This Instrument Prepared by
and When Recorded Return to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
FORM OF
AMENDED AND RESTATED MASTER MORTGAGE,
DEED TO SECURE DEBT
and
DEED OF TRUST
with
UNIFORM COMMERCIAL CODE SECURITY AGREEMENT,
and with
ASSIGNMENT OF LEASES, RENTS AND PROFITS
among
AMERICOLD CORPORATION
_______________, as Trustee
with respect to the Tennessee Premises
_______________, as Trustee
with respect to the North Carolina Premises,
_______________, as Trustee
with respect to the California Premises,
_______________, as Trustee
with respect to the Virginia Premises,
_______________, as Trustee
with respect to the Missouri Premises,
and
XXXXXXX XXXXX MORTGAGE COMPANY
COLLATERAL IS OR INCLUDES FIXTURES.
THE MAXIMUM PRINCIPAL INDEBTEDNESS FOR TENNESSEE RECORDING TAX PURPOSES
IS $_______________.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, WITH RESPECT TO THE
NEW YORK PREMISES, THE MAXIMUM AMOUNT OF INDEBTEDNESS SECURED BY THIS INSTRUMENT
AT EXECUTION OR WHICH UNDER ANY CONTINGENCY MAY BECOME SECURED HEREBY AT ANY
TIME HEREAFTER IS THE PRINCIPAL SUM OF $__________ PLUS INTEREST THEREON, PLUS
AMOUNTS EXPENDED BY THE LENDER AFTER A DECLARATION OF DEFAULT HEREUNDER TO
MAINTAIN THE LIEN OF THIS INSTRUMENT OR TO PROTECT THE PROPERTY SECURED BY THIS
INSTRUMENT, INCLUDING, WITHOUT LIMITATION, AMOUNTS IN RESPECT OF INSURANCE
PREMIUMS, REAL ESTATE TAXES, LITIGATION EXPENSES TO PROSECUTE OR DEFEND THE
RIGHTS, REMEDIES AND LIEN OF THIS INSTRUMENT OR TITLE TO THE PROPERTY SECURED
HEREBY, AND ANY COSTS, CHARGES OR AMOUNTS TO WHICH THE LENDER BECOMES SUBROGATED
UPON PAYMENT, WHETHER UNDER RECOGNIZED PRINCIPLES OF LAW OR EQUITY OR UNDER
EXPRESS STATUTORY AUTHORITY, TOGETHER WITH INTEREST ON ALL THE FOREGOING AMOUNTS
AT THE DEFAULT RATE (AS DEFINED IN THE CREDIT AGREEMENT).
NOTICE AS TO OKLAHOMA PREMISES: A POWER OF SALE HAS BEEN GRANTED IN THIS
INSTRUMENT. A POWER OF SALE MAY ALLOW THE LENDER TO TAKE THE OKLAHOMA PREMISES
AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE
BORROWER.
THIS INSTRUMENT IS ALSO TO BE INDEXED IN THE INDEX OF FINANCING STATEMENTS AS A
FIXTURE FILING IN ACCORDANCE WITH THE UNIFORM COMMERCIAL CODE, INCLUDING
SECTIONS 9-313 AND 9-402, AS ADOPTED IN ALABAMA, ARKANSAS, NEW YORK, NORTH
CAROLINA, OKLAHOMA, TENNESSEE, VIRGINIA, CALIFORNIA AND GEORGIA.
THE NAMES OF THE DEBTOR AND THE SECURED PARTY, THE MAILING ADDRESS OF THE
SECURED PARTY FROM WHICH INFORMATION CONCERNING THE SECURITY INTEREST MAY BE
OBTAINED, THE MAILING ADDRESS OF THE DEBTOR AND A STATEMENT INDICATING THE
TYPES, OR DESCRIBING THE ITEMS, OF COLLATERAL, ARE AS DESCRIBED IN SUBSECTION
3.7.3 HEREOF.
THIS INSTRUMENT SECURES ANY CONTRACTUAL FUTURE ADVANCES THAT MAY BE MADE BY
LENDER TO BORROWER OR ANY CONTRACTUAL FUTURE OBLIGATIONS OF BORROWER TO LENDER
AT ANY TIME AND FROM TIME TO TIME DURING THE TERM HEREOF, NOT TO EXCEED [ONE
(1)] YEAR IMMEDIATELY FOLLOWING THE DATE HEREOF, IN AN AMOUNT NOT TO EXCEED AT
ANY ONE TIME OUTSTANDING $_______________, PLUS INTEREST, COSTS OF COLLECTION
(INCLUDING, BUT NOT LIMITED TO REASONABLE ACTUAL ATTORNEY FEES, WHETHER OR NOT
LITIGATION IS COMMENCED) AND SUMS ADVANCED TO PROTECT THE SECURITY OF THIS
INSTRUMENT AND, WITH RESPECT TO THE MISSOURI PREMISES, THIS INSTRUMENT IS TO BE
GOVERNED BY SECTION 443.055 OF THE REVISED STATUTES OF MISSOURI, AS AMENDED.
NOTE: INTEREST OR DISCOUNT MAY BE DEFERRED OR DEFERRED ACCRUED OR CAPITALIZED
BUT ONLY AT THE OPTION OF THE LENDER.
THIS AMENDED AND RESTATED MASTER MORTGAGE, DEED TO SECURE DEBT
AND DEED OF TRUST, UNIFORM COMMERCIAL CODE SECURITY AGREEMENT AND ASSIGNMENT OF
LEASES, RENTS AND PROFITS made as of the _____ day of October, 1997, by and
among AMERICOLD CORPORATION, an Oregon corporation ("Borrower"); and XXXXXXX
XXXXX MORTGAGE COMPANY, a New York limited partnership ("Lender"); and
_______________, _______________, _______________, _______________ and
_______________, each as trustee with respect to a portion of the Premises.
W I T N E S S E T H T H A T:
WHEREAS, this date Borrower, Vornado Crescent Portland
Partnership and Lender have entered into a certain Credit Agreement regarding
certain obligations of Borrower owed to Lender;
WHEREAS, to secure the repayment of such money and the
performance of certain obligations, Borrower desires to convey, grant and assign
liens, security titles, security interests and collateral assignments in certain
property;
WHEREAS, Lender is the owner and holder by assignment of the
mortgage(s) listed on Schedule 1 attached hereto (hereinafter collectively the
"Original Mortgage"), which Original Mortgage encumbers, among other things, all
of the Borrower's right, title and interest in the Premises (as defined below),
and Borrower is the obligor under the Original Mortgage;
WHEREAS, the aggregate principal amount secured by the
Original Mortgage is ________________ AND 00/100 DOLLARS ($___,000,000.00) and
as of the date of this Instrument, the aggregate principal amount outstanding
under the Original Mortgage is ________________ AND 00/100 DOLLARS
($___,000,000.00); and
WHEREAS, Borrower and Lender desire to amend and restate the
Original Mortgage on the terms and conditions set forth herein.
NOW THEREFORE, for and in consideration of the sum of Ten and
No/100 Dollars ($10.00), the mutual agreements contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and to secure the indebtedness hereinafter described, the parties
agree as follows:
Borrower hereby ratifies and confirms in all respects the
Original Mortgage, and agrees that the aggregate principal amount outstanding
under the notes and other instruments secured by the Original Mortgage, as
amended and restated hereby, is __________________ AND 00/100 DOLLARS
($___,000,000.00) which principal amount shall bear interest in accordance with
the terms of the Credit Agreement.
Borrower warrants, represents and agrees that Borrower has no
defenses, offsets, claims, counterclaims, abatements or deductions relating to
the Original Mortgage or any amounts due thereunder.
The Original Mortgage is hereby modified, amended and restated
pursuant to the terms of this Instrument to read in its entirety as set forth
below:
ARTICLE I.
DEFINITIONS
For the purpose of this Instrument, the following defined
terms shall have the meanings ascribed thereto in this Article I:
"Alabama Tracts" shall mean, collectively, the Montgomery
Tract, the Andalusia Tract and the Dothan Tract.
"Albany Tract" shall mean that certain tract or parcel of land
located in Xxxxxxxxx County, Georgia being more particularly described on
Exhibit "A" attached hereto and by this reference made a part hereof as the
"Albany Tract".
"Andalusia Tract" shall mean that certain tract or parcel of
land located in Xxxxxxxxx County, Alabama being more particularly described on
Exhibit "A" attached hereto and by this reference made a part hereof as the
"Andalusia Tract".
"Arkansas Tract" shall mean that certain tract or parcel of
land located in Xxxxxxxxxx County, Arkansas being more particularly described on
Exhibit "A" attached hereto and by this reference made a part hereof as the
"Arkansas Tract
"Ashburn Tract" shall mean that certain tract or parcel of
land located in Xxxxxx County, Georgia being more particularly described on
Exhibit "A" attached hereto and by this reference made a part hereof as the
"Ashburn Tract".
"Augusta Tract" shall mean that certain tract or parcel of
land located in Richmond County, Georgia being more particularly described on
Exhibit "A" attached hereto and by this reference made a part hereof as the
"Augusta Tract".
"Borrower" shall mean Americold Corporation, an Oregon
corporation, and its permitted successors and assigns.
"California Tract" shall mean that certain tract or parcel of
land located in San Bernardino County, California being more particularly
described on Exhibit "A" attached hereto and by this reference made a part
hereof as the "California Tract".
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. ss. 9601 et seq. and 40 CFR
ss. 302.1 et seq.), as amended or replaced from time to time.
"Charlotte Tract" shall mean, collectively, those certain
tracts or parcels of land located in Mecklenburg County, North Carolina being
more particularly described on Exhibit "A" attached hereto and by this reference
made a part hereof as the "Charlotte Tract".
"Columbus Tract" shall mean that certain tract or parcel of
land located in Muscogee County, Georgia being more particularly described on
Exhibit "A" attached hereto and by this reference made a part hereof as the
"Columbus Tract".
"Combined Documents" shall mean the Credit Agreement, the
Note, this Instrument, the other "Loan Documents" (as defined in the Credit
Agreement) and any other instrument, document or other writing executed on or
after the date hereof on behalf of Borrower evidencing, securing or otherwise
relating to any of the Combined Obligations.
"Combined Obligations" shall mean and include the following
collectively:
(a) All "Secured Obligations", as that term is defined in the
Credit Agreement.
(b) Any and all indebtedness, obligations and liabilities of
Borrower to Lender now existing or hereafter arising under, by
virtue of or pursuant to this Instrument.
(c) Any and all advances hereafter made by Lender at any time to
protect or preserve the Premises or the lien hereof on the
Premises, or for taxes, assessments, insurance premiums or
other advances authorized under the terms of this Instrument
(whether or not the original Borrower remains the owner of the
Premises at the time of any such advances).
(d) Any and all other present and future indebtedness now owing or
which may at any time and from time to time hereafter be owing
by Borrower to Lender arising out of or otherwise relating to
the Credit Agreement or the other Combined Documents, now
existing or hereafter coming into existence, however and
whenever incurred or evidenced, whether express or implied,
direct or indirect, absolute or contingent, or due or to
become due, joint, several, joint and several, if arising
from, by virtue of, evidenced by or pursuant to any of the
Combined Documents and all renewals, substitutions,
modifications, amendments, consolidations and extensions and
restatements thereof.
"Credit Agreement" shall mean that certain Credit Agreement
dated as of October 31, 1997 by and among Borrower, as borrower, United
Refrigeration Services of Texarkana, Inc., as guarantor, and Lender, as agent
and lender, together with any and all renewals, substitutions, modifications,
amendments, consolidations and extensions thereof.
"Default Condition" shall mean the occurrence of any event or
condition, (i) notice of the existence of which is a prerequisite to the
occurrence of an Event of Default under the Credit Agreement and notice of the
existence of which has been given or (ii) described in Section 7.1 of the Credit
Agreement.
"Dothan Tract" shall mean that certain tract or parcel of land
located in Houston County, Alabama being more particularly described on Exhibit
"A" attached hereto and by this reference made a part hereof as the "Dothan
Tract".
"Easements and Appurtenances" shall mean and include all
easements, rights-of-way, strips and gores of land, vaults, streets, ways,
alleys, passages, sewer rights, waters, water courses, water rights and powers,
minerals, flowers, shrubs, crops, trees, timber and other emblements now or
hereafter located on the Land or under or above the same or any part or parcel
thereof, and all estates, rights, titles, interests, privileges, liberties,
tenements, hereditaments and appurtenances, reversion and reversions, remainder
and remainders, whatsoever, in any way belonging, relating or appertaining to
the Premises or any part thereof, or which hereafter shall in any way belong,
relate or be appurtenant thereto, whether now owned or hereafter acquired by
Borrower.
"Environmental Laws" shall mean any present or future federal,
state or local law, statute, regulation or ordinance, and any judicial or
administrative order or judgment thereunder, pertaining to health, industrial
hygiene relating to Hazardous Materials handling, usage or exposure, Hazardous
Materials, or the environment, including, without limitation, each of the laws,
statutes, regulations and ordinances identified in the definition of Hazardous
Materials hereinafter set forth, as enacted as of the date hereof and as
hereafter amended or supplemented, and any permit, authorization or order
thereunder.
"Event of Default" shall have the meaning ascribed to such
term in Section 4.1 hereof.
"Fair Market Value" shall mean with respect to a Tract
(inclusive of the Plant, Equipment and Personal Property relating thereto) the
value of which would be obtained in a purchase and sale of such Tract in an
arm's length transaction among non-affiliates in which the buyer is under no
compulsion to purchase the Tract and the seller is under no compulsion to sell
the Property. The Fair Market Value shall be such amount as reasonably
determined by Lender.
"Fixtures" shall mean any and all items, other than racks and
forklifts, included in Plant, Equipment and Personal Property which constitute
fixtures under the law of the state in which the Premises of which they
constitute a part are located and any and all other items of personal property
which are physically attached to the Land or buildings thereon and necessary to
operate such buildings as refrigerated warehouses and any and all replacements
and substitutions of any of the foregoing.
"Gateway Tract" shall mean, collectively, those certain tracts
or parcels of land located in Xxxxxx County, Georgia being more particularly
described on Exhibit "A" attached hereto and by this reference made a part
hereof as the "Gateway Tract".
"Georgia Tracts" shall mean, collectively, the Gateway Tract,
the Lakewood Tract, the Columbus Tract, the Moultrie Tract, the Albany Tract,
the Macon Tract, the Augusta Tract and the Ashburn Tract.
"Hazardous Materials" shall mean and include (i) those
elements, wastes, materials, substances or compounds identified or regulated as
hazardous or toxic pursuant to the CERCLA, the Resource Conservation and
Recovery Act of 1976 (42 U.S.C. ss. 6901 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. ss. 1251 et seq. and 40 CFR ss. 116.1 et seq.), the
Hazardous Materials Transportation Act (49 U.S.C. ss. 1801 et seq.), the Clean
Air Act (42 U.S.C. ss. 7401 et seq.), the Federal Insecticide, Fungicide and
Rodenticide Act (7 U.S.C. ss. 136 et seq.), the Emergency Planning and Community
Right-to-Know Act (42 U.S.C. ss. 1101 et seq.), the Occupational Safety and
Health Act (29 U.S.C. ss. 651 et seq.), the Residential Lead-Based Paint Hazard
Reduction Act (42 U.S.C. ss. 4851 et seq.), any analogous state laws, any
amendments thereto, and the regulations promulgated pursuant to said laws, all
as amended from time to time, relating to or affecting the Premises, (ii) any
hazardous, toxic or harmful substances, wastes, materials, pollutants or
contaminants (including, without limitation, asbestos, polychlorinated
biphenyls, petroleum products, flammable explosives, radioactive materials,
infectious substances, materials containing lead-based paint or raw materials
which include hazardous constituents) or any other substances or materials which
are regulated by Environmental Laws, on, in, under or affecting all or any
portion of the Premises or any surrounding areas, and (iii) any substances now
or hereafter defined as or included in the definitions of "hazardous
substances", "hazardous wastes", "hazardous materials", "pollutants" or "toxic
substances" under any applicable Legal Requirements.
"Indiana Tract" shall mean that certain tract or parcel of
land located in the County of Marion, Indiana being more particularly described
on Exhibit "A" attached hereto and by this reference made a part hereof as the
"Indiana Tract".
"Instrument" shall mean this Amended and Restated Master
Mortgage, Deed to Secure Debt and Deed of Trust, Uniform Commercial Code
Security Agreement and Assignment of Leases, Rents and Profits, together with
any and all renewals, substitutions, modifications, amendments, consolidations
and extensions of this Instrument.
"Insurance Requirements" shall mean all terms of any insurance
policy required by this Instrument, all requirements of the issuer of any such
policy, and all regulations and then current standards applicable to or
affecting the Premises or any use or condition thereof, which may, at any time,
be recommended by the Board of Fire Underwriters, if any, having jurisdiction
over the Premises, or such other person or entity exercising similar functions.
"Kansas Tract" shall mean that certain tract or parcel of land
located in the County of Sedgwick, Kansas being more particularly described on
Exhibit "A" attached hereto and by this reference made a part hereof as the
"Kansas Tract".
"Lakewood Tract" shall mean that certain tract or parcel of
land located in Xxxxxx County, Georgia being more particularly described on
Exhibit "A" attached hereto and by this reference made a part hereof as the
"Lakewood Tract".
"Land" shall mean, collectively, the Georgia Tracts, the North
Carolina Tracts, the South Carolina Tract, the Virginia Tract, the Alabama
Tracts, the Missouri Tract, the Oklahoma Tract, the Arkansas Tract, the
Tennessee Tract, the New York Tract and the California Tract.
"Leases and Rents" shall mean and include all leases, tenant
contracts, operating agreements, public warehouse agreements and rental
agreements pertaining to the Premises whether now or hereafter existing and
including, without limitation, [the Tarboro Lease and] all income, rents,
issues, profits and revenues of the Premises at any time and from time to time
now or hereafter accruing (including, without limitation, all payments under
leases or tenancies, proceeds of insurance, condemnation payments, tenant
security deposits, whether held by Borrower or in a trust account, payments to
Borrower in connection with any sale of any Premises to a tenant or customer
pursuant to the provisions of any lease or public warehouse agreement and escrow
funds), and all the estate, right, title, interest, property, possession, claim
and demand whatsoever at law, as well as in equity, of Borrower of, in and to
the same whether now or hereafter existing; provided, however, that the
assignment of any lease [(including, without limitation, the Tarboro Lease)],
operating agreement, tenant contract, public warehouse agreement and rental
agreement pursuant to which consent to the assignment is required from any or
all of the parties thereto, shall not be effective until such time as Lender
shall have obtained such consent.
"Legal Requirements" shall mean all federal, state, county, municipal
and other governmental statutes, laws, rules, orders, regulations, ordinances,
judgments, decrees and injunctions (including, without limitation any of the
foregoing relating to Hazardous Materials) affecting all or any part of the
Premises or the construction, use, alteration or operation thereof, whether now
or hereafter enacted and in force, including, without limitation, (i) any which
may require repairs, modifications or alterations in or to all or any part of
the Premises, (ii) any which may in any way limit the use and enjoyment thereof,
and all permits, licenses and authorizations and regulations relating thereto,
(iii) all covenants, agreements, restrictions and encumbrances contained in any
instruments, either of record or known to Borrower, any time in force affecting
all or any part of the Premises, or (iv) any which may pertain to requirements
for equal opportunity, anti-discrimination, disability accommodation,
environmental protection, zoning or land use.
"Lender" shall mean Xxxxxxx Xxxxx Mortgage Company, a New York
limited partnership, together with its successors, successors-in-title and
assigns.
"Macon Tract" shall mean that certain tract or parcel of land
located in Xxxx County, Georgia being more particularly described on Exhibit "A"
attached hereto and by this reference made a part hereof as the "Macon Tract".
"Missouri Tract" shall mean that certain tract or parcel of
land located in Saline County, Missouri being more particularly described on
Exhibit "A" attached hereto and by this reference made a part hereof as the
"Missouri Tract".
"Montgomery Tract" shall mean that certain tract or parcel of
land located in Xxxxxxxxxx County, Alabama being more particularly described on
Exhibit "A" attached hereto and by this reference made a part hereof as the
"Montgomery Tract".
"Moultrie Tract" shall mean that certain tract or parcel of
land located in Xxxxxxxx County, Georgia being more particularly described on
Exhibit "A" attached hereto and by this reference made a part hereof as the
"Moultrie Tract".
"New York Tract" shall mean that certain tract or parcel of
land located in Onondaga County, New York being more particularly described on
Exhibit "A" attached hereto and by this reference made a part hereof as the "New
York Tract".
"North Carolina Tracts" shall mean, collectively, the
Charlotte Tract and the Tarboro Tract.
"Note" shall have the meaning ascribed thereto in the Credit
Agreement.
"Oklahoma Tract" shall mean that certain tract or parcel of
land located in Oklahoma County, Oklahoma being more particularly described on
Exhibit "A" attached hereto and by this reference made a part hereof as the
"Oklahoma Tract".
"Other Personalty" shall mean any and all personal property
included in the Plant, Equipment and Personal Property other than Fixtures.
"Pennsylvania Tract" shall mean that certain tract or parcel
of land located in the County of Berks, Pennsylvania being more particularly
described on Exhibit "A" attached hereto and by this reference made a part
hereof as the "Pennsylvania Tract".
"Permitted Liens" shall have the meaning ascribed thereto in
the Credit Agreement.
"Plant, Equipment and Personal Property" shall mean and
include all buildings, structures and improvements of every nature whatsoever
now or hereafter situated on the Land now or hereafter owned by Borrower or in
which Borrower now or hereafter has rights (to the extent of such rights), and
all gas and electric fixtures, radiators, heaters, engines and machinery,
boilers, ranges, elevators and motors, plumbing and heating fixtures, carpeting
and other floor coverings, fire extinguishers and any other safety equipment
required by governmental regulation or law, washers, dryers, water heaters,
mirrors, mantels, air conditioning apparatus, refrigerating plants,
refrigerators, cooking apparatus and appurtenances, window screens, awning and
storm sashes now or hereafter owned by Borrower, which are or shall be attached
to said buildings, structures or improvements and all other furnishings,
furniture, fixtures, machinery, equipment, appliances, racks, forklifts,
building supplies and materials, books and records, chattels, contract rights,
and personal property of every kind and nature whatsoever now or hereafter owned
by Borrower or in which Borrower now or hereafter has rights (to the extent of
such rights) and now or hereafter located in, on or about, or used or intended
to be used with or in connection with the use, operation or enjoyment of the
Premises, including all extensions, additions, improvements, betterments,
after-acquired property, renewals, replacements and substitutions, or proceeds
from a sale of any of the foregoing (but excluding, however, all motor
vehicles); and all the right, title and interest of Borrower now or hereafter in
any such furnishings, furniture, fixtures, machinery, equipment, appliances and
personal property subject to or covered by any prior or superior security
agreement, conditional sales contract, chattel mortgage or similar lien or
claim, together with the benefit of any deposits or payments now or hereafter
made by Borrower or on behalf of Borrower; and all personal property
constituting proceeds hereafter acquired with cash proceeds of any of the Plant,
Equipment and Personal Property described hereinabove; all of which are hereby
declared and shall be deemed to be fixtures (except for the purpose of the
definition of "Fixtures" above), and accessions to the Land and a part of the
Premises as between the parties hereto and all persons claiming by, through or
under them, and which shall be deemed to be a portion of the security for the
Combined Obligations. The location of the Plant, Equipment and Personal Property
is also the location of the Land.
"Premises" shall mean and include, collectively, the Land, the
Plant, Equipment and Personal Property, the Easements and Appurtenances and the
Leases and Rents. Whenever the word "Premises" is preceded by the name of a
state or city, for example, "Georgia Premises", such reference shall be deemed
to mean and include that portion of the Premises located in the identified state
or city. If the context shall so require, the word "Premises" shall be
interpreted to mean the portion of the Land, the Plant, Equipment and Personal
Property, the Easements and Appurtenances and the Leases and Rents which relate
to a particular facility (as opposed to any group of facilities which may
comprise a given Tract).
"South Carolina Tract" shall mean that certain tract or parcel
of land located in Richland County, South Carolina being more particularly
described on Exhibit "A" attached hereto and by this reference made a part
hereof as the "South Carolina Tract".
"Tarboro Lease" shall mean that certain Public Warehousing
Service Agreement between Borrower and Kitchens of Xxxx Xxx, Inc., as amended or
modified from time to time.
"Tarboro Tract" shall mean that certain tract or parcel of
land located in Edgecombe County, North Carolina being more particularly
described on Exhibit "A" attached hereto and by this reference made a part
hereof as the "Tarboro Tract".
"Tennessee Tract" shall mean, collectively, those certain
tracts or parcels of land located in Shelby County, Tennessee being more
particularly described on Exhibit "A" attached hereto and by this reference made
a part hereof as the "Tennessee Tract".
"Tract" or "Tracts" shall mean any one or all of the Georgia
Tracts, the North Carolina Tracts, the South Carolina Tract, the Virginia Tract,
the Alabama Tracts, the Missouri Tract, the Oklahoma Tract, the Arkansas Tract,
the Tennessee Tract, the New York Tract and the California Tract, as the context
may require. With respect to any Tract that includes more than one facility,
"Tract" shall mean any of such facilities, if the context so requires.
"Trustee" shall mean _______________, a resident of
_______________ County, North Carolina, with respect to the North Carolina
Premises; _______________, a _______________ corporation with respect to the
California Premises; _______________, a _______________ corporation with respect
to the Virginia Premises; _______________, a resident of _______________ County,
Tennessee, with respect to the Tennessee Premises; and _______________ with
respect to the Missouri Premises, together with any successor Trustee appointed
pursuant to the provisions of this Instrument. It is the intention of the
parties hereto that only the Trustee designated with respect to any Premises
need act with respect thereto, and not any other Trustee.
"Virginia Tract" shall mean that certain tract or parcel of
land located in the City of Norfolk, Virginia being more particularly described
on Exhibit "A" attached hereto and by this reference made a part hereof as the
"Virginia Tract".
ARTICLE II.
GRANTING CLAUSES
2.1. Granting Clause. In order to secure the full and prompt payment
when due, whether by acceleration or otherwise, and full and prompt performance,
of the Combined Obligations in such order of priority as Lender may elect,
Borrower hereby mortgages, grants, conveys and warrants the Premises to Lender
or to Trustee for the benefit of Lender with respect to the North Carolina
Premises, the California Premises, the Missouri Premises, the Virginia Premises
and the Tennessee Premises and grants to Lender a security interest in the
Premises as more particularly set forth in this Article; provided, however, that
this grant of a security interest with respect to any Fixtures or Other
Personalty now owned or hereafter acquired which is subject to a prior or
superior security interest, the consent of the secured party of which to the
grant herein is required by the terms thereof, shall not be effective until such
time as such consents shall have been obtained:
2.1.1. Alabama Premises. Borrower hereby does
grant, bargain, sell, assign and convey unto
Lender, the successors, successors-in-title
and assigns of Lender, the Alabama Tracts,
together with the Plant, Equipment and
Personal Property, the Easements and
Appurtenances, and the Leases and Rents
pertaining to the Alabama Tracts, to have
and to hold forever.
2.1.2. Arkansas Premises. Borrower hereby does
grant, bargain, sell, assign, convey and
deliver unto Lender, the successors,
successors-in-title and assigns of Lender,
the Arkansas Tract, together with the Plant,
Equipment and Personal Property, the
Easements and Appurtenances and Leases and
Rents pertaining to the Arkansas Tract, to
have and to hold forever.
2.1.3. California Premises. Borrower hereby does
grant, bargain, sell, assign and convey unto
Trustee, in trust with power of sale, the
California Tract, together with the Plant,
Equipment and Personal Property, the
Easements and Appurtenances, and the Leases
and Rents pertaining to the California
Tract, to have and to hold forever.
2.1.4. Georgia Premises. Borrower hereby does
grant, bargain, sell, assign and convey unto
Lender, the successors, successors-in-title
and assigns of Lender, the Georgia Tracts,
together with the Plant, Equipment and
Personal Property, the Easements and
Appurtenances and the Leases and Rents
pertaining to each such tract, to have and
to hold in fee simple forever, except as to
the _______________ Tract as to which the
leasehold interest is hereby assigned. With
respect to the Georgia Tracts, this
Instrument is intended to operate and is to
be construed as a deed passing title or an
assignment of lease to those tracts to
Lender and not as a mortgage and is made
under those provisions of the existing laws
of the State of Georgia relating to deeds to
secure debt.
2.1.5. Indiana Premises. Borrower hereby does
grant, bargain, sell, assign and convey unto
Lender, the successors, successors-in-title
and assigns of Lender, the Indiana Tract,
together with the Plant, Equipment and
Personal Property, the Easements and
Appurtenances, and the Leases and Rents
pertaining to the Indiana Tract, to have and
to hold forever.
2.1.6. Kansas Premises. Borrower hereby does grant,
bargain, sell, assign and convey unto
Lender, the successors, successors-in-title
and assigns of Lender, the Kansas Tract,
together with the Plant, Equipment and
Personal Property, the Easements and
Appurtenances, and the Leases and Rents
pertaining to the Kansas Tract, to have and
to hold forever.
2.1.7. Missouri Premises. Borrower hereby does
grant, bargain, sell, convey and confirm
unto _______________ as Trustee in trust for
the benefit of Lender, the successors,
successors-in-title and assigns of Lender,
the Missouri Tract, together with the Plant,
Equipment and Personal Property, the
Easements and Appurtenances, and the Leases
and Rents pertaining to the Missouri Tract,
to have and to hold the same unto said
Trustee and to said Trustee's successor or
successors in trust forever, in trust for
the purposes set forth herein, and
possession of said premises is now delivered
unto Trustee, including the right to collect
rents as hereinafter set forth.
2.1.8. New York Premises. Borrower hereby does
grant, bargain, sell, assign and convey unto
Lender, the New York Tract, together with
the Plant, Equipment and Personal Property,
the Easements and Appurtenances, and the
Leases and Rents pertaining to the New York
Tract, to have and hold forever.
2.1.9. North Carolina Premises. Borrower hereby
does irrevocably grant, bargain, sell,
assign and convey unto Trustee in trust,
with power of sale, under and subject to the
terms hereof, for the benefit of Lender, the
North Carolina Tracts, together with the
Plant, Equipment and Personal Property, the
Easements and Appurtenances, and the Leases
and Rents pertaining to the North Carolina
Tracts, to have and hold forever.
2.1.10. Oklahoma Premises. Borrower hereby does
grant Lender a first mortgage and security
interest in and to the Oklahoma Premises,
all and singular, and warrants title to the
same, and further irrevocably assigns,
transfers and sets over unto Lender all
Leases and Rents thereof, absolutely not
collaterally (reserving only unto Borrower
the rights to collect the same as provided
by Subsection 3.6.1 hereof), to have and to
hold unto Lender, its successors and
assigns, forever.
Borrower further grants, acknowledges and
confirms unto Lender, as mortgagee, the full
power of sale of the Oklahoma Premises to
the extent of all real or mixed property
thereof, as authorized by the Oklahoma Power
of Sale Mortgage Foreclosure Act (46 O.S.
Supp. 1987 xx.xx. 40 et seq.), as said Act
is or may hereafter be amended, from time to
time, in addition to and not by way of
limitation of any and all other remedies
allowed at law or in equity.
2.1.11. Pennsylvania Premises. Borrower hereby does
grant, bargain, sell, assign and convey unto
Lender, the successors, successors-in-title
and assigns of Lender, the Pennsylvania
Tract, together with the Plant, Equipment
and Personal Property, the Easements and
Appurtenances, and the Leases and Rents
pertaining to the Pennsylvania Tract, to
have and to hold forever.
2.1.12. South Carolina Premises. Borrower hereby
does convey, bargain, sell, release, assign
and grant a security interest unto Lender in
and to the South Carolina Tract, together
with the Plant, Equipment and Personal
Property, the Easements and Appurtenances
and the Leases and Rents pertaining to the
South Carolina Tract, to have and hold
forever.
2.1.13. Tennessee Premises. Borrower hereby does
grant, bargain, sell, assign, warrant,
pledge and convey unto Trustee, his
successors and assigns, in trust for the
benefit of Lender, the successors,
successors-in-title and assigns of Lender,
the Tennessee Tract, together with the
Plant, Equipment and Personal Property, the
Easements and Appurtenances and the Leases
and Rents pertaining to each such tract, to
have and to hold in fee simple forever. THIS
CONVEYANCE IS MADE IN TRUST AS TO THE
TENNESSEE PREMISES IN ORDER TO SECURE THE
COMBINED OBLIGATIONS AND FOR NO OTHER
PURPOSES.
2.1.14. Virginia Premises. Borrower hereby does
grant, bargain, sell, assign and convey unto
Trustee, the successors, successors-in-title
and assigns of Trustee, the Virginia Tract,
together with the Plant, Equipment and
Personal Property, the Easements and
Appurtenances and Leases and Rents to the
Virginia Tract, to have and to hold forever.
2.2. Warranty of Title. Borrower does warrant and will forever defend
the title to the Premises against the claims of all persons whomsoever, except
as to the Permitted Liens. Borrower represents and warrants that it is lawfully
seized of the Premises, other than the ____________ Tract [DELETE, IF NOT
APPLICABLE], in fee simple absolute, that Borrower has a valid leasehold estate
in the ____________ Tract [DELETE, IF NOT APPLICABLE] and the __________ Tract,
that Borrower has good right and is lawfully authorized to sell, convey or
encumber the Premises and that the Premises are free and clear of all
encumbrances except liens for real property taxes not yet due and payable and
Permitted Liens.
2.3. Defeasance; Sales Pursuant to Existing Leases.
(a) Should the Combined Obligations secured by this Instrument be paid
and satisfied, then this Instrument and the conveyance effected and the liens
and security interests granted hereby shall be released and terminated and shall
be canceled and surrendered. Upon payment and satisfaction of the Combined
Obligations in full, Lender and Trustee shall execute, in recordable form, and
deliver to Borrower such instruments as are required to release and terminate of
record this Instrument. As to the South Carolina Premises, it is the intent and
meaning of Borrower and Lender that, if Borrower pays or causes to be paid to
Lender the Combined Obligations, the estate hereby granted shall cease,
terminate and be null and void, otherwise such estate shall remain in full force
and effect.
(b) Lender acknowledges that, pursuant to [(i)] the terms of that
certain Public Warehousing Service Agreement between Borrower and Kitchens of
Xxxx Xxx, Inc. pertaining to the Tarboro Tract, [and _____________________,] the
Borrower may either elect or be required to convey to the lessee thereunder the
Land leased pursuant thereto, together with all or part of the Plant, Equipment
and Personal Property thereon. In the event of any such sale, Lender shall
release the Lien of this Instrument from the subject Premises upon payment to
Lender of all of the sales proceeds payable to Borrower with respect to such
sale, net of reasonable costs of sale.
2.4. Maximum Amount - North Carolina. The maximum amount, including
now existing and future disbursements, which may be secured hereby with respect
to the North Carolina Premises at any one time is equal to the principal amount
of $_______________; provided, however, that said maximum amount may be
increased by such additional sums and amounts as may be advanced by Lender
pursuant to the provisions of this Instrument for the protection and
preservation of the Premises, and such additional sums and amount as shall be
deemed necessary expenditures for the protection of the security in accordance
with N.C. Gen. Stat. Section 45-70(c).
2.5. Maximum Amount - South Carolina. With respect to the South
Carolina Premises, the total amount of the indebtedness that may be secured by
this Instrument at one time shall not exceed _______________ and No/100 Dollars
($_______________.00), plus interest thereon, and any disbursements made for the
payment of taxes, assessments, levies, or insurance, plus interest thereon,
reasonable, actual attorneys' fees and court costs.
2.6. Future Disbursements. This Instrument secures all present and
future loan disbursements made by Lender to Borrower which are included in the
Combined Obligations.
ARTICLE III.
COVENANTS OF BORROWER
3.1. Payment of Indebtedness. Borrower will pay the Combined
Obligations according to the tenor thereof and all other sums now or hereafter
secured hereby promptly as the same shall become due.
3.2. Taxes, Liens and Other Charges.
3.2.1. In the event of the passage of any state,
federal, municipal or other governmental
law, order, rule or regulation, subsequent
to the date hereof, in any manner changing
or modifying the laws now in force governing
the taxation of debts secured by mortgages,
deeds of trust or deeds to secure debt (not
including tax on interest income associated
with such debt) or the manner of collecting
taxes so as to adversely affect Lender,
Borrower will promptly pay any such tax;
provided that, if such tax cannot legally be
paid by Borrower, then, on demand of Lender,
Borrower will prepay the Combined
Obligations in an amount equal to the Fair
Market Value with respect to the applicable
portion of the Premises(s). Lender agrees to
notify Borrower of the passing of any such
law, order, rule or regulation promptly upon
becoming actually aware thereof. Lender
shall not be deemed to be actually aware of
any such law, order, rule or regulation
unless and until an officer of Lender
responsible for administering the credit
relationship with the Borrower has become
actually aware thereof. If Borrower fails to
make such prompt payment or if, in the
reasonable opinion of Lender, any such
state, federal, municipal, or other
governmental law, order, rule or regulation
prohibits Borrower from making such payment
or would penalize Lender if Borrower makes
such payment or if, in the reasonable
opinion of Lender, the making of such
payment would result in the imposition of
interest beyond the maximum amount permitted
by applicable law, then the entire Combined
Obligations shall, at the option of Lender,
become immediately due and payable.
3.2.2. Except to the extent Borrower is contesting
the same in good faith, Borrower will pay,
before the same become delinquent, all
taxes, liens, assessments and charges of
every character including all utility
charges, whether public or private, already
levied or assessed or that may hereafter be
levied or assessed upon or against the
Premises and, upon demand, will furnish
Lender receipted bills evidencing such
payment.
3.2.3. Borrower will not suffer any mechanic's,
materialman's, laborer's, statutory or other
lien to be created and to remain outstanding
upon all or any part of the Premises, except
for inchoate liens securing obligations not
yet due and payable, and except for
"Permitted Liens" and liens that Borrower
has bonded over.
3.2.4. Borrower, to the full extent permitted by
applicable law, shall indemnify, defend and
hold Lender harmless from, or shall
reimburse Lender for, any and all intangible
tax, documentary stamp tax, mortgage tax,
note tax or other like or similar tax
(excluding income, franchise or capital
taxes or taxes imposed in lieu of such
taxes) imposed on the income of Lender or
because Lender may be deemed to be doing
business in the jurisdiction) imposed with
respect to this Instrument or under any
power of sale herein granted, any of the
other Combined Documents, or the Combined
Obligations, and from any interest, charges
or penalties assessed with respect thereto.
3.2.5. Nothing contained in this Section 3.2 shall
require the payment or discharge of any such
tax, lien, assessment or charge by Borrower
for so long as Borrower shall in good faith
and at its own expense contest the same or
the validity thereof by appropriate
administrative and legal proceedings
provided such contest is permitted by law,
and shall not constitute a default under any
of the Combined Documents and provided the
same shall prevent (i) the collection
thereof or other realization thereon and the
sale or forfeiture of the Premises or any
part thereof to satisfy the same or (ii) the
enforcement thereof against Borrower, Lender
or the Premises or any part thereof.
3.3. Insurance.
3.3.1. So long as any portion of the Combined
Obligations remains unpaid, Borrower, at its
expense, shall procure and maintain for the
benefit of Lender, insurance policies issued
by such insurance companies, and in such
amounts as are reasonably acceptable to
Lender, providing the following types of
insurance covering the Premises:
(i) All Risks Property Insurance
and separate insurance against
such other insurable hazards
as, under good insurance
practices, from time to time
are insured against for similar
properties in the area of the
Premises. The amount of such
insurance shall be not less
than one hundred percent (100%)
of the Full Replacement Cost of
the Plant, Equipment and
Personal Property without
deduction for depreciation. As
used herein, "Full Replacement
Cost" means the cost of
replacing the Plant, Equipment
and Personal Property,
exclusive of the cost of
excavations, foundations and
footings below the lowest
basement floor. Each policy
shall contain a Replacement
Cost Endorsement and an Agreed
Value Endorsement.
(ii) Business Interruption Insurance
insuring against loss of income
by reason of any hazard covered
under the insurance required
under Subsections (i), (iv) and
(v) of this Subsection 3.3.1 in
an amount sufficient to avoid
any coinsurance penalty, but in
any event for not less than one
year's gross receipts from all
sources of income from the
Premises less expenses not
reasonably expected to continue
during the period of
reconstruction.
(iii) Comprehensive General Liability
Insurance with broad form
liability endorsement or
comparable coverages for
personal injury liability,
including, without limitation,
bodily injury, death or
property damage liability and
also garage keeper's liability,
products liability, elevator
liability and blanket
contractual liability on an
occurrence basis in such amount
as Lender may require.
(iv) Boiler and Machinery Insurance
in such amount as Lender may
reasonably require, covering
physical damage to the Plant,
Equipment and Personal
Property, to the boilers,
pressure vessels, pressure
piping and other major
components of any central
heating, air-conditioning or
ventilating systems, to the
special refrigeration equipment
and to such other equipment as
Lender may require from time to
time.
(v) Flood Insurance in an amount
reasonably satisfactory to
Lender and which otherwise
complies with the national
flood insurance program as set
forth in the "Flood Disaster
Protection Act of 1973", as
well as subsequent amendments
thereto, provided the
respective Premises is included
in a HUD designated flood prone
area.
(vi) Worker's Compensation Insurance
(including Employer's Liability
Insurance) covering all
employees of the Borrower
employed in or about the
Premises to provide
health-related claims coverage
as well as statutory benefits
as required by the laws of the
state where the respective
Premises is located.
(vii) Such other insurance on the
Premises, or any part or parts
thereof, or any replacements or
substitutions therefor, or
additions thereto, and in such
amounts as may from time to
time reasonably be required by
Lender against other insurable
hazards or casualties which at
the time are commonly insured
against in the case of premises
similarly situated, due regard
being given to the height and
type of the respective Plant,
Equipment and Personal
Property, and other property
and their construction,
location, use and occupancy.
All insurance policies referenced in this
Subsection 3.3.1 which protect against
physical damage to the Plant, Equipment and
Personal Property, including but not limited
to those policies referenced in Subsection
3.3.1 clauses (i), (ii), (iv) and (v) above,
shall contain a standard mortgagee clause
(without contribution) in favor of Lender,
shall not be terminable without thirty (30)
days' prior written notice to Lender, and
shall be evidenced by original policies or
certified copies of policies deposited with
Lender, to be held by Lender until the
Combined Obligations shall have been fully
paid and discharged. All other insurance
policies, such as general liability
policies, required by the terms of this
Instrument shall be evidenced by
certificates delivered to Lender and in case
of cancellation, shall provide for ten (10)
days' prior written notice to Lender.
3.3.2. Lender shall have the right, if an Event of
Default shall have occurred and be
continuing, to approve any adjustment or
compromise of any loss in excess of
$1,000,000 (the "Threshold Amount") with
respect to any Tract (or any facility which
comprises a portion of any Tract) under any
insurance policies maintained pursuant to
paragraphs (i), (iv), (v) and (vii) of
Subsection 3.3.1. Lender shall have the
right to collect and receive the proceeds
from any such policy or policies (the
"Insurance Proceeds") where the Insurance
Proceeds are equal to or greater than the
Threshold Amount. To the extent permissible
under law, each insurance company is hereby
authorized and directed to make payment for
all such losses where the Insurance Proceeds
are equal to, or are in excess of, the
Threshold Amount directly to Lender, instead
of to Borrower or Borrower and Lender
jointly.
In the event that the Insurance Proceeds are
less than the Threshold Amount, such amount
shall be paid directly to the Borrower. If
the Insurance Proceeds are equal to, or in
excess of, the Threshold Amount but less
than $10,000,000, then, from time to time
(but not more frequently than once per
month), upon receipt by Lender of a
certificate signed by an appropriate officer
of Borrower stating that such Insurance
Proceeds shall be used to reimburse Borrower
for actual costs payable to third parties to
rebuild, restore, repair or reconstruct the
damaged Premises, Lender shall disburse such
Insurance Proceeds (or the applicable
portion thereof) to Borrower. If the
Insurance Proceeds are greater than
$10,000,000, then, Lender shall disburse
such Insurance Proceeds in accordance with
the reasonable and customary practices with
respect to the funding of construction loans
by institutional lenders for the purpose of
funding (or reimbursing Borrower for) actual
costs payable to third parties to rebuild,
restore, repair or reconstruct the damaged
Premises.
In the event there is a loss in excess of
the Threshold Amount and any insurance
company fails to disburse directly and
solely to Lender but disburses instead
either solely to Borrower or to Borrower and
Lender jointly, Borrower agrees immediately
to endorse and transfer such proceeds to
Lender. Upon the failure of Borrower to
endorse and transfer such proceeds as
aforesaid, Lender may execute such
endorsements or transfers for and in the
name of Borrower and Borrower hereby
irrevocably appoints Lender as Borrower's
agent and attorney-in-fact so to do.
Lender shall not be held responsible for any
failure to collect any insurance proceeds
due under the terms of any policy regardless
of the cause of such failure absent gross
negligence or willful misconduct.
3.3.3. Not less than ten (10) days prior to the
expiration date of each policy maintained
pursuant to this Section 3.3, evidence of a
renewal or replacement thereof satisfactory
to Lender shall be delivered to Lender. At
the request of Lender, Borrower shall
deliver to Lender receipts evidencing the
payment for all such insurance policies and
renewals or replacements. In the event of
the foreclosure of this Instrument or any
other transfer of title to any of the
Premises in extinguishment, in whole or in
part, of the Combined Obligations, all
right, title and interest of Borrower in and
to all insurance policies then in force with
respect to such Premises shall pass to the
purchaser or grantee.
3.3.4. Any provision of this Instrument to the
contrary notwithstanding, this Section 3.3
and the rights and obligations of Borrower
and Lender hereunder with respect to
insurance are in all respects subject to and
subordinate to any security agreements prior
or superior to this Instrument and the
rights of the "secured parties" thereof
relating to the collection and disposition
of insurance proceeds; provided, however, to
the extent this Section 3.3 imposes
requirements for the procurement and
maintenance by Borrower of insurance in
excess of that required by any of the
Combined Documents or any security
agreements prior or superior to this
Instrument, the more extensive requirements
of this Instrument shall control as between
Borrower and Lender.
3.4. Condemnation. If all or any portion of any Premises shall be
damaged or taken through condemnation (the term "condemnation" when used in this
Instrument shall include any damage or taking by any governmental or
quasi-governmental authority and any transfer by private sale in lieu thereof),
Lender shall have the right, if an Event of Default shall have occurred and be
continuing, to approve any adjustment or compromise of any award in excess of
the Threshold Amount. With respect to any condemnation which involves an award
in excess of the Threshold Amount, all such compensation, awards, damages,
claims, rights of action and proceeds and the right thereto are hereby assigned
by Borrower to Lender, and Lender is authorized, at its option, to collect and
receive all such compensation, awards or damages and to give proper receipts and
acquittances therefor without any obligation to question the amount of any such
compensation, awards or damage. If after deducting from said condemnation
proceeds all of the reasonable actual expenses incurred in the collection and
administration of such sums, including attorney's fees, any such compensation,
award or damages is: (i) less than the Threshold Amount, then such amount shall
be paid directly to the Borrower, (ii) equal to or greater than the Threshold
Amount, but less than $10,000,000, then, upon receipt by Lender of a certificate
signed by an appropriate officer of Borrower stating that such Insurance
Proceeds shall be used to reimburse Borrower for actual costs payable to third
parties to rebuild and/or restore the condemned Premises, Lender shall disburse
such compensation, awards or damages (or the applicable portion thereof) to
Borrower; or (iii) greater than $10,000,000, then, Lender shall disburse such
Insurance Proceeds in accordance with the reasonable and customary practices
with respect to the funding of construction loans by institutional lenders for
the purpose of funding (or reimbursing Borrower for) actual costs payable to
third parties to rebuild and/or restore the condemned Premises.
If, prior to the receipt by Lender of such award or proceeds, the Premises shall
have been sold on foreclosure of this Instrument, Lender shall have the right to
receive such award or proceeds to the extent of any unpaid Combined Obligations
following such sale, with interest thereon at the "Default Rate" (as defined in
the Credit Agreement), whether or not a deficiency judgment on this Instrument
shall have been sought or recovered, and to the extent of reasonable actual
counsel fees, costs and disbursements incurred by Lender in connection with the
collection of such award or proceeds.
3.5. Care of Premises. Borrower hereby covenants and agrees:
3.5.1. Borrower will, at its expense, (i) keep the
buildings, parking areas, roads and
walkways, recreational facilities,
landscaping and all other improvements of
any kind now or hereafter erected on the
Land or any part thereof in accordance with
Borrower's maintenance practices as of
October 31, 1997 and in compliance with all
existing and future applicable Legal
Requirements, and (ii) not commit or suffer
to be committed any waste of the Premises or
do or suffer to be done anything (other than
that which is inherent in the ordinary
course of Borrower's business operations)
which will increase the risk of fire or
other hazard to the Premises, impair the
value thereof or take any action which might
invalidate any insurance carried on the
Premises. Borrower shall keep the sidewalks,
vaults, gutters and curbs comprising of, or
adjacent to, the Premises, clean and free
from dirt, snow, ice, rubbish and
obstructions. All repairs made by Borrower
shall be made in a good and workmanlike
manner, shall be equal or better in quality
and class to the original work and shall
comply with all applicable Legal
Requirements and Insurance Requirements.
3.5.2. Borrower may demolish, remove, construct or
alter the Premises or any portion thereof;
or consent to or permit any such demolition,
removal, construction, or alteration without
Lender's prior written consent in each
instance; provided, in each case, that any
such demolition, removal, construction or
alteration does not materially and adversely
affect the value of the Premises.
3.5.3. If the Premises or any part thereof is
materially damaged by fire or any other
cause, Borrower will give immediate written
notice thereof to Lender.
3.5.4. Lender or its representative is hereby
authorized to enter upon and inspect the
Premises at any time during normal business
hours provided that Lender will not
unreasonably interfere with the business
operations of Borrower.
3.6. Leases, Contracts, Etc.
3.6.1. As additional collateral and further
security for the Combined Obligations,
Borrower does hereby assign as a present and
absolute assignment (to the extent
assignable and subject to the provisions in
the definition of "Leases and Rents"
regarding the assignment of any lease or
other agreement [(including, without
limitation, the Tarboro Lease)] pursuant to
which consent to the assignment is required
from any or all of the parties thereto) to
Lender or Trustee, as appropriate, all of
Borrower's right, title and interest now
existing or hereafter arising in and to any
and all Leases and Rents, franchise
agreements, management contracts,
construction contracts, and other contracts
(not included in the definition of Leases
and Rents), licenses and permits now or
hereafter affecting the Premises, or any
part thereof (reserving only to Borrower the
right to collect currently due and payable
income, rents, issues, profits, charges and
revenues from the Premises, other than
payments to Borrower in connection with any
sale of any Premises to a tenant or customer
pursuant to the provisions of any lease or
warehousing agreement, so long as no Event
of Default is in existence hereunder). The
foregoing is intended to be a present and
absolute assignment and not merely the
passing of a security interest. However, so
long as an Event of Default shall not have
occurred and be continuing, Borrower shall
have the right to receive the rents and
other amounts described above and to enforce
the obligations of the parties to such
leases and other agreements. Borrower agrees
to execute and deliver to Lender, such
additional instruments, in form and
substance reasonably satisfactory to Lender,
or Trustee, as appropriate, as may hereafter
be requested by Lender further to evidence
and confirm said assignment; provided,
however, that acceptance of any such
assignment shall not be construed as a
consent by Lender to any lease, operating
agreement, tenant contract, rental
agreement, franchise agreement, management
contract, construction contract, or other
contract, license or permit, or to impose
upon Lender, any obligation with respect
thereto. Except in the ordinary course of
business and until Lender shall direct
otherwise with respect to any particular
lease, operating agreement, tenant contract,
rental agreement, franchise agreement,
management contract, construction contract
or other contract, license or permits,
Borrower shall not cancel or permit the
cancellation of any such lease, tenant
contract, rental agreement, franchise
agreement, management contract, construction
contract, or other contract, license or
permit, or materially modify any of said
instruments, or accept, or permit to be
made, any prepayment of any installment of
rent or fees thereunder (except for security
deposits and the usual prepayment of rent
which results from the acceptance by a
landlord on the first day of each month of
the rent for that month). Borrower shall
faithfully keep and perform, or cause to be
kept and performed, all of the material
covenants, conditions and agreements
contained in each of said instruments, now
or hereafter existing, on the part of
Borrower to be kept and performed and, in
the ordinary course of Borrower's business,
shall at all times do all things reasonably
necessary to compel performance by each
other party to said instruments of all
obligations, covenants and agreements by
such other party to be performed thereunder.
3.6.2. Borrower shall furnish to Lender, within
twenty (20) days after a receipt of a
request by Lender to do so, such information
as Lender from time to time may reasonably
request concerning the leases, operating
agreements, tenant contracts, rental
agreements, and other agreements pertaining
to the use of the Premises.
3.6.3. In addition to any other right or remedy
contained herein or in any other Loan
Document, Lender shall have all of the
rights against lessees of the New York Tract
or any part thereof as are set forth in
Section 291-f of the Real Property Law of
New York.
3.7. Security Agreement.
3.7.1. PARTS OF THE PREMISES ARE, OR ARE TO BECOME,
FIXTURES ON THE LAND. Insofar as the Plant,
Equipment and Personal Property and the
Leases and Rents are concerned, this
Instrument is hereby made and declared to be
a security agreement, and a security
interest is hereby granted by Borrower to
Lender encumbering each and every item of
Plant, Equipment and Personal Property and
of Leases and Rents (collectively, the "UCC
Collateral") in compliance with the
provisions of the applicable Uniform
Commercial Code ("UCC"). A financing
statement or statements reciting this
Instrument to be a security agreement,
affecting all of said personal property
aforementioned, shall be executed by
Borrower and Lender and appropriately filed.
The remedies for any violation of the
covenants, terms and conditions of the
security agreement herein contained shall be
(i) as prescribed herein, or (ii) as
prescribed by general law, or (iii) as
prescribed by the specific statutory
consequences now or hereafter enacted and
specified in the applicable UCC, all at
Lender's sole election.
3.7.2. Borrower warrants that (i) Borrower's (that
is, "Debtor's") name, identity or corporate
structure and residence or principal place
of business are as set forth in Subsection
3.7.3 hereof; (ii) Borrower (that is,
"Debtor") has been using or operating under
said name, identity or corporate structure
without change for the time period set forth
in Subsection 3.7.3 hereof; (iii) that
Borrower is duly qualified to do business in
each state in which the Land is located
except where the failure to be so qualified
is not reasonably likely to have a material
adverse affect on the performance, business
operations, property, assets, liabilities,
conditions (financial or otherwise) or
prospects of the Borrower; and (iv) the
location of the Plant, Equipment and
Personal Property is upon the Land and at
the executive office in Atlanta, Georgia or
at Borrower's office in Saddle Brook, New
Jersey. Borrower covenants and agrees that:
(a) Borrower will furnish Lender with notice
of any change in the matters addressed by
clauses (i) or (iii) of this Subsection
3.7.2 within thirty (30) days of the
effective date of any such change; (b)
Borrower will promptly execute any financing
statements or other instruments reasonably
deemed necessary by Lender to prevent any
filed financing statement from becoming
misleading or losing its perfected status;
and (c) and that Borrower will remain
qualified to do business in each state in
which the Land is located.
3.7.3. Upon execution by Lender (where local
practice requires the same), this Instrument
shall constitute a financing statement filed
as a fixture filing under the UCC in the
real estate records of the county or city in
which the Premises is located with respect
to all fixtures which are a part of the
Premises and with respect to any goods or
other personal property that may now be or
hereafter become a fixture. The information
contained in this Subsection 3.7.3 is
provided in order that this Instrument shall
comply with the requirements of the
applicable UCC for instruments to be filed
as financing statements, to perfect the
security interests with respect to fixtures.
The names of the "Debtor" and the "Secured
Party", the identity or corporate structure
and residence or principal place of business
of "Debtor", and the time period for which
"Debtor" has been using or operating under
said name and identity or corporate
structure without change, are as set forth
in Exhibit "B", attached hereto and by this
reference made a part hereof; and the
mailing address of Borrower (that is,
"Debtor"), are as set forth in Section 5.5
of this Instrument; and a statement
indicating the types, or describing the
items, of collateral is set forth
hereinabove. Borrower hereby irrevocably
appoints Lender as its attorney-in-fact,
coupled with an interest, to file with the
appropriate public office on its behalf any
financing, continuation or other statements
signed only by Lender, as secured party, in
connection with the UCC Collateral covered
by this Instrument.
3.7.4. Removal of Equipment. Subject to the
provisions of the Credit Agreement, Borrower
may move any Other Personalty from any
Premises without notice to or consent of
Lender.
3.7.5. Reasonableness of Disposition. Any
disposition pursuant to the UCC of so much
of the UCC Collateral as may constitute
personal property shall be considered
commercially reasonable if made pursuant to
a public sale which is advertised at least
twice in a newspaper in which Sheriff's
sales are advertised in the county where the
Premises is located. Any notice of sale,
disposition or other intended action by
Lender with respect to the UCC Collateral
given to Borrower in accordance with the
provisions hereof at least ten (10) days
prior to such action, shall constitute
reasonable notice to Borrower. The proceeds
of any disposition of the UCC Collateral, or
any part thereof, may be applied by Lender
to the payment of the Combined Obligations
in such priority and proportions as Lender
in its discretion shall deem proper.
3.7.6. Conflict with Credit Agreement. To the
extent any of the provisions of this
Instrument pertaining to Plant, Equipment
and Personal Property are in conflict with
any provisions of the Credit Agreement, the
conflicting provisions of the Credit
Agreement shall govern and control over the
conflicting provisions of the Credit
Agreement.
3.8. Further Assurances; After Acquired Property. At any time, and
from time to time, upon request by Lender, Borrower will make, execute and
deliver or cause to be made, executed and delivered to Lender and, where
appropriate, cause to be recorded and/or filed and from time to time thereafter
to be re-recorded and/or refiled at such time and in such offices and places as
shall be deemed desirable by Lender, any and all such other and further
mortgages, deeds of trust, security agreements, financing statements,
continuation statements, instruments of further assurance, certificates and
other documents as may, in the opinion of Lender reasonably exercised, be
necessary or desirable in order to effectuate, complete, or perfect, or to
continue and preserve (a) the obligation of Borrower under the Combined
Obligations and under this Instrument and (b) the lien and security interests
granted by this Instrument as a first and prior lien (except for the Permitted
Liens) upon and in and to all of the Premises, whether now owned or hereafter
acquired by Borrower. Upon any failure by Borrower so to do, Lender may make,
execute, record, file, re-record and/or refile any and all such mortgages,
security agreements, deeds of trust, financing statements, continuation
statements, instruments, certificates and documents for and in name of Borrower
and Borrower hereby irrevocably appoints Lender the agent and attorney-in-fact
of Borrower so to do. The lien of this Instrument and the security interest
created hereby will, subject to the provisions of Subsection 2.2.2,
automatically attach, without further act, to after-acquired property attached
to and/or used in connection with the operation of the Premises or any part
thereof except for motor vehicles. Without limiting the generality of the
foregoing, Borrower shall use its commercially reasonable, good faith efforts to
obtain the consent of any party whose consent is required in connection with the
assignment of any lease or other agreement pursuant to which consent to the
assignment is required from any or all of the parties thereto [(including,
without limitation, the consent of Xxxx Xxx with respect to the Tarboro Lease)]
and the consent of secured parties under prior or superior security interests in
Other Personalty if such consent is required to the grant of the security
interest in such Other Personalty contained herein.
3.9. Expenses. Borrower will pay or reimburse Lender, upon demand
therefor, for all reasonable actual attorney's fees, costs and expenses incurred
by Lender in any suit, action, legal proceeding or dispute of any kind in which
Lender is made a party or appears as party plaintiff or defendant, affecting the
Combined Obligations secured hereby, this Instrument or the interest created
herein, or the Premises, including, but not limited to, the exercise of the
power of sale contained in this Instrument or the foreclosure of this
Instrument, any condemnation action involving the Premises or any action to
protect the security hereof; and any such amounts paid by Lender shall be
included in the Combined Obligations secured by the lien of this Instrument.
Notwithstanding the foregoing, Lender shall not be entitled to recover any such
expenses in any such suit by Lender against Borrower if such suit results in a
judicial determination in favor of Borrower with respect to the subject matter
thereof or results in a determination of liability against Lender based on an
act of gross negligence or willful misconduct.
3.10. Intentionally Omitted.
3.11. Subrogation. Lender shall be subrogated to all right, title,
equity liens and claims of all persons, firms or corporations to whom Borrower
has paid or pays, or to whom monies are paid, from the proceeds of the Combined
Obligations in the settlement of claims, liens or charges or for the benefit of
Borrower.
3.12. Limit of Validity. If from any circumstances whatsoever
fulfillment of any provision of this Instrument, at the time performance of such
provision shall be due, shall involve transcending the limit of validity
presently prescribed by any applicable usury statute or any other applicable
law, with regard to obligations of like character and amount, then ipso facto
the obligation to be fulfilled shall be reduced to the limit of such validity,
so that in no event shall any exaction be possible under this Instrument that is
in excess of the current limit of such validity, but such obligation shall be
fulfilled to the limit of such validity.
3.13. Intentionally Omitted.
3.14. No Junior Encumbrances. Except as permitted pursuant to the
terms of the Credit Agreement, Borrower shall not further mortgage, encumber or
pledge all or any part of the Premises or of Borrower's interest in the Premises
or any part thereof.
3.15. Additional Covenants and Terms Applicable to the New
York Premises.
3.15.1. Borrower, in compliance with Section 13 of
the Lien Law of the State of New York will,
with respect to the New York Tract, receive
the advances secured by this Instrument and
will hold the right to receive such advances
as a trust fund to be applied first for the
purpose of paying the cost of improvements
and will apply the same first to the cost of
improvements before using any part of the
total of the same for any other purpose.
Borrower will indemnify and hold Lender
harmless against any loss or liability,
reasonable actual cost or expense,
including, without limitation, any
judgments, attorneys' fees, costs of appeal
bonds and printing costs, arising out of or
relating to any proceeding instituted by any
claim alleging a violation by Borrower of
any Section of Article 3-A of the Lien Law
of the State of New York.
3.15.2. With respect to the New York Tract, all
covenants and conditions contained herein,
other than those included in the New York
Statutory Short form of Mortgage, shall be
construed as affording to the Lender rights
additional to, and not exclusive of, the
rights conferred under the provisions of
Section 254 of the Real Property Law of the
State of New York.
3.16. Hazardous Materials. Borrower hereby represents that, except as
clearly identified in the environmental reports delivered to the Lender prior to
the date hereof, to the best knowledge of Borrower, neither Borrower nor any
other person has (i) ever caused or permitted any Hazardous Materials to be
unlawfully placed, held, located or disposed of on, under or at the Land or
Plant, Equipment and Personal Property, or any part thereof or (ii) ever used
the Land or Plant, Equipment and Personal Property or any part thereof as a dump
site or storage site (whether permanent or temporary) for any Hazardous
Materials, and has only stored Hazardous Materials normally used or generated in
the operation and maintenance of a refrigerated warehouse or customer products,
and that any such storage is and has been in compliance with all Environmental
Laws.
(a) Borrower shall pay, defend and indemnify Lender and hold
Lender harmless from and against any and all losses, costs,
liabilities, including strict liability, damages, injuries,
expenses, including reasonable, actual attorneys' fees, costs
of any settlement or judgment and claims of any and every kind
whatsoever (herein collectively "Liabilities") paid, incurred
or suffered by, or asserted against, Lender by any person or
entity or governmental agency for, with respect to, or as a
direct or indirect result of, the presence on or under, or the
escape, seepage, leakage, spillage, discharge, emission or
release from the Land or Plant, Equipment and Personal
Property of any Hazardous Material or any infectious waste
including, without limitation, any Liabilities asserted or
arising under the Environmental Laws regardless of whether or
not caused by or within the control of Borrower, except to the
extent arising out of Lender's gross negligence or willful
misconduct or, with respect to each Tract, any action taken by
Lender after Lender has assumed the ownership or operation of
such Tract, which action is not reasonably necessary to
correct a pre-existing violation of an Environmental Law. If
any claim or action is asserted in writing as to which
indemnification may be sought under this paragraph, Lender
will give prompt written notice to Borrower and Borrower shall
elect within 10 days of receipt of such notice, whether to
assume the defense thereof, including the employment of
counsel reasonably satisfactory to Lender and payment of all
expenses of such defense, with full power to litigate,
compromise or settle the same in its sole discretion
(provided, however, that Borrower shall not admit the
liability of Lender with respect thereto in any such
litigation, compromise or settlement, and any such compromise
or settlement shall include a full release of liability for
Lender at no cost to it).
(b) If Borrower receives any notice of (i) the happening of any
event involving the use (other than of those substances
normally used in the operation and maintenance of a
refrigerated warehouse or customer products), spill, release,
leak, seepage, discharge or cleanup of any Hazardous Substance
on the Land or Plant, Equipment and Personal Property or in
connection with Borrower's operations thereon or (ii) any
complaint, order, citation or notice with regard to air
emissions, water discharges, or any other environmental,
health or safety matter affecting Borrower (an "Environmental
Complaint") from any person or entity (including without
limitation the United States Environmental Protection Agency
(the "EPA")) and such event could reasonably be expected to
have a material adverse effect on Borrower then Borrower shall
immediately notify Lender orally and in writing of said
notice.
(c) If an Event of Default shall have occurred and be continuing,
Lender shall have the right but not the obligation, and
without limitation of Lender's rights under this Instrument,
to enter onto any of the Premises or to take such other
actions as it deems necessary or advisable to clean-up,
remove, resolve or minimize the impact of, or otherwise deal
with, any such Hazardous Material release or Environmental
Complaint following receipt of any notice from any person or
entity (including without limitation the EPA) asserting the
existence of any Hazardous Material or an Environmental
Complaint pertaining to such of the Premises or any part
thereof which, if true, could result in an order, suit or
other action against Borrower and/or which, in the reasonable
opinion of Lender, could have a material adverse effect on
Borrower and jeopardize its security under this Instrument.
All reasonable, actual costs and expenses incurred by Lender
in the exercise of any such rights shall be secured by this
Instrument and shall be payable by Borrower upon demand,
except to the extent arising out of Lender's gross negligence
or willful misconduct or, with respect to each Tract, any
action taken by Lender after Lender has assumed the ownership
or operation of such Tract, which action is not reasonably
necessary to correct a pre-existing violation of an
Environmental Law.
(d) The provisions of this Section 3.16 shall survive any
foreclosure or other enforcement hereof.
ARTICLE IV.
DEFAULT AND REMEDIES
4.1. Events of Default. The terms "Default", "Event of Default", or
"Events of Default", wherever used in this Instrument, shall mean any event
defined as such in the Credit Agreement.
4.2. Acceleration of Maturity. If an Event of Default shall have
occurred and be continuing and shall not have been expressly waived in writing
by Lender, then the Combined Obligations secured hereby shall, by written notice
at the option of Lender, immediately become due and payable without further
notice or demand, time being of the essence of this Instrument and the rate of
interest with respect thereto shall be the "Default Rate" (as defined in the
Credit Agreement); and no omission on the part of Lender to exercise such option
when entitled to do so shall be construed as a waiver of such right.
4.3. Lender's Right to Enter and Take Possession, Operate and Apply
Revenues.
4.3.1. If an Event of Default shall have occurred
and be continuing and shall not have been
expressly waived in writing by Lender, then
Borrower, upon demand of Lender, shall
forthwith surrender to Lender the actual
possession of the Premises and if, and to
the extent, permitted by law, Lender itself,
or by such officers or agents as it may
appoint, may enter and take possession of
all the Premises without the appointment of
a receiver, or an application therefor, and
may exclude Borrower and its agents and
employees wholly therefrom, and may have
joint access with Borrower to the books,
papers and accounts of Borrower. Borrower
waives the posting of any bond in the event
Lender elects to take possession.
4.3.2. If Borrower shall for any reason fail to
surrender or deliver the Premises or any
part thereof after such demand by Lender,
Lender may obtain a judgment or decree
conferring upon Lender the right to
immediate possession or requiring Borrower
to deliver immediate possession of the
Premises to Lender, to the entry of which
judgment or decree Borrower hereby
specifically consents. Borrower will pay to
Lender, upon demand, all reasonable actual
expenses of obtaining such judgment or
decree, including reasonable actual
compensation to Lender, its attorneys and
agents; and all such expenses and
compensation shall, until paid, be secured
by the lien of this Instrument.
4.3.3. Upon every such entering upon or taking of
possession, Lender may hold, store, use,
operate, manage and control the Premises and
conduct the business thereof, and, from time
to time (i) make all necessary and proper
maintenance, repairs, renewals,
replacements, additions, betterments and
improvements thereto and thereon and
purchase or otherwise acquire additional
fixtures, personalty and other property;
(ii) insure or keep the Premises insured;
(iii) manage and operate the Premises and
exercise all the rights and powers of
Borrower to the same extent as Borrower
could in its own name or otherwise with
respect to the same; and (iv) enter into any
and all agreements with respect to the
exercise by others of any of the powers
herein granted Lender, all as Lender from
time to time may determine to be in its best
interest. Lender may collect and receive all
the rents, issues, profits and revenues from
the Premises, including those past due as
well as those accruing thereafter, and,
after deducting (aa) all reasonable actual
expenses of taking, holding, managing and
operating the Premises (including reasonable
actual compensation for the services of all
persons employed for such purposes); (bb)
the cost of all such maintenance, repairs,
renewals, replacements, additions,
betterments, improvements, purchases and
acquisitions; (cc) the cost of such
insurance; (dd) such taxes, assessments and
other similar charges as Lender may at its
option pay; (ee) other proper charges upon
the Premises or any part thereof; and (ff)
the reasonable actual compensation, expenses
and disbursements of the attorneys and
agents of Lender, Lender shall apply the
remainder of the moneys and proceeds so
received by Lender, first to the payment of
accrued interest; second, to the payment and
satisfaction of the Combined Obligations
currently due (whether by acceleration or
otherwise); and third, to the Borrower.
4.3.4. Whenever all that is currently due (whether
by acceleration or otherwise) upon such
Combined Obligations and under any of the
terms, covenants, conditions and agreements
of this Instrument, shall have been paid and
all Events of Default shall have been cured,
Lender shall surrender possession of the
Premises to Borrower, its successors or
assigns. The same right of taking
possession, however, shall exist if any
subsequent Event of Default shall occur.
4.4. Performance by Lender of Defaults by Borrower. If Borrower shall
default in the payment, performance or observance of any term, covenant or
condition of this Instrument, upon notice to Borrower and after the expiration
of any applicable grace or cure period, Lender may, at its option, pay, perform
or observe the same, and all payments made or costs or expenses incurred by
Lender in connection therewith, shall be secured hereby and shall be, without
demand, immediately repaid by Borrower to Lender with interest thereon at a rate
per annum equal to the "Default Rate" (as defined in the Credit Agreement)
calculated on the basis of the actual number of days elapsed over a 360 day
year. Lender shall be the sole judge of the necessity for any such actions and
of the amounts to be paid. Subject to the rights of tenants and other parties
under operating agreements, Lender is hereby empowered to enter and to authorize
others to enter upon the Premises or any part thereof for the purpose of
performing or observing any such defaulted term, covenant or condition without
thereby becoming liable to Borrower or any person in possession holding under
Borrower except for gross negligence or willful misconduct.
4.5. Receiver. If an Event of Default shall have occurred and be
continuing and shall not have been expressly waived by Lender, then Lender, upon
application to a court of competent jurisdiction, shall be entitled (except as
to the South Carolina Premises), to the fullest extent permitted by law, as a
matter of strict right without notice and without regard to the occupancy or
value of any security for the Combined Obligations secured hereby or the
adequacy or inadequacy of such security and without the requirement of any bond
or the solvency of any party bound for its payment and satisfaction, (but, with
respect to the Arkansas Premises, subject to Title 16, Chapter 17 of the
Arkansas Statutes Annotated) to the appointment of a receiver to take possession
of and to operate the Premises and to collect and apply the rents, issues,
profits and revenues thereof. Notwithstanding the right of Lender to the
appointment of a receiver hereunder without notice to Borrower, Lender agrees,
with respect to the Premises other than the South Carolina Premises, to use
reasonable efforts to give Borrower notice of such appointment. As to the South
Carolina Premises, Lender may apply to a court of competent jurisdiction
pursuant to S.C. Code Xxx. 15-65-10, et seq., as amended from time to time, for
the appointment of a receiver to take possession of and to operate the South
Carolina Premises and to collect and apply the rents, issues, profits and
revenues thereof. As to the South Carolina Tract, Lender agrees to notify
Borrower of its application for the appointment of a receiver at least four (4)
days prior to such appointment, unless the court to which application is made
prescribes a shorter time. The receiver shall have all of the rights and powers
permitted under the laws of the state wherein the Land is situated. Borrower
will pay to Lender upon demand all expenses, including receiver's fees,
reasonable actual attorney's fees, costs and agent's compensation, incurred
pursuant to the provisions of this Section 4.5, and all such reasonable actual
expenses shall be secured by this Instrument.
4.6. Enforcement. If an Event of Default shall have occurred and shall
be continuing and shall not have been expressly waived by Lender, concerning
enforcement by judicial foreclosure or exercise of private power of sale, Lender
shall have the following options:
4.6.1. With respect to the Alabama Premises, this
subsection shall apply. Lender, its agents
or its attorneys, at its option, may sell
the Alabama Premises or any part of the
Alabama Premises before the entrance of the
courthouse in the counties where the Alabama
Premises is located, at public outcry for
cash or credit, after first giving notice of
the time, place and terms of said sale by
publication once a week for three (3)
successive weeks prior to said sale in the
newspaper customarily used for such notices
published in said county and state in which
the Alabama Premises is located; and upon
receipt of the purchase money, Lender, its
agents or its attorneys, or any person
conducting said sale for it, is authorized
to execute to the purchaser at said sale a
deed to the property so purchased in the
name of Borrower, and such purchaser shall
not be held to inquire as to the application
of the proceeds of such sale. At said
foreclosure sale, the Alabama Premises may
be offered for sale and sold as a whole or
in part as Lender may elect. The presence of
any portion of the property constituting the
Alabama Premises at the place of sale is
expressly waived.
4.6.2. With respect to the Arkansas Premises, this
subsection shall apply. Lender may, with or
without entry, sell the Arkansas Premises,
or any part thereof, at public to the
highest bidder for cash at the front door of
the County Courthouse in the county or
counties in which the Arkansas Premises is
located, Public Notice of the time and place
of said sale having been given for twenty
(20) days by advertising in some newspaper
published in said county or counties by at
least three (3) insertions, or by notices
posted in five (5) public places in said
county or counties, at which sale the Lender
may bid and purchase as any third person
might do. Borrower hereby authorizes lender
to convey the Arkansas Premises to anyone
purchasing at said sale and to convey an
absolute title thereto, and the recitals of
such instrument of conveyance shall be taken
as prima facie true. Lender may exercise
such other or additional remedies as may be
available at law or in equity, including
without limitation judicial foreclosure.
4.6.3. With respect to the California Premises,
this subsection shall apply. If an Event of
Default shall have occurred and be
continuing, Lender, in addition to any other
remedy of process available to Lender, may
declare all sums secured by this Instrument
immediately due and payable and by
delivering to Trustee a written declaration
of default and causing to be filed for
record a written notice of default and
election to sell and shall deposit with
Trustee copies of this Instrument and the
Combined Documents. After the lapse of such
time as may be required by law following the
filing for record of such Notice of Default,
and after giving all such notices as may be
required by law, Trustee, without demand on
Borrower, may sell the California Premises,
either as a whole or in separate parcels and
in such order as it may determine, by public
auction to the highest bidder for cash in
lawful money of the United States, payable
at the time of sale or for the equivalent of
cash, as so determined by Trustee in its
sole discretion. If the Combined Obligations
are additionally secured by real property in
California which is not subject to this
Instrument, Trustee may sell any property so
given as security therefor, which it is
authorized to sell either in whole or in
separate parcels and in such order as it may
determine. Trustee may postpone sale of all
or any portion of the California Premises by
public announcement at the time and place
fixed for such sale and from time to time
thereafter may postpone such sale by public
announcement at a time fixed by the
preceding postponement. Any person may bid
at such sale. Following such sale, Trustee
shall execute and deliver to the purchaser
its deed, without covenant or warranty,
express or implied. The Trustee's deed shall
recite the facts showing that the sale was
conducted in compliance with all the
requirements of law and this Instrument,
which recital shall be conclusive evidence
thereto in favor of bona fide purchasers and
encumbrances for value. Borrower hereby
constitutes and appoints Trustee the agent
and attorney-in-fact of Borrower to make
such sale and conveyance, and thereby to
divest Borrower of all right, title or
equity that Borrower may have in and to the
California Premises and to vest the same in
the purchaser or purchasers at such sale or
sales, and all the acts and doings of said
agent and attorney-in fact that are recitals
in said conveyance or conveyances as to
facts essential to a valid sale shall be
binding upon Borrower. The aforesaid power
of sale and agency hereby granted are
coupled with an interest and are irrevocable
by death or otherwise, are granted as
cumulative of the other remedies provided
hereby or by law for collection of the
Combined Obligations and shall not be
exhausted by one exercise thereof but may be
exercised until full payment of the Combined
Obligations.
4.6.4. With respect to the Georgia Premises, this
subsection shall apply. Lender, at its
option, may sell the Georgia Premises or any
part of the Georgia Premises at public sale
or sales before the door of the courthouse
of the county or counties in which the
Georgia Premises or any part of the Georgia
Premises is situated, to the highest bidder
for cash, in order to pay the Combined
Obligations secured hereby and accrued
interest thereon and insurance premiums,
liens, assessments, taxes and charges,
including utility charges, if any, with
accrued interest thereon, and all expenses
of the sale and of all proceedings in
connection therewith, including reasonable
actual attorney's fees, if incurred, after
advertising the time, place and terms of
sale once a week for four (4) weeks
immediately preceding such sale (but without
regard to the number of days) in a newspaper
in which Sheriff's sales are advertised in
said county or counties. At any such public
sale, Lender may execute and deliver to the
purchaser a conveyance of the Georgia
Premises or any part of the Georgia Premises
in fee simple or to the full extent of any
leasehold estate, as the case may be, with
full warranties of title and to this end,
Borrower hereby constitutes and appoints
Lender the agent and attorney-in-fact of
Borrower to make such sale and conveyance,
and thereby to divest Borrower of all right,
title or equity that Borrower may have in
and to the Georgia Premises and to vest the
same in the purchaser or purchasers at such
sale or sales, and all the acts and doings
of said agent and attorney-in-fact are
hereby ratified and confirmed and any
recitals in said conveyances as to facts
essential to a valid sale shall be binding
upon Borrower.
4.6.5. With respect to the Indiana Premises, this
subsection shall apply. [TO BE PROVIDED BY
INDIANA LOCAL COUNSEL]
4.6.6. With respect to the Kansas Premises, this
subsection shall apply. [TO BE PROVIDED BY
KANSAS LOCAL COUNSEL]
4.6.7. With respect to the Missouri Premises, this
subsection shall apply. Trustee, or, in the
case of his death or disability, or his
neglect or refusal to act, then a successor
appointed by the Lender, may, at the option
and request of the Lender, proceed to sell
the Missouri Premises, or any part thereof,
at public venue or out-cry, at the front
door of the Court House in the City of
Xxxxxxxx, County of Saline, State of
Missouri, to the highest bidder, for cash,
after first giving the notice required by
the laws of Missouri in respect to
exercising power of sale under mortgages and
deeds of trust then in effect, and upon such
sale shall execute a Trustee's deed or deed
in fee simple of the property sold, to
purchaser or purchasers thereof, and shall
receive the proceeds thereof, out of which
the Trustee shall pay first, the cost and
expense of executing this trust, including
lawful compensation of the Trustee; and
next, shall repay to any person or persons
who may or shall, under the covenants
hereinabove set forth, have advanced or paid
any money for taxes, mechanics' liens,
insurance or other obligations, as above
provided, all sums so by said persons
advanced and not already repaid, together
with interest thereon at the rate of
interest per annum set forth in the Credit
Agreement, from the date of such advance,
until the date of payment; and, next in full
payment of all Combined Obligations secured
hereby, together with the interest accrued
thereon, and next the amount due on junior
encumbrances, and the balance to Borrower.
Any statement or recital of fact in such
deed, in relation to the non-payment of the
Combined Obligations, the existence of the
Combined Obligations, notice of
advertisement, sale and receipt of money
shall be presumptive evidence of the truth
of such statements or recital. Each time it
shall become necessary to insert an
advertisement for foreclosure and the sale
is not had, then the Trustee shall be
entitled to receive the sum of $25.00 for
services and the amount of all advertising
charges from Borrower. The power of sale
hereunder shall not be exhausted by one or
more such sales (or attempts to sell) as to
all or any portion of the Missouri Premises
remaining unsold, but shall continue
unimpaired until all of the Missouri
Premises shall have been sold or until the
Combined Obligations shall have been paid in
full.
4.6.8. With respect to the New York Premises, this
subsection shall apply. Lender, with or
without entry, personally or by its agents
or attorneys, insofar as applicable, may:
(a) sell the New York Premises to the
extent permitted and pursuant to the
procedures provided by law, and all
estate, right, title and interest,
claim and demand therein and right
of redemption thereof, at one or
more sales as an entity or in
parcels, and at such time and place
and upon such terms and after such
notice thereof as may be required or
permitted by law; or
(b) institute proceedings for the
complete or partial foreclosure of
this Instrument, or
(c) take such steps to protect and
enforce its rights whether by
action, suit or proceeding in equity
or at law for the specific
performance of any covenant,
condition or agreement in this
Instrument or the Combined
Obligations or in any other
agreement relating thereto, or in
aid of the execution of any power
herein granted, or for any
foreclosure hereunder, or for the
enforcement of any other appropriate
legal or equitable remedy or
otherwise as Lender shall elect.
Lender (or any officer of any court
empowered to do so) may adjourn from time to
time any sale by it to be made under or by
virtue of this Instrument by announcement at
the time and place appointed for such sale
or for such adjourned sale or sales; and
except as otherwise provided by any
applicable provision of law, Lender, without
further notice or publication, may make such
sale at the time and place to which the same
shall be so adjourned. Upon the completion
of any sale or sales made by Lender under or
by virtue of this Instrument, Lender, or an
officer of any court empowered to do so,
shall execute and deliver to the accepted
purchaser or purchasers, a good and
sufficient instrument or good and sufficient
instruments, conveying, assigning and
transferring all estate, right, title and
interest in and to the New York Premises
sold. Lender hereby is irrevocably appointed
the true and lawful attorney of Borrower, in
its name and stead, to make all necessary
conveyances, assignments, transfers and
deliveries of the New York Premises or any
portion thereof and rights so sold, and for
that purpose Lender may execute all
necessary instruments of conveyance,
assignment and transfer, and may substitute
one or more persons with like power,
Borrower hereby ratifying and confirming all
that its said attorney or such substitute or
substitutes shall lawfully do by virtue
hereof. Nevertheless, Borrower, if so
requested by Lender, shall ratify and
confirm any such sale or sales by executing
and delivering to Lender or to such
purchaser or purchasers all such instruments
as may be advisable, in the judgment of
Lender, for the purpose, and as may be
designated in such request. Any such sale or
sales made under or by virtue of this
Instrument, whether made under the power of
sale herein granted, under or by virtue of
judicial proceedings or of a judgment or
decree of foreclosure and sale, shall
operate to divest all estate, right, title,
interest, claim and demand whatsoever,
whether at law or in equity, of Borrower in
and to the properties and rights so sold,
and shall be a perpetual bar both at law and
in equity against Borrower and against any
and all persons claiming or who may claim
the same, or any part thereof, from, through
or under Borrower. In the event of any sale
made under or by virtue of this Instrument
(whether made under the power of sale herein
granted or under or by virtue of judicial
proceedings or of a judgment or decree of
foreclosure and sale), the entire principal
of, and interest on, the Combined
Obligations, if not previously due and
payable, and all other sums required to be
paid by Borrower pursuant to this Instrument
immediately thereupon shall, anything in the
Combined Documents or this Instrument to the
contrary notwithstanding, at the option of
Lender become due and payable. In the case
of any foreclosure sale of the New York
Premises pursuant to this Instrument, the
New York Premises or so much of said New
York Premises as then may be affected by
this Instrument may be sold as one parcel.
4.6.9. With respect to the North Carolina Premises,
this subsection shall apply. Should Lender
elect to foreclose by exercise of the power
of sale herein contained, Lender shall
notify Trustee and shall deposit with
Trustee copies of this Instrument, the Note
and such receipts and evident of
expenditures made and secured hereby as
Trustee may require.
Upon application of Lender, it shall be
lawful for and the duty of Trustee, and
Trustee hereby is authorized and empowered
to expose to sale and to sell the North
Carolina Premises (either as a whole or in
separate parcels and in such order as the
Trustee shall determine) at public auction
for cash, after having first complied with
all applicable requirements of North
Carolina law with respect to the exercise of
powers of sale contained in deeds of trust
and upon such sale. Trustee shall convey
title to the purchaser in fee simple. After
retaining from the proceeds of such sale
just compensation for Trustee's services and
all expenses incurred by Trustee, including,
without limitation, a Trustee's commission
not exceeding five percent of the bid and
reasonable actual attorney's fees for legal
services actually performed, Trustee shall
apply the residue of the proceeds first to
the payment of all sums expended by Lender
under the terms of this Instrument; second,
to the payment of the Combined Obligations
and interest thereof secured hereby; and the
balance, if any, shall be paid to Borrower.
Borrower agrees that in the event of sale
hereunder, Lender shall have the right to
bid. Trustee may require the successful
bidder at any sale to deposit immediately
with Trustee cash or certified check in an
amount not to exceed ten percent (10%) of
the bid, provided notice of such requirement
is contained in the advertisement of the
sale. The bid may be rejected if the deposit
is not immediately made and thereupon the
next highest bidder may be declared to be
the purchaser. Such deposit shall be
refunded in case a resale is had; otherwise,
it shall be applied to the purchase price.
If the Plant, Equipment and Personal
Property is sold hereunder, it need not be
at the place of sale; the published notice,
however, shall state the time and place
where such Plant, Equipment and Personal
Property may be inspected prior to sale. If
a foreclosure proceeding is commenced by the
Trustee but not completed, the Trustee's fee
will be 2% of the fair market value of the
North Carolina Premises involved in such
foreclosure if the termination occurs prior
to the first public auction sale and not
more than 3% of the fair market value of the
North Carolina Premises involved in such
foreclosure if the termination occurs after
the first public auction sale.
4.6.10. With respect to the Oklahoma Premises, this
subsection shall apply. Lender may,
individually, or by its authorized agent,
attorney or representative, with or without
further notice, as Lender may elect, in
addition to and not by way of any exclusion,
waiver, election or limitation of any other
of Lender's remedies at law or in equity:
(a) Make any payments or take any other
actions Lender deems necessary or
desirable to cure the Event of
Default or conserve the Oklahoma
Premises as set forth in Section
4.4;
(b) Enter upon and take possession of
the Oklahoma Premises, in whole or
in part, as set forth in Section
4.3; or
(c) Proceed to foreclose this Instrument
through judicial proceedings, and in
the event of judicial foreclosure,
the court shall direct the sale of
the Oklahoma Premises, exclusive of
all personal property, to be with or
without appraisement, as Lender may
elect at the time judgment is
finally rendered; or, alternatively,
pursuant to the power of sale herein
granted Lender, Lender may sell the
Oklahoma Premises (with or without
the personal property) upon such
terms, conditions, and in as many
parcels, as the person conducting
the sale may, in his sole
discretion, elect; the proceeds of
any judicial or non-judicial sale of
the Oklahoma Premises shall be
applied: first, to the payment of
actual expenses of the sale and/or
action, court costs, inclusive of
Lender's reasonable actual attorneys
fees, for upkeep, security,
insurance, utilities and maintenance
of the Oklahoma Premises pending
sale or the action, and abstracting
expense; second, to the payment of
the Combined Obligations, and third,
the balance thereafter remaining, if
any, to abide the further order of
the court or to Borrower or order.
4.6.11. With respect to the Pennsylvania Premises,
this subsection shall apply. [TO
BE PROVIDED BY PENNSYLVANIA LOCAL COUNSEL]
4.6.12. With respect to the South Carolina Premises,
this subsection shall apply. Lender, at its
option, may (a) commence proceedings to
collect sums due hereunder, foreclose this
Instrument and sell the real property
portion of the South Carolina Premises: At
the foreclosure, Lender shall be entitled to
bid and to purchase the real property
portion of the South Carolina Premises and
shall be entitled to apply the Combined
Obligations, or any portion thereof, in
payment for the real property portion of the
South Carolina Premises; (b) collect and
receive all the rents, issues, profits and
revenues from the South Carolina Premises,
including those past due as well as those
accruing thereafter; (c) with respect to the
personalty that is located on the South
Carolina Premises, exercise all rights,
remedies and powers available to secured
parties under the Uniform Commercial Code in
force in the State of South Carolina; and
(d) exercise any other rights or remedies
provided in this Instrument or by law, all
of which rights and remedies may be
exercised by Lender independently,
simultaneously or consecutively in any order
without being deemed to have waived any
right or remedy previously or not yet
exercised.
Borrower agrees that legal process in
connection with the foreclosure of the debt
secured hereby may be made by written notice
to Lender pursuant to Section 5.5. Such
process shall be deemed to be personally
served on Borrower as of the date of actual
receipt thereof or the date of the first
attempted delivery thereof by the U.S. Mail.
Such method of service of process shall be
in addition to all other methods permitted
by law.
4.6.13. With respect to the Tennessee Premises, this
subsection shall apply. Trustee, or, in the
case of his death or disability, or neglect
or refusal to act, then a successor
appointed by the Lender, may, at the option
and request of Lender, enter and take
possession of the Tennessee Premises and,
before or after such entry, may advertise
the sale of the Tennessee Premises for
twenty-one (21) days by three (3) weekly
notices in any newspaper published in Shelby
County, Tennessee regularly containing
Sheriff's notices or other legal notices,
and sell the Tennessee Premises for cash to
the highest bidder, free from equity of
redemption, any right of statutory
redemption as provided under any applicable
Tennessee statute including under X.X.X.xx.
66-8-101, homestead, dower, elective share
and all other exemptions, all of which are
hereby expressly waived by Borrower, and
Trustee shall execute a conveyance to the
purchaser in fee simple, and deliver
possession to the purchaser which the
Borrower covenants shall be given without
obstruction, hindrance or delay. Lender may
become the purchaser at any sale under this
conveyance. The proceeds of any sale shall
be applied as follows: first, to the payment
of the expenses of making, maintaining, and
executing this trust, the protection of the
Tennessee Premises, including the expense of
any litigation or attorneys' fees and the
usual commissions to the Trustee; second, to
the payment of the Combined Obligations,
without preference or priority of any part
over any other part, and third, should there
by any surplus, the Trustee will pay it to
the Borrower or order. In the event of the
death, refusal, or of inability for any
cause on the part of the Trustee named
herein or of the successor trustees, to act
at any time under the foregoing powers and
trusts, or for any other reason satisfactory
to Lender, Lender is authorized either in
its own name or through an attorney or
attorneys in fact appointed for that purpose
by written instrument duly registered, to
name and appoint a successor or successors
to execute this trust, such appointment to
be evidenced by writing, duly acknowledged;
and when such writing shall have been
registered, the substituted trustee shall
thereupon be vested with all the right and
title, clothed with all the power of the
Trustee named herein and such like power of
substitution shall continue so long as any
part of the debt secured hereby remains
unpaid. The sale may be adjourned by the
Trustee at the Court House on the date the
sale is originally set and may be reset at a
later date by republication. Upon a sale
under this Instrument or pursuant to an
order in a judicial proceeding, the
Tennessee Premises or any part may be sold
in one parcel, and one or more exercises of
the powers herein granted shall not
extinguish the power unless the entire
premises are sold or the Combined
Obligations are paid in full.
4.6.14. With respect to the Virginia Premises, this
subsection shall apply. Trustee may take
possession of the Virginia Premises, and
proceed to sell the same at auction at the
Virginia Premises or at such other place in
the city or county in which the Virginia
Premises or the greater part thereof lies,
or in the corporate limits of any city
surrounded by or contiguous to such county,
or in the case of annexed land in the county
of which the Virginia Premises was formerly
a part, as Trustee may select upon such
terms and conditions as Trustee may deem
best, after first advertising the time,
place and terms of sale in at least three
(3) consecutive issues, in advance of the
date of such sale, of a newspaper having
general circulation in the county or city in
which the Virginia Premises or some portion
thereof is located. The power of sale herein
granted may be exercised at different times
as to different portions of the Virginia
Premises, and if for any reason any
executory contract of sale shall not be
performed, then new contracts may be made
with respect to the same portion of the
Virginia Premises (with or without other
portions). If Trustee deems it best for any
reason to postpone or continue the sale at
any time or from time to time, they may do
so, in which event Trustee shall advertise
the postponed sale in the same manner as the
original advertisement of sale provided for
hereinabove. Full power and authority is
hereby expressly granted and conferred upon
Trustee to make, execute and deliver all
necessary deeds of conveyance for the
purpose of vesting in the purchaser or
purchasers complete and entire legal and
equitable title to the Virginia Premises, or
the portion thereof sold, and the recitals
therein shall be received in all courts of
law and equity as prima facie evidence of
the matters therein stated; and at such sale
Lender may become a purchaser, and no
purchaser shall be required to see to the
proper application of the purchase money.
4.6.15. Lender may, in addition to and not in
abrogation of the rights covered under this
Section 4.6, either with or without entry or
taking possession as herein provided or
otherwise, proceed by a suit or suits in law
or in equity or by any other appropriate
proceeding or remedy granted or conferred by
applicable statutes (i) to enforce payment
of the Combined Obligations or the
performance of any term, covenant, condition
or agreement of this Instrument or any other
right, and (ii) to pursue any other remedy
available to it, all as Lender shall
determine most effectual for such purposes.
4.7. Purchase by Lender. Upon any foreclosure sale, either judicially
or by private power of sale, Lender may bid for and purchase the Premises and
shall be entitled to apply all or any part of the Combined Obligations as a
credit to the purchase price.
4.8. Application of Proceeds of Sale. Except as in hereinabove
expressly set forth, in the event of a foreclosure sale of the Premises, either
judicially or by private power of sale, the proceeds of said sale shall be
applied, unless applicable statutes shall specify otherwise, first, to the
expenses of such sale and of all proceedings in connection therewith and the
reasonable actual expenses of foreclosing this Instrument, including reasonable
actual attorney's and trustee's fees or commissions (based on the collateral
foreclosed upon by such Trustee), then to payment of the Combined Obligations in
such order as Lender shall elect, and finally the remainder, if any, shall be
paid as required by law, or in the absence of any provision therefor in the law,
shall be paid to the parties entitled thereto; provided, however that as to such
remainder, Lender shall not be bound by any inheritance, devise, conveyance,
assignment or lien of or upon Borrower's equity, without actual notice thereof
prior to distribution.
4.9. Borrower as Tenant Holding Over. In the event of any such
foreclosure sale by Lender, Borrower shall be deemed a tenant holding over and
shall forthwith deliver possession to the purchaser or purchasers at such sale
or be summarily dispossessed according to provisions of law applicable to
tenants holding over. With respect to the New York Tract, Borrower or any other
party to the foreclosure action or anyone claiming through Borrower who shall
remain on any portion thereof following a foreclosure sale shall not be deemed a
tenant holding over but shall be subject to removal by writ of assistance or as
otherwise permitted by law.
4.10. Waiver of Appraisement, Valuation Stay, Extension and Redemption
Laws. Borrower agrees to the full extent permitted by law, that in case of an
Event of Default on the part of Borrower hereunder, neither Borrower nor anyone
claiming through or under it shall or will set up, claim or seek to take
advantage of any appraisement, valuation, stay, extension, homestead, exemption,
redemption (except, as to redemption only, in New York and Oklahoma) or
moratorium laws, statutory or otherwise now or hereafter in force, in order to
prevent or hinder the enforcement or foreclosure of this Instrument, or the
absolute sale of the Premises, or the final and absolute putting into possession
thereof, immediately after such sale, of the purchasers thereat, and Borrower,
for itself and all who may at any time claim through or under it, hereby waives
to the full extent that it may lawfully so do, the benefit of all such laws, and
any and all right to have the assets comprised in the security intended to be
created hereby marshaled upon any foreclosure of the lien hereof, provided,
however, that nothing herein shall constitute a waiver of Official Code of
Georgia Annotated Section 4-14-161 or 45 O.S. 1981 ss. 18 or any other provision
requiring a valuation of property sold at a foreclosure sale as a condition to
the granting of a deficiency judgment. In addition, and without limiting the
foregoing, Borrower hereby, to the full extent permitted by law, releases all
right of appraisement hereunder and also releases unto Lender all rights of
redemption under the laws of Arkansas, including particularly all rights or
redemption under the Act of May 8, 1899.
4.11. Leases. Lender, at its option, is authorized to foreclose this
Instrument subject to the rights of any tenants of the Premises, and the failure
to make any such tenants parties to any such foreclosure proceedings and to
foreclose their rights will not be, nor be asserted to be by Borrower, a defense
to any proceedings instituted by Lender to collect the Combined Obligations
secured hereby.
4.12. Discontinuance of Proceedings and Restoration of the Parties. In
case Lender shall have proceeded to enforce any right, power or remedy under
this Instrument by foreclosure, entry or otherwise, and such proceedings shall
have been discontinued or abandoned for any reason, then and in every such case
Borrower and Lender shall be restored to their former positions and rights
hereunder, and all rights, powers and remedies of Lender shall continue as if no
such proceeding had been taken.
4.13. Remedies Cumulative. No right, power or remedy conferred upon or
reserved to Lender by this Instrument is intended to be exclusive of any other
right, power or remedy or exclusive of any other right, power or remedy
conferred by statute, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and
remedy given hereunder or now or hereafter existing at law or in equity or by
statute.
4.14. Waiver.
4.14.1. No delay or omission of Lender to exercise
any right, power or remedy accruing upon any
default or Event of Default shall exhaust or
impair any such right, power or remedy or
shall be construed to be a waiver of any
such default, or acquiescence therein; and
every right, power and remedy given by this
Instrument to Lender may be exercised from
time to time and as often as may be deemed
expedient by Lender. No consent or waiver,
expressed or implied, by Lender to or of any
breach or default by Borrower in the
performance of the obligations hereunder or
any Event of Default shall be deemed or
construed to be a consent or waiver to or of
any other breach or default in the
performance of the same or any other
obligations of Borrower hereunder or any
Event of Default. Failure on the part of
Lender to complain of any act or failure to
act or to declare an Event of Default,
irrespective of how long such failure
continues, shall not constitute a waiver by
Lender of its rights hereunder or impair any
rights, powers or remedies consequent on any
breach or default by Borrower. Lender may,
at any time, or from time to time, renew or
extend this Instrument, or alter or modify
the same in any way, or waive any of the
terms, covenants or conditions hereof in
whole or in part, and may release any
portion of the Premises or any other
security, and grant such extensions and
indulgences in relation to the Combined
Obligations as Lender may determine without
the consent of any junior lienor or
encumbrancer and without any obligation to
give notice of any kind thereto and without
in any manner affecting the priority of the
lien hereof on any part of the Premises.
4.14.2. If Lender (i) grants forbearance or an
extension of time for the payment or
satisfaction of the Combined Obligations;
(ii) takes other or additional security for
the payment of the Combined Obligations;
(iii) waives or does not exercise any right
granted herein or in any of the Combined
Obligations; (iv) releases any part of the
Premises from the lien of this Instrument or
otherwise changes any of the terms,
covenants, conditions or agreements of any
of the Combined Obligations; (v) consents to
the filing of any map, plat or replat
affecting the Premises; (vi) consents to the
granting of any easement or other right
affecting the Premises; or (vii) makes or
consents to any agreement subordinating the
lien hereof, any such act or omission shall
not release, discharge, modify, change or
affect the original liability under any of
the Combined Obligations or any other
obligation of Borrower or any subsequent
purchaser of the Premises or any part
thereof, or any maker, co-signer, endorser,
surety or guarantor; nor shall any such act
or omission preclude Lender from exercising
any right, power or privilege herein granted
or intended to be granted in the event of
any default then made or of any subsequent
default; nor, except as otherwise expressly
provided in an instrument or instruments
executed by Lender, shall the lien of this
Instrument be altered thereby. In the event
of the sale or transfer by operation of law
or otherwise of all or any part of the
Premises, Lender, without notice, is hereby
authorized and empowered to deal with any
such vendee or transferee with reference to
the Premises or the Combined Obligations, or
with reference to any of the terms,
covenants, conditions or agreements hereof,
as fully and to the same extent as it might
deal with the original parties hereto and
without in any way releasing or discharging
any liabilities, obligations or
undertakings.
4.15. Suits to Protect the Premises. Lender shall have power to
institute and maintain such suits and proceedings as it may reasonably deem
expedient to preserve or protect the perfection and/or priority of its lien
against the Premises and in the rents, issues, profits and revenues arising
therefrom.
4.16. Lender May File Proofs of Claim. In the case of any
receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment,
composition or other proceedings affecting Borrower, its creditors or its
property, Lender, to the extent permitted by law, shall be entitled to file such
proofs of claim and other documents as may be necessary or advisable in order to
have the claims of Lender allowed in such proceedings for the entire amount due
and payable by Borrower under this Instrument at the date of the institution of
such proceedings and for any additional amount which may become due and payable
by Borrower hereunder after such date.
4.17. Multiple Sales. In any judicial proceedings to foreclose this
Instrument or nonjudicial exercise of power of sale or any other private or
public sale, the Premises, at the option of Lender, may be sold in whole or in
part and in the event of such multiple sales, the Combined Obligations shall not
be merged into any foreclosure sale or foreclosure judgment so long as there
shall remain outstanding any amount secured by this Instrument. Such a
foreclosure judgment in any state in which the Land is located shall not
operate, in and of itself, as a release of the other property hereby secured or
a waiver of Lender's right to elect any other remedy available to it hereunder.
ARTICLE V.
MISCELLANEOUS PROVISIONS
5.1. Successors and Assigns. This Instrument shall inure to the
benefit of and be binding upon Borrower, Lender and Trustee or their respective
heirs, executors, legal representatives, successors and assigns. Whenever a
reference is made in this Instrument to Borrower, Lender or Trustee such
reference shall be deemed to include a reference to the heirs, executors, legal
representatives successors and assigns of Borrower, Lender or Trustee.
5.2. Terminology. All personal pronouns used in this Instrument
whether used in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural, and vice versa. Titles and
Articles are for convenience only and neither limit nor amplify the provisions
of this Instrument itself, and all references herein to Articles, Sections or
Subsections shall refer to the corresponding Articles, Sections or Subsections
of this Instrument unless specific reference is made to such Articles, Sections
or Subsections of another document or instrument.
5.3. Severability. If any provision of this Instrument or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Instrument and the
application of such provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
5.4. Applicable Law. (A) THIS INSTRUMENT WAS NEGOTIATED IN THE STATE
OF NEW YORK, AND MADE BY LENDER AND ACCEPTED BY BORROWER IN THE STATE OF NEW
YORK, AND THE OBLIGATIONS WERE CREATED AND SECURED IN THE STATE OF NEW YORK,
WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND
TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, THIS INSTRUMENT AND THE OBLIGATIONS ARISING HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO THE CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED
STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE CREATION,
PERFECTION, AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS CREATED PURSUANT
HERETO AND PURSUANT TO THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND
CONSTRUED ACCORDING TO THE LAW OF THE STATE IN WHICH THE PREMISES (OR THE
APPLICABLE PORTION THEREOF) ARE LOCATED, IT BEING UNDERSTOOD THAT, TO THE
FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW
YORK SHALL GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN
DOCUMENTS AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. TO THE
FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY
WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS
INSTRUMENT AND THE NOTE, AND THIS INSTRUMENT AND THE NOTE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER
ARISING OUT OF OR RELATING TO THIS INSTRUMENT MAY AT LENDER'S OPTION BE
INSTITUTED IN ANY FEDERAL OR STATE COURT IN XXX XXXX XX XXX XXXX, XXXXXX XX XXX
XXXX, AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE
BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR
PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING, BORROWER DOES HEREBY DESIGNATE AND
APPOINT VORNADO REALTY TRUST, 00 XXXX XXXX, XXXXX XX, XXXXXX XXXXX, XXX XXXXXX
00000 AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF
ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING
IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN
EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER, IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT
NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II)
MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT
WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL
PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN
OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
5.5. Notices. All notices, requests and demands to or upon the
respective parties hereto, and all responses thereto, shall be deemed to have
been properly given or served when personally delivered or received after being
deposited in the mail, certified mail, return receipt requested, postage
prepaid, or delivered to a nationally recognized overnight courier service, with
all delivery charges paid or provided for, addressed to the addresses set forth
below. All notices, requests and demands, and all responses thereto, shall be
effective upon receipt thereof. So long as Borrower or Lender has designated
more than one address pursuant hereto, any notice, request or demand to such
party, and any response thereto, shall be effective from the time of first
delivery to the address of such party designated by it as its primary address.
Rejection or other refusal to accept or the inability to deliver because of
changed address of which no notice was given shall be deemed to be receipt of
the notice, demand or request sent. By giving at least 30 days written notice
hereof, Borrower or Lender shall have the right from time to time and at any
time during the term of this Agreement to change their respective addresses and
each shall have the right to specify as its address any other address within the
continental United States of America. For the purpose of this Agreement, the
following addresses apply:
Borrower:
Americold Corporation
---------------------
Portland, Oregon
Attn: Chief Executive Officer
(primary address)
and
Vornado Realty Trust
00 Xxxx Xxxx, Xxxxx XX
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Attn: President
and
Vornado Realty Trust
00 Xxxx Xxxx, Xxxxx XX
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Attn: Chief Financial Officer
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx, Esq.
Lender:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: _______________
(primary address)
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Trustee:
with respect to the California Premises:
==========================
--------------------------
with respect to the Missouri Premises:
==========================
--------------------------
with respect to the North Carolina Premises:
==========================
--------------------------
with respect to the Tennessee Premises:
==========================
--------------------------
with respect to the Virginia Premises:
==========================
--------------------------
5.6. Replacement of Documents. Upon receipt of evidence reasonably
satisfactory to Borrower or Lender of the loss, theft, destruction or mutilation
of any of the Combined Documents and, in the case of any such loss, theft or
destruction, upon delivery of an indemnity agreement reasonably satisfactory to
Borrower or Lender or, in the case of any such mutilation, upon surrender and
cancellation of the appropriate document, the other party or parties will
execute and deliver, in lieu thereof, a replacement document or instrument
supplied by Borrower or Lender, identical in form and substance and dated as of
the date of the document being replaced and upon such execution and delivery of
such replacement document all references in this Instrument to the document
being replaced shall be deemed to refer to such replacement document.
5.7. Assignment. This Instrument is assignable by Lender under the
conditions set forth in Section 10.27 of the Credit Agreement, and any
assignment hereof by Lender shall operate to vest in the assignee all rights and
powers herein conferred upon and granted to Lender.
5.8. Time of the Essence. Time is of the essence with respect to each
and every covenant, agreement and obligation of Borrower under this Instrument,
each of the other Combined Documents and any and all other instruments now or
hereafter evidencing, securing or otherwise relating to the Combined
Obligations.
5.9. Counterparts. This Instrument may be executed in any number of
counterparts, each of which is deemed to be an original document, all of which
taken together shall constitute one and the same Instrument.
5.10. No Obligation to Marshal Assets. Notice is hereby given that no
holder of any mortgage, deed of trust, deed to secure debt, lien, security
interest or other encumbrance affecting all or any portion of the Premises,
which is inferior to the lien, security interest and security title of the
Instrument shall have the right or privilege to require Lender to marshal
assets.
5.11. Consent of Lender. Lender, by its acceptance of this Instrument
agrees to be bound by the terms and conditions of this Instrument.
5.12. Appointment of Successor Trustee.
5.12.1. California Premises.
5.12.2. Missouri Premises. The Trustee with respect
to the Missouri Premises may resign at any
time by written instrument to that effect,
delivered to Lender. By instrument properly
recorded, acknowledged and filed in the
Office of the Recorder of the Deeds for
Saline County, Missouri, Lender may (for any
reason satisfactory to Lender and whether or
not the Trustee with respect to the Missouri
Premises has resigned by an instrument
placed of record or otherwise) appoint a
successor trustee, who, from and after the
filing of such appointment shall become
vested with title to the Missouri Premises
in trust and shall have all of the powers,
authorities and duties vested in the Trustee
by this Instrument. In the event any
foreclosure advertisement is running or has
run at the time of such appointment of a
successor Trustee with respect to the
Missouri Premises, the successor Trustee may
consummate the advertised sale without the
necessity of republishing such
advertisement. The making of oath or the
giving of bond by any successor Trustee with
respect to the Missouri Premises expressly
is waived.
5.12.3. North Carolina Premises. Lender shall at any
time have the irrevocable right to remove
Trustee with respect to the North Carolina
Premises herein named without notice or
cause and to appoint a successor thereto by
an instrument in writing, duly acknowledged,
in such form as to entitle such written
instrument to be recorded in North Carolina,
and in the event of the death or resignation
of Trustee with respect to the North
Carolina Premises named herein, Lender shall
have the right to appoint a successor
thereto by such written instrument, and any
Trustee with respect to the North Carolina
Premises so appointed shall be vested with
the title to the North Carolina Premises and
shall possess all the powers, duties and
obligations herein conferred on Trustee with
respect to the North Carolina Premises in
the same manner and to the same extent as
though such were named herein as Trustee
with respect to the North Carolina Premises.
5.12.4. Tennessee Premises. Lender shall at any time
have the irrevocable right to remove Trustee
with respect to the Tennessee Premises
herein named without notice or cause and to
appoint a successor thereto by an instrument
in writing, duly acknowledged, in such form
as to entitle such written instrument to be
recorded in Tennessee, and in the event of
the death or resignation of Trustee with
respect to the Tennessee Premises named
herein, Lender shall have the right to
appoint a successor thereto by such written
instrument, and any Trustee with respect to
the Tennessee Premises so appointed shall be
vested with the title to the Tennessee
Premises and shall possess all the powers,
duties and obligations herein conferred on
Trustee with respect to the Tennessee
Premises in the same manner and to the same
extent as though such were named herein as
Trustee with respect to the Tennessee
Premises.
5.12.5. Virginia Premises. Lender shall at any time
have the irrevocable right to remove Trustee
with respect to the Virginia Premises for
any reason whatsoever and without notice and
to appoint a successor thereto by an
instrument in writing, duly acknowledged, in
such form as to entitle such written
instrument to be recorded in Virginia, and
in the event of the death or resignation of
Trustee with respect to the Virginia
Premises named herein, Lender shall have the
right to appoint a successor thereto by such
written instrument, and any Trustee with
respect to the Virginia Premises so
appointed shall be vested with the title to
the Virginia Premises and shall possess all
the powers, duties and obligations herein
conferred on Trustee with respect to the
Virginia Premises in the same manner and to
the same extent as though such were named
herein as Trustee with respect to the
Virginia Premises.
5.13. Trustee's Powers. At any time, or from time to time, without
liability therefor and without notice, upon written request of Lender and
presentation of copies of this Instrument and the Note secured hereby for
endorsement, and without affecting the personal liability of any person for
payment of the Combined Obligations or the effect of this Instrument upon the
remainder of said Premises, Trustee shall (i) reconvey any part of said
Premises, (ii) consent in writing to the making of any map or plat thereof,
(iii) assist in granting any easement therein, or (iv) join in any extension
agreement or any agreement subordinating the lien or charge hereof.
5.14. Lender's Powers. Without affecting the liability of any other
person liable for the payment of any obligation herein mentioned, and without
affecting the lien or charge of this Instrument upon any portion of the Premises
not then or theretofore released as security for the full amount of all unpaid
obligations, Lender may, from time to time and without notice (i) release any
person so liable, (ii) extend the maturity or alter any of the terms of any such
obligation, (iii) grant other indulgences, (iv) cause to be released or
reconveyed at any time at Lender's option, any parcel, portion or all of the
Premises, (v) take or release any other or additional security for any
obligation herein mentioned, or (vi) make compositions or other arrangements
with debtors in relation thereto. The provisions of N.C. Gen. Stat. Section
45-45.1 or any similar statute hereafter enacted in North Carolina in
replacement or in substitution thereof shall be inapplicable to this Instrument.
5.15. Acceptance by Trustee. Trustee accepts this Trust when this
Instrument, duly executed and acknowledged, is made of public record as provided
by law.
5.16. Residential Dwelling Units. This Instrument is not a mortgage of
real property in New York principally improved or to be improved by one or more
structures containing in the aggregate not more than six (6) residential
dwelling units, each dwelling unit having its own separate cooking facility.
5.17. No Liability or Obligation on Trustee or Lender. Nothing in this
Instrument shall be construed to impose any obligation upon either Trustee or
Lender to expend any money or to take any other discretionary act herein
permitted, and neither Lender nor Trustee shall have any liability or obligation
for any delay or failure to take any discretionary act in the absence of gross
negligence or willful misconduct by them. Trustee shall not be required to see
that this Instrument is recorded and shall not be liable for the default or
misconduct of any agent or attorney appointed by them in pursuance hereof, or
for anything whatsoever in connection with this trust, except gross negligence
or willful misconduct. Trustee may act upon any instrument or paper believed by
Trustee in good faith to be genuine and to be signed by the proper party or
parties, and shall be fully protected for any action taken or suffered by
Trustee in reliance thereon.
Section 5.18. No Recourse to Members, Stockholders or Partners of
Joint Venture. Notwithstanding anything to the contrary in this Instrument,
Lender agrees that no general or limited partner, member or stockholder of Joint
Venture (as such term is defined in the Credit Agreement), nor any of their
partners, officers, employees or agents shall in such capacity have any
liability (contractually or otherwise) in respect of the Loan (as such term is
defined in the Credit Agreement)or any other obligations arising under the
Combined Documents. Nothing in this Section 5.18 shall relieve the Borrower or
any guarantor of any such liability.
IN WITNESS WHEREOF, Borrower has executed this instrument as of the
day and year first above written.
"BORROWER"
AMERICOLD CORPORATION, an Oregon
By:_______________________
Attest:___________________
[CORPORATE SEAL]
