with respect to any Property
now or hereafter located in the State of New York and
encumbered by this Mortgage, the following provisions shall
apply:
Section 8.1. Section 254 of the RPL. In the event
of any conflict, inconsistency or ambiguity between the
provisions of the Loan Documents and the provisions of
subsection 4 of Section 254 of the Real Property Law of New
York, the provisions of the Loan Documents shall control.
Section 8.2. Section 291-f of the RPL. In addition
to any other right or remedy contained herein or in any
other Loan Document, Mortgagee shall have all of the rights
against lessees of the Property or any part thereof as are
set forth in Section 291-f of the Real Property Law of New
York.
Section 8.3. Trust Fund. This instrument is
subject to the Trust Fund provisions of Section 13 of the
Lien Law of New York.
Section 8.4. Commercial Property. Mortgagor
represents and warrants that this Mortgage does not encumber
real property principally improved or to be improved by one
or more structures containing in the aggregate not more than
six (6) residential dwelling units having their own separate
cooking facilities.
Section 8.5. Transfer Tax.
(a) Mortgagor covenants and agrees that, in the event
of a sale of the Property or other Transfer, it will duly
complete, execute and deliver to Mortgagee contemporaneously
with the submission to the applicable taxing authority or
recording officer, all forms and supporting documentation
required by such taxing authority or recording officer to
estimate and fix any and all applicable state and local real
estate transfer taxes, including, without limitation, any
real estate transfer taxes payable under Article 31 of the
New York State Tax Law or under Title 11, Chapter 21 of the
Administrative Code of the City of New York, if applicable,
or any successor provisions thereto (collectively, "Transfer
Taxes") by reason of such sale or other Transfer or
recording of the deed evidencing such sale or other
Transfer. This Section 8.5(b) shall apply only if this
Mortgage remains outstanding after any such sale or
Transfer.
(b) Mortgagor shall pay all Transfer Taxes that may
hereafter become due and payable with respect to any
Transfer, and in default thereof Mortgagee may pay the same
and the amount of such payment shall be added to the Secured
Obligations and, unless incurred in connection with a
foreclosure of this Mortgage, be secured by this Mortgage.
The provisions of this Section 8.5 shall survive any
Transfer and the delivery of the deed in connection with any
Transfer.
Section 8.6. Maximum Principal Amount.
NOTWITHSTANDING ANY PROVISION SET FORTH HEREIN TO THE
CONTRARY, THE MAXIMUM AMOUNT OF PRINCIPAL INDEBTEDNESS
SECURED BY THIS MORTGAGE AT EXECUTION, OR WHICH UNDER ANY
CONTINGENCY MAY BECOME SECURED HEREBY AT ANY TIME HEREAFTER,
IS U.S. $66,300,000 PLUS ALL INTEREST PAYABLE UNDER THE
REVOLVING CREDIT NOTE AND ALL AMOUNTS EXPENDED BY MORTGAGEE
AFTER DEFAULT BY MORTGAGOR (A) FOR THE PAYMENT OF TAXES,
CHARGES OR ASSESSMENTS WHICH MAY BE IMPOSED BY LEGAL
REQUIREMENTS UPON THE PROPERTY; (B) TO MAINTAIN THE
INSURANCE REQUIRED UNDER THIS MORTGAGE; (C) FOR ANY EXPENSES
INCURRED IN MAINTAINING THE PROPERTY AND UPHOLDING THE LIEN
OF THIS MORTGAGE, INCLUDING, BUT NOT LIMITED TO, THE EXPENSE
OF ANY LITIGATION TO PROSECUTE OR DEFEND THE RIGHTS AND LIEN
CREATED BY THIS MORTGAGE, AND (D) FOR ANY AMOUNT, COST OR
CHARGE TO WHICH MORTGAGEE BECOMES SUBROGATED, UPON PAYMENT,
WHETHER UNDER RECOGNIZED PRINCIPLES OF LAW OR EQUITY, OR
UNDER EXPRESS STATUTORY AUTHORITY.
Section 8.7. Covenants in Addition to RPL. All
covenants hereof shall be construed as affording to
Mortgagee rights in addition to and not exclusive of the
rights conferred under the provisions of Sections 254, 271,
272 and 291-f of the Real Property Law of the State of New
York or any other applicable Legal Requirement.
ARTICLE IX.
CERTAIN MATTERS RELATING TO THE PROPERTY
LOCATED IN THE STATE OF VERMONT
Notwithstanding any provision hereof or of any other
Loan Documents to the contrary, with respect to any Property
now or hereafter located in the state of Vermont and
encumbered by this Mortgage, the following provisions shall
apply:
Section 9.1. Non-Judicial Power of Sale. Mortgagor
hereby grants to Mortgagee a power of sale and, accordingly,
Mortgagee shall have all rights and powers granted by
Vermont law to the holder of a mortgage containing a power
of sale, including, without limitation, the right, to the
extent permitted by Vermont law, to foreclose Mortgagor's
equity of redemption upon a default under this mortgage, by
exercising the power of sale without first commencing a
foreclosure action or obtaining a foreclosure decree, and to
give such notices and to do all other acts, including the
giving of a foreclosure deed upon completion of the
foreclosure sale, as permitted or required by Vermont law to
foreclose a mortgage without judicial action.
Section 9.2. Limitation on Attorneys' Fees in
Foreclosure. Mortgagor agrees that Mortgagee's award of
reasonable attorney's fees resulting from an enforcement,
foreclosure, collection, or other proceeding in connection
with Mortgagee's rights or remedies, or otherwise in
connection with this loan, may exceed two percent of the
total principal, interest, and costs due.
Section 9.3. Future Advances and Subsequent
Indebtedness. In addition to all other indebtedness and
obligations described in this Mortgage, this Mortgage shall
secure to Mortgagee the prompt payment and performance of
any and all obligations of Mortgagor to Mortgagee under or
in connection with the Transaction Documents, whether direct
or indirect, absolute or contingent, primary or secondary,
due or to become due, now existing or hereafter arising or
acquired.
Section 9.4. UCC. Notwithstanding anything to
the contrary contained herein, the references to the Code in
this Article IX shall be deemed to be references to the
Uniform Commercial Code in Vermont Statutes Annotated Title
9A, Section 1-101, et seq.
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage
to be executed as of the day and year first above written.
MORTGAGOR:
CENTRAL VERMONT PUBLIC SERVICE CORPORATION, a Vermont
corporation
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Vice President, Chief
Financial Officer, Treasurer, and agent
duly authorized
Signed, sealed and delivered on behalf
of Central Vermont Public Service
Corporation in the presence of:
/s/ Xxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxxxx
/s/ Xxxxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxxx
Witnesses:
Attest:
/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
Assistant Corporate Secretary
STATE OF VERMONT )
) ss.
COUNTY OF )
On the 6th day of October, in the year 1998, before me
personally came Xxxxxxx X. Xxxxx, to me known, who, being by
me duly sworn, did depose and say that he resides at R.R.1,
Box 3535, Xxxxxx Xxxxx Road, in Rutland, Vermont; that he is
the Vice President, Chief Financial Officer and Treasurer,
and agent duly authorized, of the CENTRAL VERMONT PUBLIC
SERVICE CORPORATION, a Vermont corporation and the
corporation described in and which executed the above
instrument; that he signed his name thereto by authority of
the board of directors of said corporation; and that he
acknowledged the same to be his free act and deed and the
free act and deed of said corporation.
/s/ Xxxxxx X. X'Xxxxxx
Xxxxxx X. X'Xxxxxx, Notary Public
My commission expires February 10, 1999
EXHIBIT A: DESCRIPTION OF PROPERTIES
All land and premises, rights, privileges and easements
of the Mortgagor, Central Vermont Public Service
Corporation, as conveyed or puported to be conveyed in the
deeds and records thereof more particularly described in the
Indenture of Mortgage, between the Mortgagor and The State
Street Bank and Trust Company, Trustee and successor trustee
to The First National Bank of Boston, successor trustee to
Old Colony Bank and Trust Company, as supplemented, and as
recorded in the land records as provided in the schedule of
recording information set forth below, which deeds and the
records thereof are hereby incorporated herein by reference.
Also, all property of every kind whatsoever, including
land and premises, rights, privileges, easements,
transmission lines, substations and distribution lines, in
the following towns:
IN NEW LONDON COUNTY, STATE OF CONNECTICUT:
Waterford
IN HARTFORD COUNTY, STATE OF CONNECTICUT:
Berlin
IN CUMBERLAND COUNTY, STATE OF MAINE:
Yarmouth
IN XXXXXXXX COUNTY, STATE OF NEW HAMPSHIRE:
Charleston, Cornish, Plainfield, Claremont,
Newport, Unity
IN CHESHIRE COUNTY, STATE OF NEW HAMPSHIRE:
Chesterfield, Hinsdale
IN GRAFTON COUNTY, STATE OF NEW HAMPSHIRE:
Bath, Lyman, Orford, Haverhill, Lyme,
Piermont
IN WASHINGTON COUNTY, STATE OF NEW YORK:
Granville, Hampton
IN RENSSELAER COUNTY, STATE OF NEW YORK:
Hoosick
IN ADDISON COUNTY, STATE OF VERMONT:
Addison, Leicester, Ripton, Bridport,
Lincoln, Salisbury, Bristol, Middlebury,
Shoreham, Cornwall, Monkton, Starksboro,
Ferrisburg, New Haven, Vergennes, Goshen,
Orwell, Weybridge, Granville, Panton, Whiting,
Xxxxxxx
IN BENNINGTON COUNTY, STATE OF VERMONT:
Arlington, Manchester, Searsburg, Bennington,
Peru, Shaftsbury, Dorset, Pownal, Sunderland,
Glastenbury, Rupert, Winhall, Landgrove, Sandgate,
Woodford
IN CALEDONIA COUNTY, STATE OF VERMONT:
Xxxxxx, Xxxxxx, Xxxxxx, Danville, Ryegate,
Waterford, Xxxxx, St. Johnsbury, Xxxxxxxx
IN XXXXXXXXXX COUNTY, STATE OF VERMONT:
Buels Xxxx, Xxxxx, Xxxxxx, Burlington,
Huntington, Underhill, Colchester, Jericho,
Westford
IN ESSEX COUNTY, STATE OF VERMONT:
Concord, Guildhall, Victory, Granby, Lunenburg
IN FRANKLIN COUNTY, STATE OF VERMONT:
Bakersfield, Fletcher, Richford, Berkshire,
Xxxxxxxx, Xxxxxxx, Enosburg, Georgia, St. Albans City,
Fairfax, Highgate, St. Albans Town, Fairfield,
Montgomery, Swanton
IN LAMOILLE COUNTY, STATE OF VERMONT:
Belvidere, Eden, Johnson, Cambridge, Hyde Park
IN ORANGE COUNTY, STATE OF VERMONT:
Bradford, Fairlee, Thetford, Braintree, Newbury,
Tunbridge, Brookfield, Xxxxxxxx, Vershire, Chelsea,
Strafford, West Fairlee
IN ORLEANS COUNTY, STATE OF VERMONT:
Xxxxxx, Irasburg
IN RUTLAND COUNTY, STATE OF VERMONT:
Benson, Middletown Springs, Xxxxxxxxx, Xxxxxxx,
Mt. Xxxxx, Shrewsbury, Castleton, Mt. Xxxxx, Sudbury,
Chittenden, Pawlet, Tinmouth, Clarendon, Pittsfield,
Wallingford, Danby, Pittsford, Wells, Fair Haven,
Poultney, West Haven, Hubbardton, Xxxxxxx, West Xxxxxxx,
Xxx, Rutland City, Mendon, Rutland Town
IN WASHINGTON COUNTY, STATE OF VERMONT:
Northfield, Roxbury
IN XXXXXXX COUNTY, STATE OF VERMONT:
Athens, Guilford, Stratton, Brattleboro, Jamaica,
Townshend, Brookline, Londonderry, Vernon, Dover,
Marlboro, Wardsboro, Dummerston, Newfane, Westminster,
Grafton, Rockingham, Xxxxxxx
IN WINDSOR COUNTY, STATE OF VERMONT:
Andover, Xxxxxxxx, Xxxxxx, Baltimore, Ludlow, Springfield,
Barnard, Norwich, Stockbridge, Bethel, Plymouth,
Weathersfield, Bridgewater, Pomfret, Weston, Cavendish,
Reading, West Xxxxxxx, Xxxxxxx, Rochester, Windsor,
Hartford, Royalton, Woodstock
Exhibit A includes the schedule of recording information
which follows.
TABLE OF CONTENTS
Section Page
ARTICLE I.COVENANTS OF MORTGAGOR .6
1.1. Payment and Performance of Secured Obligations. . . .6
1.2. Incorporation of Documents. . . . . . . . . . . . . .6
1.3. General Representations, Covenants and Warranties . .7
1.4. Additional Covenants, Representations and Warranties Regarding
Environmental Matters . . . . . . . . . . . . . . . .8
1.5. Use of Property . . . . . . . . . . . . . . . . . . .9
1.6. Taxes, Assessments and Other Charges. . . . . . . . 10
1.7. Defense of Title and Litigation . . . . . . . . . . 10
1.8. Zoning and Title Matters. . . . . . . . . . . . . . 11
1.9. Insurance and Risk of Loss. . . . . . . . . . . . . 11
1.10. Effect of Changes in Laws Regarding Taxation. . . 12
1.11. Changes to Mortgage or Related Documents. . . . . 12
1.12. Eminent Domain and Casualty . . . . . . . . . . . 12
1.13. Mortgagee's Performance of Defaulted Acts; Subrogation13
1.14. Ownership of Property and Mortgagor's Interest. . 13
1.15. Assignment of Leases and Rents. . . . . . . . . . 14
1.16. Security Agreement and Financing Statements . . . 15
1.17. After Acquired Property . . . . . . . . . . . . . 16
1.18. Collateral Protection . . . . . . . . . . . . . . 16
ARTICLE II.
DEFAULTS AND REMEDIES. . . . . . . . . 17
2.1. Event of Default. . . . . . . . . . . . . . . . . . 17
2.2. Mortgagee's Power of Enforcement. . . . . . . . . . 17
2.3. Mortgagee's Right To Enter and Take Possession. . . 18
2.4. Appointment of Receiver . . . . . . . . . . . . . . 21
2.5. Waiver of Certain Rights. . . . . . . . . . . . . . 21
2.6. Leases. . . . . . . . . . . . . . . . . . . . . . . 22
2.7. Suits To Protect Property . . . . . . . . . . . . . 22
2.8. No Waiver . . . . . . . . . . . . . . . . . . . . . 22
2.9. Remedies Cumulative . . . . . . . . . . . . . . . . 23
2.10. Discontinuance of Proceedings . . . . . . . . . . 23
2.11. Additional Security . . . . . . . . . . . . . . . 23
ARTICLE III.MISCELLANEOUS . . . . 24
3.1. Use of Certain Terms. . . . . . . . . . . . . . . . 24
3.2. Headings. . . . . . . . . . . . . . . . . . . . . . 24
3.3. Notices . . . . . . . . . . . . . . . . . . . . . . 24
3.4. Binding Effect. . . . . . . . . . . . . . . . . . . 25
3.5. Provisions Subject to Applicable Laws; Invalid Provisions To
Affect No Others. . . . . . . . . . . . . . . . . . 25
3.6. Changes . . . . . . . . . . . . . . . . . . . . . . 25
3.7. No Benefit to Third Parties . . . . . . . . . . . . 25
3.8. Exercise of Discretion. . . . . . . . . . . . . . . 25
3.9. Representatives of Mortgagee. . . . . . . . . . . . 26
3.10. Receipt of Copy Acknowledged. . . . . . . . . . . 26
3.11. Waiver of Jury Trial; Submission to Jurisdiction; Waiver of Service
and Venue . . . . . . . . . . . . . . . . . . . . . 26
3.12. Estoppel Certificates . . . . . . . . . . . . . . 26
3.13. Mortgagee's Lien. . . . . . . . . . . . . . . . . 26
3.14. Required Notices. . . . . . . . . . . . . . . . . 26
3.15. Governing Law . . . . . . . . . . . . . . . . . . 26
3.16. Site Visits, Observation and Testing. . . . . . . 27
3.17. Credit Bids . . . . . . . . . . . . . . . . . . . 27
3.18. No Waiver or Cure . . . . . . . . . . . . . . . . 27
3.19. Partial Release Conditions. . . . . . . . . . . . 27
ARTICLE IV.ADDITIONAL COLLATERAL. 28
ARTICLE V.CERTAIN MATTERS RELATING TO THE
PROPERTYLOCATED IN THE STATE OF CONNECTICUT30
5.1. Open-End Mortgage . . . . . . . . . . . . . . . . . 30
5.2. Open-End Mortgage Securing Guaranty . . . . . . . . 30
5.3. Prejudgment Remedy Waiver . . . . . . . . . . . . . 30
5.4. UCC . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE VI.CERTAIN MATTERS RELATING TO THE
PROPERTYLOCATED IN THE STATE OF MAINE31
6.1. Statutory Power of Sale . . . . . . . . . . . . . . 31
6.2. Future Advances . . . . . . . . . . . . . . . . . . 31
6.3. Sealed Instrument . . . . . . . . . . . . . . . . . 32
6.4. No Oral Modifications . . . . . . . . . . . . . . . 32
6.5. UCC . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE VII.CERTAIN MATTERS RELATING TO THE
PROPERTYLOCATED IN THE STATE OF NEW HAMPSHIRE32
7.1. Statutory Power of Sale . . . . . . . . . . . . . . 32
7.2. UCC . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE VIII.CERTAIN MATTERS RELATING TO THE
PROPERTYLOCATED IN THE STATE OF NEW YORK33
8.1. Section 254 of the RPL. . . . . . . . . . . . . . . 33
8.2. Section 291-f of the RPL. . . . . . . . . . . . . . 33
8.3. Trust Fund. . . . . . . . . . . . . . . . . . . . . 33
8.4. Commercial Property . . . . . . . . . . . . . . . . 33
8.5. Transfer Tax. . . . . . . . . . . . . . . . . . . . 33
8.6. Maximum Principal Amount. . . . . . . . . . . . . . 33
8.7. Covenants in Addition to RPL. . . . . . . . . . . . 34
ARTICLE IX.CERTAIN MATTERS RELATING TO THE
PROPERTYLOCATED IN THE STATE OF VERMONT34
9.1. Non-Judicial Power of Sale. . . . . . . . . . . . . 34
9.2. Limitation on Attorneys' Fees in Foreclosure. . . . 34
9.3. Future Advances and Subsequent Indebtedness . . . . 34
9.4. UCC . . . . . . . . . . . . . . . . . . . . . . . . 35
LIST OF EXHIBITS
Exhibit A - Description of Property
