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State _______ Site No. _______
EXHIBIT G-1
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FORM OF MORTGAGE
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MORTGAGE, LEASEHOLD MORTGAGE,
SECURITY AGREEMENT AND ASSIGNMENT
OF LEASES AND RENTS
Mortgagor: PAYLESS CASHWAYS, INC.
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Mortgagee: CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY
as Administrative Agent and
Collateral Agent
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Mortgage
Amount:
Date: October 3, 1996
Premises:
Record and XXXXX, XXXXXX & XXXXXX, LLP
Return to: 000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxxx, Esq.
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MORTGAGE, LEASEHOLD MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF
LEASES AND RENTS, dated as of the 3rd day of October, 1996, by and between
PAYLESS CASHWAYS, INC., an Iowa corporation, having an office at 0000 Xxxx
Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("Mortgagor") and CANADIAN IMPERIAL BANK
OF COMMERCE, NEW YORK AGENCY, as Administrative Agent and Collateral Agent
under the Agreement (as hereinafter defined), having an office at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Mortgagee").
DEFINITIONS
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Mortgagor and Mortgagee agree that all capitalized terms used but
not defined herein are defined in or by reference to the Agreement and shall
have the same meanings herein as therein. Mortgagor and Mortgagee further
agree that, unless the context otherwise specifies or requires, the
following terms shall have the meanings herein specified, such definitions
to be applicable equally to the singular and the plural forms of such terms.
"Agreement" means that certain Amended and Restated Credit
Agreement dated on or about the date hereof by and among Payless Cashways,
Inc., the signatory Lenders thereto, Canadian Imperial Bank of Commerce, as
Letter of Credit Bank, Canadian Imperial Bank of Commerce, New York Agency,
as Administrative Agent and Collateral Agent and The Bank of Nova Scotia,
Nationsbank of Texas, N.A., and Bank of America National Trust and Savings
Association as Co-Agents, together with any future amendments, amendments
and restatements, extensions, modifications or supplements thereto or
thereof.
"Default" means Default, as that term is defined in the Agreement.
"Default Rate" means the rate of interest specified in Subsection
2.5(a) of the Agreement.
"Event of Default" means the events and circumstances described as
such in Article II hereof.
"Fixtures" means all Mortgagor's right, title and interest in all
furniture, furnishings, partitions, screens, awnings, venetian blinds,
window shades, draperies, carpeting, pipes, ducts, conduits, dynamos,
motors, engines, compressors, generators, boilers, stokers, furnaces, pumps,
tanks, elevators, escalators, vacuum cleaning systems, call systems,
switchboards, sprinkler systems, fire prevention and extinguishing
apparatus, refrigerating, air conditioning, heating, dishwashing, plumbing,
ventilating, gas, steam, electrical and lighting fittings and fixtures,
licenses or permits of any kind and all building materials, equipment and
goods now or
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hereafter delivered to the Premises (hereinafter defined) and intended to be
installed therein, and all other machinery, fixtures, tools, implements,
apparatus, appliances, equipment, goods, facilities and other personal
property of similar character in which Mortgagor now has, or at any time
hereafter acquires, an interest and which are now or hereafter affixed or
attached to, or used in connection with the enjoyment, occupancy and/or
operation of, all or any portion of the Premises, together with all
renewals, replacements and substitutions thereof and additions and
accessions thereto and the proceeds of all of the foregoing items.
"Improvements" means all buildings, structures and other
improvements presently existing or hereafter constructed on the land
described in Exhibit A attached hereto.
"Lease" has the meaning ascribed to such term in Section 3.01
hereof.
"Leasehold" has the meaning ascribed to such term in paragraph "F"
of the Granting Clause, below.
"Leasehold Interest" has the meaning ascribed to such term in
paragraph "F" of the Granting Clause, below.
"Lessee" has the meaning ascribed to such term in Section 3.01
hereof.
"Loan Documents" means the Credit Documents, as that term is
defined in the Agreement.
"Loans" means the Loans, as that term is defined in the Agreement.
"Mortgage" means this Mortgage, Leasehold Mortgage, Security
Agreement and Assignment of Leases and Rents together with any future
amendments, modifications or supplements hereto or hereof.
"Mortgage Amount" means the principal sum of $500,000,000.
"Mortgaged Property" has the meaning ascribed to such term in the
Granting Clause, below.
"Notes" means the Notes, as that term is defined in the Agreement.
"Premises" means the land described in Exhibit A annexed hereto,
together with the Improvements thereon or to be constructed thereon or
therein, and all of the easements, rights, privileges and appurtenances
thereunto belonging or in anywise appertaining thereto including, but not
limited to, all of the estate, right, title, interest, claim or demand
whatsoever of Mortgagor therein and in and to the strips and gores, streets
and ways adjacent thereto, whether in law or in equity, in
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possession or expectancy, now or hereafter acquired and also any other
realty, Leaseholds (hereinafter defined) or Fixtures encompassed by the term
"Mortgaged Property", elsewhere herein defined.
"Rents" has the meaning ascribed to such term in Section 3.01
hereof.
"Secured Obligations" has the meaning ascribed to such term in the
paragraph entitled "Secured Obligations" below.
"Secured Parties" means Secured Parties, as that term is defined in
the Agreement.
W I T N E S S E T H :
WHEREAS, Mortgagor is the actual, record and beneficial owner of
the Premises or owns an actual beneficial interest therein; and
WHEREAS, Mortgagor has agreed pursuant to the terms of the
Agreement, the Notes, and/or the other Loan Documents evidencing the Secured
Obligations to be liable for the Secured Obligations; and
WHEREAS, the parties intend that the Secured Obligations shall be
secured by this Mortgage.
GRANTING CLAUSE
NOW, THEREFORE, Mortgagor, in consideration of the premises, and in
order to secure the payment in full of the Mortgage Amount, the Secured
Obligations, all interest due thereon and all other costs and expenses and
other amounts due hereunder and in respect of the Secured Obligations, and
the performance and discharge of all the provisions hereof, of the Secured
Obligations and all other Loan Documents, hereby gives, grants, bargains,
mortgages, pledges and grants a security interest to Mortgagee, all of
Mortgagor's estate, right, title and interest in, to and under any and all
of the following described property whether now owned or hereafter acquired
(all such properties being collectively referred to as the "Mortgaged
Property"):
A. All Mortgagor's right, title and interest in and to the Premises
and all right, title and interest of Mortgagor in and to the Improvements on
the Premises or to be constructed thereon and all Fixtures now or hereafter
situated in, on or about, or affixed or attached to the Improvements or the
Premises or any building, structure or other improvement now or hereafter
standing, constructed or placed upon or within the
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Premises, and all and singular the tenements, hereditaments, easements,
rights-of-way or use, rights, privileges and appurtenances to the Premises,
now or hereafter belonging or in anywise appertaining thereto, including,
without limitation, any such right, title, interest, claim and demand in, to
and under any agreement granting, conveying or creating, for the benefit of
the Premises, any easement, right or license in any way affecting other
property and in, to and under any streets, ways, alleys, vaults, gores or
strips of land adjoining the Premises, or any parcel thereof, and all claims
or demands either in law or in equity, in possession or expectancy, of, in
and to the Premises.
B. All right, title and interest of Mortgagor in and to all awards
heretofore made or hereafter to be made for the taking by eminent domain of
the whole or any part of the above described premises, or any estate or
easement therein, including any awards for change of grade of streets, all
of which awards are hereby assigned to Mortgagee, which Mortgagee is hereby
authorized to collect (unless provided otherwise in the Agreement), and
receive the proceeds of such awards and to give proper receipts and
acquittances therefor and Mortgagee shall have the right and option to apply
such excess towards the payment of any sum owing on account of this Mortgage
and the Secured Obligations secured thereby, notwithstanding the fact that
such sum may not then be due and payable.
C. The Fixtures and the products and proceeds thereof.
D. All present and future leases, subleases and licenses and any
guarantees thereof, rents, issues and profits and additional rents now or at
any time hereafter covering or affecting all or any portion of the Mortgaged
Property and all proceeds of, and all privileges and appurtenances belonging
or in any way appertaining to, the Mortgaged Property, or any part thereof,
and all other property subjected or required to be subjected to the lien
and/or security interest of this Mortgage, including, without limitation,
all of the income, revenues, earnings, rents, maintenance payments, tolls,
issues, awards (including, without limitation, condemnation awards and
insurance proceeds), products and profits thereof, which income, revenues,
earnings, rents, maintenance payments, tolls, issues, awards, products and
profits are hereby expressly assigned with the right to take and collect the
same upon the terms hereinafter set forth; and all the estate, right, title,
interest and claim whatsoever, at law and in equity, which Mortgagor now has
or may hereafter acquire in and to the aforementioned property and every
part thereof; provided, that so long as no Event of Default (as hereinafter
defined) shall have occurred and be continuing, all such income, revenues,
earnings, rents, maintenance payments, tolls, issues, awards, products and
profits shall remain with and under the control of Mortgagor except as
otherwise expressly provided herein or in any other written agreement
between Mortgagor and Mortgagee.
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E. All right, title and interest of Mortgagor in and to all
agreements, or contracts, now or hereafter entered into for the sale,
leasing, brokerage, development, construction, renovation, management,
maintenance and/or operation of the Premises (or any part thereof),
including all moneys due and to become due thereunder, and all permits,
licenses, bonds, insurance policies, plans and specifications relative to
the construction and/or operation of the Improvements upon the Mortgaged
Property.
F. All right, title and interest (including, without limitation,
all present and future rights to possession and use, and all present and
future options and other rights to renew and to purchase) of Mortgagor, as
lessee or sublessee, under any leases, subleases, licenses, occupancy
agreements or concessions now in effect or to be entered into hereafter
(collectively, the "Leasehold Instruments") whereby Mortgagor has any right
to the use, possession or occupancy of the Premises or any part thereof
(collectively, the "Leaseholds").
G. All of Mortgagor's claims and rights to the payment of damages
arising from any rejection of a Leasehold or a Lease under or pursuant to
the Bankruptcy Code, 11 U.S.C. ss.101 et seq. (the "Bankruptcy Code").
H. All Mortgagor's rights and remedies at any time arising under or
pursuant to Subsection 365(h) of the Bankruptcy Code, 11 U.S.C. ss.365(h),
including, without limitation, all of Mortgagor's rights to remain in
possession of the Premises.
I. Any other property and rights which are, by the provisions of
the Agreement or any other Loan Document, required to be subject to the lien
hereof, and any additional property and rights that may from time to time
hereafter by installation in or on the Mortgaged Property, or by writing of
any kind, or otherwise, be subjected to the lien hereof by Mortgagor or by
anyone on its behalf.
J. All proceeds of the conversion, voluntary or involuntary, of any
of the foregoing into cash or liquidated claims, including, without
limitation, proceeds of insurance and condemnation awards, and all right,
title and interest of Mortgagor in and to all unearned premiums accrued,
accruing and to accrue under any or all insurance policies obtained by
Mortgagor.
TO HAVE AND TO HOLD the Mortgaged Property, unto Mortgagee and its
successors and assigns, upon the terms, provisions and conditions herein set
forth, forever, and Mortgagor does hereby bind itself and its successors,
legal representatives, and assigns to warrant and forever defend all and
singular the Mortgaged Property unto Mortgagee and its successors and
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assigns, against every person whomsoever lawfully claiming or to claim the
same or any part thereof.
SECURED OBLIGATIONS
This Mortgage, and all rights, titles, interests, liens, security
interests, powers, privileges and remedies created hereby or arising
hereunder or by virtue hereof, are given to secure the payment and
performance of the all indebtednesses, obligations and liabilities arising
under the Notes, the Agreement, this Mortgage and any other Loan Document,
and any renewals, extensions, amendments, amendments and restatements,
supplements or modifications thereof or thereto, howsoever created, arising
or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing or due or to become due, and any and all fees, costs or
expenses incurred by Mortgagee, including, but not limited to, interest
accruing at the then applicable rate provided in the Agreement after the
maturity of the Loans and interest accruing at the then applicable rate
provided in the Agreement or other applicable agreement after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Mortgagor on the Loans
and on all other obligations of the Mortgagor to the Secured Parties, taxes,
recording expenses and attorneys' fees in connection with the execution and
delivery of the aforesaid, and the consummation of the transactions
contemplated thereby, the administration thereof, and, after default, the
administration and collection thereof, all costs incurred of whatever nature
by Mortgagee in the exercise of any rights hereunder or any other Loan
Document and all other amounts payable by Mortgagor under this Mortgage (all
of the foregoing indebtedness, obligations and liabilities being referred to
herein as the "Secured Obligations").
ARTICLE I
PARTICULAR WARRANTIES, REPRESENTATIONS
AND COVENANTS OF MORTGAGOR
Section 1.01 Warranties and Representations. Mortgagor hereby
warrants and represents as follows:
(a) Mortgagor is the actual, record and beneficial owner
of the Premises and holder of a good and marketable title to an indefeasible
leasehold estate in the Leaseholds or owns an actual beneficial interest
therein and fee estate in the rest of the Mortgaged Property, subject only
to such exceptions to title as are listed in the title policy insuring the
lien of this Mortgage and approved by Mortgagee as permitted exceptions.
Mortgagor is the owner of all of the remaining Mortgaged Property; Mortgagor
will own the Fixtures free and clear of liens and claims except those in
favor of Mortgagee;
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and this Mortgage is and will remain a valid and enforceable first lien on
the Mortgaged Property subject only to the permitted exceptions referred to
above.
(b) Mortgagor has full power and lawful authority to
mortgage the Mortgaged Property in the manner and form herein done or
intended hereafter to be done. Mortgagor will preserve such title, and will
forever warrant and defend the validity and priority of the lien hereof,
against the claims of all persons and parties whomsoever.
(c) Except as otherwise specified in the Title Policy (as
defined in the Agreement) or in the Survey (as defined in the Agreement),
the Premises is not located in an area identified by the Secretary of
Housing and Urban Development as an area having special flood hazards or if
it is so located, flood insurance acceptable to Mortgagee has been obtained.
Section 1.02 Further Assurances. Mortgagor will, at its sole
expense, do, execute, acknowledge and deliver every further act, deed,
conveyance, mortgage, assignment, notice of assignment, transfer or
assurance as Mortgagee shall from time to time reasonably require, for the
better assuring, conveying, assigning, transferring and confirming unto
Mortgagee the property and rights hereby conveyed, mortgaged or assigned or
intended now or hereafter so to be, or which Mortgagor may be or may
hereafter become bound to convey, mortgage or assign to Mortgagee or for
carrying out the intention or facilitating the performance of the terms of
this Mortgage, and for filing, registering or recording this Mortgage and,
on demand, will execute and deliver, and hereby authorizes Mortgagee to
execute in the name of Mortgagor to the extent it may lawfully do so, one or
more financing statements, chattel mortgages or comparable security
instruments, and renewals thereof, to evidence more effectively the lien
hereof upon the Fixtures.
Section 1.03 Filings, Recordings and Payments. (a) Mortgagor
forthwith upon the execution of this Mortgage, and thereafter from time to
time, will, at its expense, cause this Mortgage and any security instrument
creating a lien or evidencing the lien hereof upon the Fixtures and each
instrument of further assurance to be filed, registered or recorded in such
manner and in such places as may be required by any present or future law in
order to publish notice of and fully to protect the lien hereof upon, and
the interest of Mortgagee in, the Mortgaged Property.
(b) Mortgagor will pay all taxes, filing, registration and
recording fees, and all expenses incident to the execution and
acknowledgment of this Mortgage, any supplemental mortgage, any other Loan
Document, and any security instrument with respect to the Fixtures, and any
instrument of further assurance, and all federal, state, county and
municipal stamp
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taxes and other taxes, duties, imposts, assessments and charges arising out
of or in connection with the execution and delivery of the Agreement, this
Mortgage, any supplemental mortgage, any other Loan Document, any security
instrument with respect to the Fixtures or any instrument or further
assurance, other than income, franchise or other similar taxes imposed on
Mortgagee in respect of income derived by Mortgagee under the Secured
Obligations.
Section 1.04 Payment of Sums Due. Mortgagor will punctually pay the
principal and interest and all other sums to become due in respect of the
Agreement and any other Loan Document at the time and place and in the
manner specified in the Agreement and any other Loan Document, according to
the true intent and meaning thereof and without offset, counterclaim,
defense or cause of action of any kind whatsoever , and without deduction or
credit for any amount payable for taxes, all in immediately available funds
in Dollars.
Section 1.05 After Acquired Property. All right, title and interest
of Mortgagor in and to all extensions, improvements, betterments, renewals,
substitutes and replacements of, and all additions and appurtenances to, the
Mortgaged Property, hereafter acquired by or released to Mortgagor or
constructed, assembled or placed by Mortgagor on the Premises, and all
conversions of the security constituted thereby, immediately upon such
acquisition, release, construction, assembling, placement or conversion, as
the case may be, and in each such case, without any further mortgage,
conveyance, assignment or other act by Mortgagor, shall become subject to
the lien of this Mortgage as fully and completely, and with the same effect,
as though now owned by Mortgagor and specifically described in the granting
clauses hereof, but at any and all times Mortgagor will execute and deliver
to Mortgagee any and all such further assurances, mortgages, conveyances or
assignments thereof as Mortgagee may reasonably require for the purpose of
expressing and specifically subjecting the same to the lien of this
Mortgage.
Section 1.06 Taxes, Fees and Other Charges. (a) Mortgagor, from
time to time when the same shall become due, and prior to the date of
imposition of interest or penalty (except as otherwise permitted in the
Agreement), will pay and discharge, or cause to be paid and discharged, all
taxes of every kind and nature (including real and personal property taxes
and income, franchise, withholding, transfer or recordation taxes, profits
and gross receipt taxes), all general and special assessments, levies,
permits, inspection and license fees, all water and sewer rents and charges,
and all other public charges, whether of a like or different nature, imposed
upon or assessed against it or the Mortgaged Property or any part thereof or
upon the revenues, rents, issues, income and profits of the Premises or
arising in respect of the occupancy, use or possession thereof. Mortgagor
will, at any time upon request by Mortgagee, promptly deliver to Mortgagee
receipts
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evidencing the payment of same.
Upon the occurrence of an Event of Default under the Agreement,
Mortgagee may, at any time and from time to time, at its option, to be
exercised by written notice to Mortgagor, require the deposit by Mortgagor
at the time of each payment of an installment of interest or principal under
the Agreement of an additional amount sufficient to discharge the
obligations under this subsection (a) when they become due. The
determination of the amount so payable and of the fractional part thereof to
be deposited with Mortgagee, so that the aggregate of such deposit shall be
sufficient for this purpose, shall be made by Mortgagee in its sole
discretion. Such amounts shall be held by Mortgagee without interest in an
account acceptable to Mortgagee and applied to the payment of the
obligations in respect to which such amounts were deposited or, at the
option of Mortgagee and subject to applicable law, to the payment of the
Secured Obligations in such order or priority as Mortgagee shall determine
consistent with the Agreement, on or before the respective dates on which
the same or any of them would become delinquent. If one month prior to the
due date of any of the obligations under this subsection (a) the amounts
then on deposit therefor shall be insufficient for the payment of such
obligations in full, Mortgagor within ten (10) days after demand shall
deposit the amount of the deficiency with Mortgagee. Nothing herein
contained shall be deemed to affect any right or remedy of Mortgagee under
the provisions of this Mortgage or of any statute or rule of law to pay any
such amount and to add the amount so paid together with interest at the
Default Rate to the indebtedness hereby secured.
(b) Except as otherwise permitted in the Agreement,
Mortgagor will pay, from time to time when the same shall become due, all
lawful claims and demands of mechanics, materialmen, laborers, and others
which, if unpaid, might result in, or permit the creation of, a lien on the
Mortgaged Property or any part thereof, or on the revenues, rents, issues,
income and profits arising therefrom and in general will do or cause to be
done everything necessary so that the lien hereof shall be fully preserved,
at the cost of Mortgagor, without expense to Mortgagee.
Section 1.07 Intentionally Deleted.
Section 1.08 Insurance. (a) Mortgagor agrees to at all times
provide, maintain and keep in force the policies of insurance required to
the maintained pursuant to the terms of the Agreement.
(b) In the event Mortgagor fails to provide, maintain,
keep in force or deliver and furnish to Mortgagee the policies of insurance
required by the Agreement or this Mortgage, Mortgagee may procure such
insurance or single-interest
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insurance for such risks covering Mortgagee's interest, and Mortgagor will
pay all premiums thereon promptly upon demand by Mortgagee, and until such
payment is made by Mortgagor the amount of all such premiums, together with
interest thereon at the Default Rate shall be secured by this Mortgage.
(c) After the happening of any casualty to the Mortgaged
Property or any part thereof, Mortgagor shall give prompt written notice
thereof to Mortgagee, and Mortgagee may make proof of loss if not made
promptly by Mortgagor. In the event of such loss or damage, all proceeds of
insurance shall be payable in the manner provided for in the Agreement.
Unless otherwise provided in the Agreement, nothing herein contained shall
be deemed to excuse Mortgagor from repairing or maintaining the Premises as
provided in Section 1.12 hereof or restoring all damage or destruction to
the Mortgaged Property, regardless of whether or not there are insurance
proceeds available or whether any such proceeds are sufficient in amount,
and the application or release by Mortgagee of any insurance proceeds shall
not cure or waive any default or notice of default under this Mortgage or
invalidate any act done pursuant to such notice. Any monies received as
payment for loss under any insurance shall be applied pursuant to the terms
of the Agreement.
(d) In the event of foreclosure of this Mortgage or other
transfer of title or assignment of the Premises in extinguishment, in whole
or in part, of the debt secured hereby, all right, title and interest of
Mortgagor in and to all policies of insurance required by this Section 1.08
shall inure to the benefit of and pass to the successor in interest to
Mortgagor or the purchaser or grantee of the Premises.
(e) Mortgagor shall not take out separate insurance
concurrent in form or contributing in the event of loss with that required
to be maintained under this Section 1.08, unless Mortgagee has approved the
insurance company and the form and content of the insurance policy,
including, without limitation, the naming thereon of Mortgagee as a named
insured with loss payable to Mortgagee under a standard mortgagee
endorsement of the character above described and the inclusion of a
provision therein obligating said insurance company to provide Mortgagee
with notice thirty (30) days prior to cancellation, lapse or amendment of
any policy. Mortgagor shall immediately notify Mortgagee whenever any such
separate insurance is taken out and shall promptly deliver to Mortgagee the
policy or policies of such insurance.
(f) Mortgagee may at any time following the occurrence of
an Event of Default under the Agreement, at its option, to be exercised by
written notice to Mortgagor, require the deposit by Mortgagor, at the time
of each payment of an installment of interest or principal under the
Agreement, of an additional amount sufficient to discharge the obligations
under this Section 1.08 when they become due. The determination of
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the amount so payable and of the fractional part thereof to be deposited
with Mortgagee with each installment, so that the aggregate of such deposit
shall be sufficient for this purpose, shall be made by Mortgagee in its sole
discretion. Such amounts shall be held by Mortgagee without interest in an
account acceptable to Mortgagee and applied to the payment of the
obligations in respect of which such amounts were deposited on or before the
respective dates on which the same or any of them would become delinquent
or, at the option of Mortgagee, to the payment of the Secured Obligations in
such order or priority as Mortgagee shall determine consistent with the
Agreement. If one month prior to the due date of any of the aforementioned
obligations the amounts then on deposit therefor shall be insufficient for
the payment of such obligations in full, Mortgagor within five (5) days
after demand shall deposit the amount of the deficiency with Mortgagee.
Nothing herein contained shall be deemed to affect any right or remedy of
Mortgagee under the provisions of this Mortgage or of any statute or rule of
law to pay any such amount and to add the amount so paid together with
interest at the Default Rate to the indebtedness hereby secured.
Section 1.09 Condemnation. (a) In the event the Mortgaged Property
or any part thereof or interest therein, shall be taken or damaged by
eminent domain, alteration of the grade of any street, or there shall occur
any other injury to or decrease in the value of the Mortgaged Property, by
reason of any public or quasi-public improvement or condemnation proceeding,
or in any other similar manner ("Condemnation"), or should Mortgagor receive
any notice or other information regarding such Condemnation or a proposed
Condemnation, Mortgagor shall give prompt written notice thereof to
Mortgagee.
(b) All compensation, awards and other payments or relief
payable as a result of any such Condemnation, shall be payable in the manner
provided for in the Agreement. All such compensation, awards, damages,
rights of action and proceeds awarded to Mortgagor (the "Proceeds") are
hereby assigned to Mortgagee and Mortgagor agrees to execute such further
assignments of the Proceeds as Mortgagee may require. Mortgagee shall be
under no obligation to question the amount of any such award or compensation
and may accept the same in the amount paid. All Proceeds may be applied
either against the Secured Obligations (in such order and priority as
Mortgagee shall determine consistent with the Agreement) or to restore the
Premises, at the discretion of Mortgagee, except as may be otherwise
provided in the Agreement.
(c) Unless otherwise provided in the Agreement, nothing
herein contained shall be deemed to excuse Mortgagor from repairing or
maintaining the Premises as provided in Section 1.12 hereof or restoring all
damage or destruction to the Mortgaged Property, regardless of whether or
not there are
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proceeds available or whether any such Proceeds are sufficient in amount,
and the application or release by Mortgagee of any Proceeds shall not cure
or waive any default or notice of default under this Mortgage or invalidate
any act done pursuant to such notice.
(d) Receipt by Mortgagee and application in reduction of
indebtedness of any Proceeds less than the full amount of the then
outstanding Secured Obligations shall not defer, alter or modify Mortgagor's
obligation to continue to pay the regular installments of principal,
interest on the outstanding principal balance and other charges specified in
the Secured Obligations and herein.
(e) If prior to the receipt of the Proceeds by Mortgagee
the condemned Premises shall have been sold on foreclosure of this Mortgage,
Mortgagee shall, nevertheless, have the right to receive the Proceeds and to
retain, for its own account, (i) an amount equal to the counsel fees, costs
and disbursements incurred by Mortgagee in connection with collection of the
Proceeds and not repaid by Mortgagor and (ii) the full amount of all such
Proceeds, if Mortgagee is the successful purchaser at the foreclosure sale,
to the extent of amounts owed under the Secured Obligations or hereunder.
Section 1.10 Mortgagee's Performance of Mortgagor's Obligations. If
Mortgagor shall fail to perform any of the covenants contained herein or any
covenant contained in the Agreement or any other Loan Document, Mortgagee
may, but shall not be obligated to, make advances and/or disbursements to
perform the same. Mortgagor will repay on demand all sums so advanced and/or
disbursed with interest at the Default Rate from the date of making such
advance and/or disbursement until such sums have been repaid and all sums so
advanced and/or disbursed, together with interest thereon at the Default
Rate, shall be a lien upon the Mortgaged Property and shall be secured
hereby. The provisions of this Section 1.10 shall not prevent any default in
the observance of any covenant contained herein or in the Secured
Obligations or any other Loan Document from constituting an Event of
Default.
Section 1.11 Financial Records. Mortgagor will provide the
financial statements to Mortgagee required pursuant to the terms of the
Agreement.
Section 1.12 Waste and Maintenance. Mortgagor will not threaten,
commit, permit or suffer any waste to occur on or to the Mortgaged Property
or any part thereof or alter or demolish the Mortgaged Property or any part
thereof in any manner or make any change in its use (except as provided in
the Agreement) or any change which will in any way increase any fire or
other hazards arising out of construction or operation of the Mortgaged
Property. Mortgagor will, at all times, maintain the Mortgaged Property as
required pursuant to the terms of the Agreement.
13
Section 1.13 Enforcement Expenses. Except where inconsistent with
the laws of the state in which the Mortgaged Property is located, Mortgagor
agrees that if any action or proceeding be commenced, including an action to
foreclose this Mortgage or to collect the indebtedness hereby secured, to
which action or proceeding Mortgagee is made a party by reason of the
execution of this Mortgage or the Secured Obligations which it secures, or
in which it becomes necessary to defend or uphold the lien of this Mortgage,
all sums paid by Mortgagee for the expense of any litigation to prosecute or
defend the transaction and the rights and liens created hereby (including
reasonable attorneys' fees) shall be paid by Mortgagor together with
interest thereon from date of payment by Mortgagee at the Default Rate. All
such sums paid and the interest thereon shall be immediately due and
payable, shall be a lien upon the Mortgaged Property, and shall be secured
hereby as shall be all such sums incurred in connection with enforcement by
Mortgagee of its rights hereunder or under any other Loan Document.
Section 1.14 Defense of Mortgagee's Interests. If the interest of
Mortgagee in the Mortgaged Property or any part thereof or the lien or
security interest of this Mortgage thereon shall be attacked, directly or
indirectly, or if legal proceedings shall be instituted against Mortgagor or
Mortgagee with respect thereto or against Mortgagor, Mortgagor, upon its
learning thereof, will promptly give written notice thereof to Mortgagee and
Mortgagor will, at Mortgagor's cost and expense, exert itself diligently to
cure, or will cause to be cured, any defect that may have developed or be
claimed to exist, and will take all necessary and proper steps for the
protection and defense thereof and will take, or will cause to be taken,
such action as is appropriate to the defense of any such legal proceedings,
including, but not limited to, the employment of counsel and the prosecution
and defense of litigation.
Section 1.15 No Impairment of Security. In no event shall Mortgagor
do or permit to be done, or omit to do or permit the omission of, any act or
thing, the doing, or omission, of which would materially impair the security
of this Mortgage or materially impair the value of the Mortgaged Property or
any part thereof.
Section 1.16 Restrictions on Transfers and Mortgages. Unless
otherwise permitted pursuant to the terms of the Agreement, Mortgagor will
not directly or indirectly, by transfer, mortgage, conveyance, or sale of an
interest in Mortgagor permit, do or suffer the assignment, lease, transfer,
sale, conveyance or encumbrance of the Mortgaged Property, or any part
thereof or any interest therein, without the express prior written consent
of Mortgagee unless otherwise permitted pursuant to the terms of the
Agreement. While the Secured Obligations are outstanding, neither the
structure nor the ownership of Mortgagor may be changed without the express
prior
14
written consent of Mortgagee unless otherwise permitted pursuant to the
terms of the Agreement.
Section 1.17 Mortgagee's Defense. Mortgagee may appear in and
defend any action or proceeding at law or in equity or in bankruptcy
purporting to affect the Premises or the security hereof or the rights and
powers of Mortgagee, and any appellate proceedings, and in such event
Mortgagor shall pay all of Mortgagee's costs, charges and expenses,
including cost of evidence of title and attorneys' fees incurred in such
action or proceeding. All costs, charges and expenses so incurred, together
with interest thereon at the Default Rate from the date of payment of same
by Mortgagee as aforesaid, shall be secured by the lien of this Mortgage and
shall be due and payable upon demand.
Section 1.18 Environmental Compliance. Mortgagor will perform and
comply promptly with, and cause the Premises to be maintained, used and
operated in accordance with, all applicable federal, state and local laws
pertaining to air and water quality, hazardous waste, waste disposal, air
emissions and other environmental matters as set forth in the Agreement.
Section 1.19 Zoning Changes. Mortgagor will not consent to, join
in, permit or allow any change in the zoning laws or ordinances relating to
or affecting the Premises which could reasonably be expected to materially
adversely affect the Premises and will promptly notify Mortgagee of any
changes to the zoning laws.
Section 1.20 Grant of Security Interest. Mortgagor, as further
security for the payment of said indebtedness and in addition to all the
rights and remedies otherwise available to Mortgagee under this Mortgage and
the other Loan Documents, grants to Mortgagee a security interest, under the
Uniform Commercial Code as in effect in the state where all or any of the
Fixtures are located, in and to the Fixtures, and all proceeds thereof. Upon
an Event of Default, Mortgagee shall have, in addition to all the other
rights and remedies allowed by law, the rights and remedies of a secured
party under the Uniform Commercial Code as in effect at that time. Mortgagor
further agrees that the security interest created hereby also secures all
expenses of Mortgagee (including reasonable expenses for legal services of
every kind, and cost of any insurance, and payment of taxes or other
charges) incurred in or incidental to, the custody, care, sale or collection
of, or realization upon, any of the property secured hereby or in any way
relating to the enforcement or protection of the rights of Mortgagee
hereunder, together with interest thereon at the Default Rate until paid.
Section 1.21 Compliance with Laws and ADA Compliance.
(a) Mortgagor warrants and covenants that the Premises are
and will continue to be substantially in compliance
15
with all applicable local, county, state and federal laws and regulations
and all building, housing and fire codes, rules and regulations.
(b) Without limiting the provisions of subsection (a) of
this Section 1.21: (i) Mortgagor represents and warrants to Mortgagee that
Mortgagor is substantially in compliance with the Americans with
Disabilities Act of 1990 (42 U.S.C.A. sec. 12101 et. seq.), as the same may
be amended from time to time (the "ADA") and all other federal, state and
local laws pertaining to the accessibility of the Premises by persons with
disabilities (the ADA and such other laws are, collectively, the
"Accessibility Laws"); (ii) Mortgagor covenants to ensure that the Premises
will at all times substantially comply with all applicable Accessibility
Laws and, upon the request of Mortgagee, Mortgagor will conduct such surveys
of the Premises as Mortgagee shall require to ascertain such compliance;
(iii) Mortgagor will maintain accurate records of all expenditures in
connection with any alterations to the Premises and will deliver copies
thereof to Mortgagee upon Mortgagee's request; and (iv) Mortgagor shall
defend, indemnify and hold harmless Mortgagee, its employees, agents,
officers and directors, and any parent or affiliate of Mortgagee, from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, cost or expenses of whatever kind or nature, known or unknown,
contingent or otherwise, arising out or in any way related to any violations
of the Accessibility Laws (including, without limitation, any costs incurred
by Mortgagee in complying with any Accessibility Laws). Neither payment of
the indebtedness secured hereby nor foreclosure shall operate as a discharge
of Mortgagor's obligations under this subsection (b). In the event Mortgagor
tenders a deed in lieu of foreclosure, Mortgagor shall deliver the Premises
to Mortgagee (or its designee) substantially free of any violations of the
Accessibility Laws. In the event Mortgagor does not timely perform any of
the above obligations, Mortgagee after 30 days notice to Mortgagor may
perform said obligations at the expense of Mortgagor and Mortgagor shall,
upon written demand from Mortgagee, reimburse Mortgagee for all costs,
including attorney's fees and out-of-pocket expenses, and all liabilities
incurred by Mortgagee by reason of the foregoing, with interest thereon at
the Default Rate from the date of such payment by Mortgagee to the date of
repayment. Until paid, said costs and expenses shall be secured by this
Mortgage.
Section 1.22 Other Multistate Mortgages. The indebtedness secured
in part by this Mortgage is secured by mortgages and/or deeds of trust
encumbering and conveying lands and other property and/or leasehold
interests therein in other states as more particularly described in the
Agreement, all of which mortgages and/or deeds of trust, including this
instrument, being hereafter referred to as "the mortgage instruments."
16
It is understood and agreed that all of the properties of all kinds
conveyed or encumbered by the mortgage instruments are security for the
Secured Obligations without allocation of any one or more of the parcels or
portions thereof to any portion of the Secured Obligations less than the
whole amount thereof unless so stated in said mortgage instruments.
It is specifically covenanted and agreed that Mortgagee may
proceed, at the same or at different times, to foreclose said mortgage
instruments, or any of them, by any proceedings appropriate in the state
where any of the land lies, and that no event of enforcement taking place in
any state including, without limiting the generality of the foregoing, any
pending foreclosure, judgment or decree of the foreclosure, foreclosure
sale, rents received, possession taken, deficiency judgment or decree, or
judgment taken on the Secured Obligations, shall in any way stay, preclude
or bar enforcement of the mortgage instruments or any of them in any other
state, and that Mortgagee may pursue any or all its remedies to the maximum
extent permitted by state law until all of the Secured Obligations now or
hereafter secured by any or all of the mortgage instruments has been paid
and discharged in full.
Neither Mortgagor, nor any person claiming under Mortgagor, shall
have or enjoy any right to marshalling of assets, all such right being
hereby expressly waived as to Mortgagor and all persons claiming under it,
including junior lienors. No release of personal liability of any person
whatever and no release of any portion of the property now or hereafter
subject to the lien of any of the mortgage instruments shall have any effect
whatever by way of impairment or disturbance of the lien or priority of any
of said mortgage instruments. Any foreclosure or other appropriate remedy
brought in any of the states aforesaid may be brought and prosecuted as to
any part of the mortgaged security, wherever located, without regard to the
fact that foreclosure proceedings or other appropriate remedies have or have
not been instituted elsewhere on any other land subject to the lien of said
mortgage instruments or any of them.
Section 1.23 Leasehold and Leasehold Instruments.
(a) Mortgagor covenants and agrees to faithfully comply
with and perform all of its obligations under the Leasehold Instruments, and
to promptly cure any default by it under the Leasehold Instruments.
(b) Mortgagor may modify, amend or terminate any Leasehold
Instrument without the prior written consent provided such action is
consistent with the terms of the Agreement.
(c) Mortgagor will promptly give Mortgagee a copy of any
default notice given to Mortgagor with respect to any Leasehold Instrument.
17
ARTICLE II
EVENTS OF DEFAULT AND REMEDIES
Section 2.01 Events of Default. The following shall constitute
defaults hereunder and, after the giving of notice and the passage of time,
if any, as provided herein, shall constitute "Events of Default" hereunder:
(a) if Mortgagor shall fail to pay when due any Secured
Obligation after the passage of any applicable notice or grace period, if
any; or
(b) If an Event of Default, as defined in the Agreement,
shall occur under the Agreement.
Section 2.02 Mortgagee's Remedies. (a) During the continuance of
any Event of Default, Mortgagee, without notice or presentment, each of
which are hereby waived by Mortgagor, may, subject to the provisions of the
Agreement, declare the entire principal of the Secured Obligations then
outstanding and all accrued and unpaid interest thereon and all other
amounts owing in respect of (if not then due and payable, whether by
acceleration or otherwise), to be due and payable immediately, and upon any
such declaration the principal of the Secured Obligations and said accrued
and unpaid interest shall become and be immediately due and payable,
anything in the instruments evidencing the Secured Obligations or in this
Mortgage to the contrary notwithstanding;
(b) During the continuance of any Event of Default,
Mortgagee may enter into and upon all or any part of the Premises, and,
having and holding the same, may use, operate, manage and control the
Mortgaged Property or any part thereof and conduct the business thereof,
either personally or by its superintendents, managers, agents, servants,
attorneys or receivers; and likewise, from time to time, at the expense of
Mortgagor, Mortgagee may make all necessary or proper repairs, renewals and
replacements and such useful alterations, ad-
18
ditions, betterments and improvements thereto and thereon as to it may deem
advisable in its sole judgment; and in every such case Mortgagee shall have
the right to manage and operate the Mortgaged Property and to carry on the
business thereof and exercise all rights and powers of Mortgagor with
respect thereto either in the name of Mortgagor or otherwise as Mortgagee
shall deem best; and Mortgagee shall be entitled, with or without entering
into or upon the Premises, to collect and receive all gross receipts,
earnings, revenues, rents, maintenance payments, issues, profits and income
of the Mortgaged Property and every part thereof, all of which shall for all
purposes constitute property of Mortgagee; and, after deducting the expenses
of conducting the business thereof and of all maintenance, repairs,
renewals, replacement, alterations, additions, betterments and improvements
and amounts necessary to pay taxes, assessments, insurance and prior or
other proper charges upon the Mortgaged Property or any part thereof, as
well as just and reasonable compensation for the services of Mortgagee and
for all attorneys, counsel, agents, clerks, servants and other employees by
it properly engaged and employed, Mortgagee may apply the moneys arising as
aforesaid in such manner and at such times as Mortgagee shall determine in
its discretion consistent with the Agreement to the payment of the Secured
Obligations and the interest thereon, when and as the same shall become
payable and/or to the payment of any other sums required to be paid by
Mortgagor under this Mortgage;
(c) During the continuance of any such Event of Default,
Mortgagor covenants and agrees as follows:
(1) Mortgagee may, with or without entry, personally or by
its agents or attorneys, insofar as applicable, sell the Mortgaged
Property or any part thereof and pursuant to the procedures
provided by law, and all estate, right, title, 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 upon
such terms and after such notice thereof as may be required or
permitted by law; or
(2) Mortgagee may institute an action of mortgage
foreclosure or institute other proceedings according to law for the
foreclosure hereof, and may prosecute the same to judgment,
execution and sale for the collection of the Secured Obligations
secured hereby, and all interest with respect thereto, together
with all taxes and insurance premiums advanced by Mortgagee and
other sums payable by Mortgagor hereunder, and all fees, costs and
expenses of such proceedings, including attorneys' fees and
expenses; or
(3) Mortgagee may, if default be made in the payment of
any part of the Secured Obligations, proceed with foreclosure of
the liens evidenced hereby in satisfaction of such item either
through the courts or by conducting the sale as herein provided,
and proceed with foreclosure of the security interest created
hereby, all without declaring the whole of the Secured Obligations
due, and provided that if sale of the Mortgaged Property, or any
portion thereof, is made because of default in payment of a part of
the Secured Obligations, such sale may be made subject to the
unmatured part of the Secured Obligations, but as to such unmatured
part of the Secured Obligations (and it is agreed that such sale,
if so made, shall not
19
in any manner affect the unmatured part of the Secured Obligations)
this Mortgage shall remain in full force and effect just as though
no sale had been made under the provisions of this paragraph. And
it is further agreed that several sales may be made hereunder
without exhausting the right of sale for any unmatured part of the
Secured Obligations, it being the purpose to provide for a
foreclosure and sale of the Mortgaged Property, or any part
thereof, for any matured portion of the Secured Obligations without
exhausting the power to foreclose and to sell the Mortgaged
Property, or any part thereof, for any other part of the Secured
Obligations whether matured at the time or subsequently maturing;
or
(4) Mortgagee may 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 the Loan Documents 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 Mortgagee shall elect; or
(5) Mortgagee may exercise in respect of the Mortgaged
Property consisting of Fixtures, all of the rights and remedies
available to a secured party upon default under the applicable
provisions of the Uniform Commercial Code in effect in the state
where the Mortgaged Property is located; or
(6) Mortgagee may apply any proceeds or amounts held in
escrow pursuant to the terms of this Mortgage to payment of any
part of the Secured Obligations in such order of priority as
Mortgagee may determine consistent with the Agreement; or
(7) Any sale as aforesaid may be subject to such existing
tenancies as Mortgagee, in its sole discretion, may elect.
Section 2.03 Sale, Foreclosure, etc. (a) Mortgagee may adjourn from
time to time any sale by it to be made under or by virtue of this Mortgage
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, Mortgagee, without further notice or publication, may make
such sale at the time and place to which the same shall be so adjourned.
(b) Upon the completion of any sale or sales made by
20
Mortgagee under or by virtue of this Article II, Mortgagee, or any 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 properties, interests and rights
sold. Mortgagee is hereby irrevocably appointed the true and lawful attorney
of Mortgagor, in its name and stead, to make all the necessary conveyances,
assignments, transfers and deliveries of any part of the Mortgaged Property
and rights so sold, and for that purpose Mortgagee may execute all necessary
instruments of conveyance, assignment and transfer and may substitute one or
more persons with like power, Mortgagor hereby ratifying and confirming all
that its said attorney or such substitute or substitutes shall lawfully do
by virtue hereof. Nevertheless, Mortgagor, if so requested by Mortgagee,
shall ratify and confirm any such sale or sales by executing and delivering
to Mortgagee or to such purchaser or purchasers all such instruments as may
be advisable, in the reasonable judgment of Mortgagee, for the purpose and
as may be designated in such request.
(c) Upon any sale, whether under the power of sale hereby
given or by virtue of judicial proceedings, it shall not be necessary for
Mortgagee, or any public officer acting under execution or order of court,
to have present or constructive possession of any of the Mortgaged Property.
(d) The recitals contained in any conveyance made by
Mortgagee to any purchaser at any sale made pursuant hereto or under
applicable law shall be full evidence of the matters therein stated, and all
prerequisites to such sale shall be presumed to have been satisfied and
performed.
(e) Any such sale or sales made under or by virtue of this
Mortgage, whether under the power of sale hereby granted and conferred, or
under or by virtue of any judicial proceedings, shall operate to divest all
right, title, interest, claim and demand whatsoever, either by law or in
equity, of Mortgagor in and to the premises and property sold, and shall be
a perpetual bar, both at law and in equity, against Mortgagor, its
successors and assigns, and against any and all persons or entities claiming
the premises and property sold, or any part thereof, from through or under
Mortgagor and its successors or assigns.
(f) The receipt given by Mortgagee for the purchase money
paid at any such sale, or the receipt given by any other person authorized
to receive the same, shall be sufficient discharge therefor to any purchaser
of the property, or any part thereof, sold as aforesaid, and no such
purchaser, or his representatives, grantees or assigns, after paying such
purchase money and receiving such receipt, shall be bound (i) to see to the
application of such purchase money or any part thereof upon or for any trust
or purpose of this Mortgage, (ii)
21
by the misapplication or nonapplication of any such purchase money, or any
part thereof, or (iii) to inquire as to the authorization, necessity,
expediency or regularity of any such sale.
(g) In case the liens or security interests hereunder, or
by the exercise of any other right or power, shall be foreclosed by
Mortgagee's sale or by other judicial or non-judicial action, the purchaser
at any such sale shall receive, as an incident to its ownership, immediate
possession of the property purchased, and if Mortgagor or Mortgagor's
successors shall hold possession of said property, or any part thereof,
subsequent to foreclosure, Mortgagor or Mortgagor's successors shall be
considered as tenants at sufferance of the purchaser at foreclosure sale,
and anyone occupying the property after demand made for possession thereof
shall be guilty of forcible detainer and shall be subject to eviction and
removal, forcible or otherwise, with or without process of law, and all
damages by reason thereof are hereby expressly waived.
(h) In the event a foreclosure hereunder shall be
commenced by Mortgagee, Mortgagee may at any time before the sale abandon
the suit, and may then institute suit for the collection of the Secured
Obligations and for the foreclosure of the liens and security interest
hereof. If Mortgagee should institute a suit for the collection of the
Secured Obligations and for a foreclosure of the liens and security interest
hereof, it may at any time before the entry of a final judgment in said suit
dismiss the same and proceed to sell the Mortgaged Property, or any part
thereof, in accordance with provisions of this Mortgage.
(i) Any reasonable expenses incurred by Mortgagee in
prosecuting, resetting or settling the claim of Mortgagee shall become an
additional Secured Obligation of Mortgagor hereunder.
(j) In the event of any sale made under or by virtue of
this Article II (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 Secured
Obligations, if not previously due and payable, and all other sums required
to be paid by Mortgagor pursuant to this Mortgage, immediately thereupon
shall, anything in the Secured Obligations or in this Mortgage to the
contrary notwithstanding, become due and payable.
(k) The purchase money proceeds or avails of any sale made
under or by virtue of this Article II, together with any other sums which
then may be held by Mortgagee under this Mortgage, whether under the
provisions of this Article II or otherwise, shall be applied in accordance
with the laws of the state where the Mortgaged Property is located, and to
the ex-
22
tent not inconsistent, first to the payment of the costs and expenses of
such sale, including reasonable compensation to Mortgagee and its agents and
counsel, second to the payment of the amounts due and owing under or in
respect of the Secured Obligations for principal and interest and any other
amounts including (without limitation) any other sums required to be paid by
Mortgagor pursuant to any provision of this Mortgage or any other Loan
Document, with interest at the Default Rate from and after the happening of
any Event of Default in the order set forth in Section 9.2(a) of the
Agreement, all with interest at the Default Rate from the date such sums
were or are required to be paid under this Mortgage, and third to the
payment of the surplus, if any, to whomsoever may be lawfully entitled to
receive the same.
(l) Upon any sale made under or by virtue of this Article
II, 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, Mortgagee and any other Secured Party may bid for and acquire the
Mortgaged Property or any part thereof and Mortgagee and any other Secured
Party (other than the Merchandise Letter of Credit Bank, as that term is
defined in the Agreement) in lieu of paying cash therefor may make
settlement for the purchase price by crediting some or all of the
indebtedness of Mortgagor secured by this Mortgage owing to such Secured
Party (or, in the case of Mortgagee, owing to all Secured Parties) the net
sales price after deducting therefrom the expenses of the sale and the costs
of the action and any other sums which Mortgagee is authorized to deduct
under this Mortgage.
Section 2.04 Payments, Judgment, etc. (a) In case an Event of
Default under the Agreement and the acceleration of the obligations
thereunder shall have occurred, then, Mortgagor will, in accordance with the
Agreement pay to Mortgagee the whole amount which then shall have become due
and payable on the Secured Obligations, whether for principal and interest
or both or otherwise, as the case may be, which interest shall then accrue
at the Default Rate on the then unpaid principal of or other amounts
constituting the Secured Obligations, and the sums required to be paid by
Mortgagor pursuant to any provision of this Mortgage, and in addition
thereto such further amount as shall be sufficient to cover the costs and
expenses of collection, including compensation to Mortgagee its agents and
counsel and any expenses incurred by Mortgagee hereunder. In the event
Mortgagor shall fail forthwith to pay such amounts upon demand, Mortgagee
shall be entitled and empowered to institute such action or proceedings at
law or in equity as may be advised by its counsel for the collection of the
sums so due and unpaid, and may prosecute any such action or proceedings to
judgment or final decree.
(b) Mortgagee shall be entitled to recover judgment as
aforesaid either before or after or during the pendency of any proceedings
for the enforcement of the provisions of this Mortgage and the right of
Mortgagee to recover such judgment shall not be affected by any entry or
sale hereunder, or by the
23
exercise of any other right, power or remedy for the enforcement of the
provisions of this Mortgage or the foreclosure of the lien hereof; and in
the event of a sale of the Mortgaged Property or any part thereof and of the
application of the proceeds of sale, as provided in this Mortgage, to the
payment of the indebtedness hereby secured, Mortgagee shall be entitled to
enforce payment of, and to receive all amounts then remaining due and unpaid
upon, the Secured Obligations, and to enforce payment of all other charges,
payments and costs due under this Mortgage and shall be entitled to recover
judgment for any portion of the debt remaining unpaid, with interest thereon
at the Default Rate. In case of proceedings against Mortgagor in insolvency
or bankruptcy or any proceedings for its reorganization or involving the
liquidation of its assets, then Mortgagee shall be entitled to prove the
whole amount of principal and interest due upon the Secured Obligations to
the full amount thereof, and all other payments, charges and costs due under
this Mortgage without deducting therefrom any proceeds obtained from the
sale of the whole or any part of the Mortgaged Property.
(c) No recovery of any judgment by Mortgagee and no levy
of an execution under any judgment upon the Mortgaged Property or upon any
other property of Mortgagor shall affect, in any manner or to any extent,
the lien of this Mortgage upon the Mortgaged Property or any part thereof,
or any liens, rights, powers or remedies of Mortgagee hereunder, but such
liens, rights, powers and remedies of Mortgagee shall continue unimpaired as
before.
(d) Any moneys thus collected by Mortgagee under this
Section 2.04 shall be applied by Mortgagee in accordance with the provisions
of paragraph (k) of Section 2.03.
Section 2.05 Receiver, Waiver. After the happening of any Event of
Default and immediately upon the commencement of any action, suit or other
legal proceedings by Mortgagee to obtain judgment for the principal of, or
interest on, and all other amounts constituting the Secured Obligations
including (without limitation) all sums required to be paid by Mortgagor
pursuant to any provision of this Mortgage or of any nature in aid of the
enforcement of the Secured Obligations or of this Mortgage, Mortgagor will
(a) waive the issuance and service of process and submit to a voluntary
appearance in such action, suit or proceeding and (b) if required by
Mortgagee, consent to the appointment of a receiver or receivers of the
Mortgaged Property or any part thereof and of all the earnings, revenues,
rents, maintenance payments, issues, profits and income thereof in
accordance with Section 2.11 hereof. After the happening of any Event of
Default and during its continuance, or upon the commencement of any
proceedings to foreclose this Mortgage or to enforce the specific
performance hereof or in aid thereof or upon the commencement of any other
judicial proceeding to
24
enforce any right of Mortgagee, Mortgagee shall be entitled, as a matter of
right, if it shall so elect, without the giving of notice to any other party
and without regard to the adequacy or inadequacy of any security for the
Mortgage indebtedness, forthwith either before or after declaring the unpaid
principal of the Secured Obligations to be due and payable, to the
appointment of such a receiver or receivers.
Section 2.06 Mortgagee's Possession. Notwithstanding the
appointment of any receiver, liquidator or trustee of Mortgagor or of any of
its property, or of the Mortgaged Property or any part thereof, Mortgagee
shall be entitled to retain possession and control of the Mortgaged
Property.
Section 2.07 Remedies Cumulative. No remedy herein conferred upon
or reserved to Mortgagee is intended to be exclusive of any other remedy or
remedies which Mortgagee may be entitled to exercise against Mortgagor and
each and every such remedy shall be cumulative, and shall be in addition to
every other remedy given hereunder or in the Agreement or in any other Loan
Document now or hereafter existing at law or in equity or by statute. No
delay by or omission of Mortgagee to exercise any right or power shall be
construed to be a waiver of any Event of Default or any acquiescence
therein; and every power and remedy given in this Mortgage or in the
Agreement or in any other Loan Document to Mortgagee may be exercised from
time to time as often as may be deemed expedient by Mortgagee. The resort to
any remedy provided hereunder or in the Agreement or in any other Loan
Document or provided by law or at equity shall not prevent the concurrent or
subsequent employment of any other appropriate remedy or remedies against
Mortgagor. By the acceptance of payment of principal of or interest on or
any other amount due in respect of any of the Secured Obligations after its
due date, Mortgagee does not waive the right either to require prompt
payment when due of all other amounts secured hereby or to regard as an
Event of Default the failure to pay any other such amounts. Nothing in this
Mortgage or in the Agreement or in any instrument evidencing the Secured
Obligations shall affect the obligations of Mortgagor to pay (i) the
principal of, and interest on, the Secured Obligations in the manner and at
the time and place therein or in the Agreement expressed or (ii) the other
Secured Obligations in the manner and at the time herein expressed.
Section 2.08 Agreement by Mortgagor. Mortgagor will not at any time
insist upon, or plead, or in any manner whatever claim or take any benefit
or advantage of any stay or extension or moratorium law, any exemption from
execution or sale of the Mortgaged Property or any part thereof, wherever
enacted, now or at any time hereafter in force, which may affect the
covenants and terms of performance of this Mortgage or any other Loan
Document, or claim, take or insist upon any benefit or advantage of any law
now or hereafter in force providing for the valuation or appraisal of the
Mortgaged Property, or any part thereof, prior to any sale or sales thereof
which may be
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made pursuant to any provision herein, or pursuant to the decree, judgment
or order of any court of competent jurisdiction, or, after any such sale or
sales, claim or exercise any right under any statute heretofore or hereafter
enacted to redeem the property so sold or any part thereof; and Mortgagor
hereby expressly waives all benefit or advantage of any such law or laws and
covenant not to hinder, delay or impede the execution of any power herein
granted or delegated to Mortgagee, but to suffer and permit the execution of
every power as though no such law or laws had been made or enacted.
Mortgagor, waives, to the extent that it lawfully may, all right to have the
Mortgaged Property or any part thereof marshaled upon any foreclosure
hereof.
Section 2.09 Use and Occupancy Payments. During the continuance of
any Event of Default and pending the exercise by Mortgagee of its right to
exclude Mortgagor from all or any part of the Premises, unless Mortgagor is
legally entitled to continue possession of the Premises, Mortgagor agrees to
pay the fair and reasonable rental value for the use and occupancy of the
Premises or any portion thereof which are in its possession for such period
and, upon default of any such payment, will vacate and surrender possession
of the Premises to Mortgagee or to a receiver, if any, and in default
thereof may be evicted by any summary action or proceeding for the recovery
of possession of the Premises for non-payment of rent, however designated.
Such rental obligation by the Mortgagor shall be determined by the extent
that the Secured Obligations have been deemed to have been reduced (the
"Reduction"). It is agreed that the fair and reasonable rental value for use
and occupancy of the Premises may be difficult or impossible to ascertain;
therefore, Mortgagor and Mortgagee hereby agree that the fair and reasonable
rental value shall in no event be less than an amount equal to the debt
service on the Reduction. Any payments received by Mortgagee shall be
applied in accordance with Section 2.03(k) of this Mortgage.
Section 2.10 Mortgagee's Right to Purchase. In case of any sale
under the foregoing provisions of this Article II, whether made under the
power of sale hereby given or pursuant to judicial proceedings, Mortgagee
may bid for and purchase any property, and may make payment therefor as
hereinafter set forth or as set forth in Section 2.03 (l) above, and, upon
compliance with the terms of said sale, may hold, retain and dispose of such
property without further accountability therefor. For the purpose of making
settlement or payment for the property or properties purchased, Mortgagee
shall be entitled to use and apply such of the Secured Obligations held by
it or the other Secured Parties, including (without limitation) any accrued
and unpaid interest thereon, as it may elect, or as may be otherwise
provided for in Section 2.03(l) above.
Section 2.11 Appointment of Receiver. Upon application
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of Mortgagee to any court of competent jurisdiction, if any Event of Default
shall have occurred and so long as it shall be continuing, to the extent
permitted by law, a receiver may be appointed to take possession of and to
operate, maintain, develop and manage the Mortgaged Property or any part
thereof. In every case when a receiver of the whole or any part of the
Mortgaged Property shall be appointed under this Section 2.11 or otherwise,
the net income and profits of the Mortgaged Property shall, subject to the
order of any court of competent jurisdiction, be paid over to, and shall be
received by, Mortgagee to be applied as provided in Section 2.03(k) hereof.
Section 2.12 No Waiver. Mortgagee may resort to any security given
by this Mortgage or to any other security now existing or hereafter given to
secure the payment of any of the Secured Obligations secured hereby, in
whole or in part, and in such portions and in such order as may seem best to
Mortgagee in its reasonable discretion, and any such action shall not in any
way be considered as a waiver of any of the rights, benefits, liens or
security interest created by this Mortgage.
ARTICLE III
ASSIGNMENT OF LEASES AND RENTS
Section 3.01 Lease Related Definitions. As used in this Mortgage:
(a) "Lease" means any lease, sublease, or other similar agreement, now or
hereafter existing, under the terms of which any person other than Mortgagor
has or acquires any right to occupancy or use of the Mortgaged Property, or
any part thereof, or interest therein; (b) "Lessee" means the lessee,
sublessee, licensee, tenant or other person having the right to occupy or
use all or any part of the Mortgaged Property under a Lease; and (c) "Rent"
means the rents, additional rents and other consideration payable to
Mortgagor by the Lessee under the terms of a Lease. Whenever reference is
made in this Mortgage to a lease, license, lessee, licensee, tenancy or
tenant, such reference shall be deemed to include a sublease, sublessee,
license, licensee, subtenancy or subtenant, as the case may be.
Section 3.02 Assignment of Leases and Rents. Mortgagor hereby
assigns to Mortgagee all Leases, together with all Rents payable under the
Leases, now or at any time hereafter existing, such assignment being upon
the following terms: (a) until receipt from Mortgagee of notice of the
occurrence of an Event of Default, each Lessee may pay rent directly to
Mortgagor, (b) upon receipt from Mortgagee of notice that an Event of
Default exists, each Lessee shall, and is hereby authorized and directed to,
pay directly to Mortgagee all Rent thereafter accruing, and the receipt of
such Rent by Mortgagee shall be a release of such Lessee to the extent of
all amounts so paid, (c) Rent so received by Mortgagee shall be applied by
Mortgagee first to the expenses, if any, of collection and then in
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accordance with Article II hereof, (d) without impairing its rights
hereunder, Mortgagee may, at its option, at any time and from time to time,
release to Mortgagor Rent so received by Mortgagee, or any part thereof, (e)
Mortgagee shall not be liable for its failure to collect, or its failure to
exercise diligence in the collection of, Rent, but shall be accountable only
for Rent that it shall actually receive. As among Mortgagee, Mortgagor and
any person claiming through or under Mortgagor, the assignment contained in
this Section 3.02 is intended to be absolute, unconditional and presently
effective, and the provisions of subsection 3.02(a) are intended for the
benefit of each Lessee and shall never inure to the benefit of Mortgagor or
any person claiming through or under Mortgagor. It shall never be necessary
for Mortgagee to institute legal proceedings of any kind whatsoever to
enforce the provisions of this Section 3.02. Notwithstanding anything herein
to the contrary, Mortgagor may collect such Rent until such time as an Event
of Default shall occur hereunder.
Section 3.03 Mortgagee's Consent. Nothing in this Article III shall
ever be construed as (a) allowing any Lease without Mortgagee's prior
written consent unless otherwise permitted under the Agreement, or (b)
subordinating this Mortgage to any Lease.
Section 3.04 Lease Related Covenants. Mortgagor covenants to: (a)
upon demand by Mortgagee, assign to Mortgagee, by separate instrument in
form and substance satisfactory to Mortgagee, any and all Leases, and/or all
Rents payable thereunder, including, but not limited to, any Lease which is
now in existence or which may be executed after the date hereof; (b) not
accept from any Lessee, nor permit any Lessee to pay, Rent for more than one
month in advance except for payment in the nature of security for
performance of Lessee's obligations unless otherwise provided for in the
Lease; (c) comply with the terms and provisions of each Lease including,
without limitation, the payment of all sums required to be paid by Mortgagor
or which any Lessor has an option to pay under any Lease in order to prevent
any reduction in or offset against any Rent payable under any Lease or any
default thereunder; (d) not amend, extend, cancel, abridge, or otherwise
modify, or accept surrender of, or renew, any Lease without the written
consent of Mortgagee other than in the ordinary course of business, (e) not
assign, transfer or mortgage any Lease without the written consent of
Mortgagee; (f) not assign, transfer, pledge or mortgage any Rent; (g) not
waive, excuse, release or condone any nonperformance of any covenant of any
Lease by any Lessee other than in the ordinary course of business; (h) give
to Mortgagee duplicate notice of each material default by each Lessee; (i)
on all Leases executed after the date hereof, cause each Lessee to agree
(and each Lessee under each Lease executed after the date hereof does so
agree) to give to Mortgagee written notice of each and every
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material default by Mortgagor under its Lease and not exercise any remedies
under such Lease unless Mortgagee fails to cure such material default within
a reasonable period after Mortgagee has received such notice; provided, that
Mortgagee shall never have any obligation or duty to cure any such material
default; (j) enforce its rights with regard to all Leases in the ordinary
course of business; and (k) not enter into any Lease, affecting the
Mortgaged Property or any part thereof unless otherwise permitted under the
Agreement without the prior approval of Mortgagee.
Section 3.05 Mortgagee Not Liable. Mortgagee shall not be obligated
to perform or discharge, nor does it hereby undertake to perform or
discharge, any obligation, duty or liability under any Lease, or under or by
reason of this assignment, and Mortgagor shall and does hereby agree to
indemnify and to hold Mortgagee harmless from and against any and all
liability, loss or damage which Mortgagee may or might incur under any Lease
or under or by reason of this assignment and from and against any and all
claims and demands whatsoever which may be asserted against Mortgagee by
reason of any alleged obligations or undertakings on its part to perform or
discharge any of the terms, covenants or agreements contained in any Lease.
Should Mortgagee incur any such liability, loss or damage under any Lease or
under or by reason of this assignment, or in the defense of any such claims
or demands, the amount thereof, including all costs, expenses and attorneys'
fees, shall be secured hereby and constitute part of the Secured
Obligations, and Mortgagor shall reimburse Mortgagee therefore immediately
upon demand, and upon the failure of Mortgagor to do so Mortgagee may
declare all sums secured by this Mortgage immediately due and payable.
Section 3.06 Estoppel Certificates. On all Leases executed after
the date hereof, all Leases shall provide for the giving by the Lessee of
certificates with respect to the status of such Leases, and Mortgagor shall
exercise its right to request such certificates within ten (10) days of any
demand therefor by Mortgagee. Mortgagor shall furnish to Mortgagee, within
ten (10) days after a request by Mortgagee to do so, an executed counterpart
of all Leases.
Section 3.07 Lease Approval Requirements. On all Leases executed
after the date hereof, all Leases and Lessees of the Premises, or any part
thereof, must be acceptable to and approved by Mortgagee unless otherwise
provided under the Agreement; and all Lessees shall execute such estoppel
certificates, subordinations, attornments and other agreements as Mortgagee
may require. Under no circumstances shall Mortgagee be liable for any
obligation to pay any leasing commission, brokerage fee or similar fee or
charge in connection with any Lease nor shall Mortgagee be obligated to
complete any Improvements for the benefit of any Lessee.
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ARTICLE IV
MISCELLANEOUS
Section 4.01 Benefit of Mortgagee. All of the grants, covenants,
terms, provisions and conditions of this Mortgage shall run with the land
and shall apply to, bind and inure to the benefit of the successors and
assigns of the respective parties hereto; provided, that Mortgagor may not
assign its obligations hereunder without the prior written consent of
Mortgagee.
Section 4.02 Savings Clause. In the event any one or more of the
provisions contained in this Mortgage shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall, at the option of Mortgagee, not affect
any other provision of this Mortgage but this Mortgage shall be construed as
if such invalid, illegal or unenforceable provision had never been contained
herein or therein.
Section 4.03 Notices. All notices hereunder shall be given pursuant
to the terms of Section 11.1 of the Agreement.
Section 4.04 Governing Law. This Mortgage shall, without regard to
place of contract or payment, be construed and enforced according to the
laws of the state where the Mortgaged Property is located, all without
regard to principles of conflict of laws.
Section 4.05 No Change. Neither this Mortgage nor any provision
hereof may be changed, waived, discharged or terminated, except by an
instrument in writing, signed by Mortgagee and Mortgagor.
Section 4.06 Security Agreement and Fixture Filing. This Mortgage
shall be deemed to be a security agreement and fixture filing pursuant to
the Uniform Commercial Code of the state where the Mortgaged Property is
located.
Section 4.07 No Usury. In the event that Mortgagee, in enforcing
its rights hereunder, determines that charges and fees incurred in
connection with the Secured Obligations may, under the applicable usury
laws, cause the interest rate herein to exceed the maximum allowed by law,
then such interest shall be recalculated and any excess over the maximum
interest permitted by said laws shall be credited to the then principal
outstanding balance to reduce said balance by that amount. It is the intent
of the parties hereto that Mortgagor under no circumstances shall be
required to pay, nor shall Mortgagee be entitled to collect, any interest
which is in excess of the maximum legal rate permitted under the applicable
usury laws.
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Section 4.08 Effect of Partial Release. No release of any part of
the Mortgaged Property or of any other property conveyed to secure the
obligations secured hereby shall in any way alter, vary or diminish the
force, effect or lien or security interest of this Mortgage on the Mortgaged
Property or portion thereof remaining subject to the lien and security
interest created hereby.
Section 4.09 Mortgagee's Dealing with Successors and Lessees. In
the event Mortgagor or any of Mortgagor's successors conveys or leases
without the prior approval of Mortgagee except as otherwise permitted herein
or in the Agreement any interest in the Mortgaged Property, or any part
thereof, to any other party, Mortgagee may deal with any owner or lessee of
any part of the Mortgaged Property with reference to this Mortgage and to
the Secured Obligations, either by forbearance on the part of Mortgagee or
release of all or any part of the Mortgaged Property or of any other
property securing payment of any Secured Obligations, without in any way
modifying or affecting Mortgagee's rights, remedies, liens or security
interests hereunder (including the right to exercise any one or more of the
remedies described or referred to in Article I, Article II, Article III or
Article IV hereof in the event such conveyance is made in contravention of
the provisions of this Mortgage) or the liability of Mortgagor or any other
party liable for the payment of the Secured Obligations, in whole or in
part. This shall not be construed to allow any such conveyance or leasing by
Mortgagor, except as permitted herein or in the Agreement.
Section 4.10 No Waiver by Mortgagee. All options and rights of
election herein provided for the benefit of Mortgagee are continuing, and
the failure to exercise any such option or right or election upon a
particular default or breach or upon any subsequent default or breach shall
not be construed as waiving the right to exercise such option or election at
any later date. By the acceptance of payment of principal or interest after
its due date, Mortgagee does not waive the right either to require prompt
payment when due of all other amounts secured hereby or to regard as an
Event of Default the failure to pay any other such amounts. No exercise of
the rights and powers herein granted and no delay or omission in the
exercise of such rights and powers shall be held to exhaust the same or be
construed as a waiver thereof, and every such right and power may be
exercised at any time and from time to time. All grants, covenants, terms
and conditions hereof shall bind Mortgagor and all successive owners of the
Premises.
Section 4.11 Headings Descriptive. The headings of the several
sections and subsections of this Mortgage are inserted for convenience only
and shall not in any way affect the meaning or construction of any provision
of this Mortgage.
SECTION 4.12 WAIVER OF TRIAL BY JURY. THE MORTGAGOR AND THE
MORTGAGEE WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR
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PROCEEDING BASED UPON, ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS
MORTGAGE.
Section 4.13 Indemnification. The Mortgagor agrees to pay, and to
save, indemnify and keep the Mortgagee and its respective directors,
officers, employees, attorneys, experts, and agents harmless from, any and
all liabilities, costs and expenses (including, without limitation, legal
fees and expenses), losses or damages (i) with respect to, or resulting
from, any delay in paying, any and all excise, sales or other taxes which
may be payable or determined to be payable with respect to any of the
Mortgaged Property, (ii) with respect to, or resulting from, any delay in
complying with any requirement of law applicable to any of the Mortgaged
Property or (iii) in connection with any of the transactions contemplated by
this Mortgage, including the fees and disbursements of counsel and of any
other experts, which Mortgagee or its respective directors, officers,
employees, attorneys, experts or agents may incur in connection with (w) the
administration or enforcement of this Mortgage, including such expenses as
are incurred to preserve the value of the Mortgaged Property and the
validity, perfection, rank and value of any liens granted hereunder, (x) the
collection, sale or other disposition of any of the Mortgaged Property, (y)
the exercise by the Mortgagee of any of the rights conferred upon it
hereunder or (z) any Default or Event of Default, but excluding any such
liabilities, costs and expenses, losses or damages incurred solely by reason
of the gross negligence or willful misconduct of the party seeking to be
indemnified as determined by a final order or judgment of a court of
competent jurisdiction.
Any amount due hereunder which is not paid on demand shall bear
interest at a rate equal to the Default Rate and shall be a lien upon the
Mortgaged Property and shall be secured hereby.
The agreements of the Mortgagor contained in this Section 4.13
shall survive the payment and performance of the Secured Obligations and the
termination of the liens and security interests granted hereby. All of the
Mortgagor's obligations to indemnify Mortgagee and its directors, officers,
employees, attorneys, experts and agents hereunder shall (without
duplication) be in addition to, and shall not limit in any way, the
Mortgagor's indemnification obligations contained in the Agreement or in any
other Loan Document.
Section 4.14 Advances under the Agreement. It is understood and
agreed that the funds to be advanced under this Mortgage are to be advanced
subject to and in accordance with the provisions of the Agreement and the
other Loan Documents, and that all sums advanced thereunder or hereunder are
included within the Secured Obligations secured hereby.
Section 4.15 Particular State Provisions. There is at-
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tached hereto and made a part hereof Exhibit B containing additional
provisions that are necessary or appropriate under the laws of the state in
which the Mortgaged Property is located or pursuant to the provisions of any
permitted property liens.
IN WITNESS WHEREOF, this Mortgage has been duly executed by
Mortgagor as of the day and year first above written.
MORTGAGOR
PAYLESS CASHWAYS, INC.
By:
-------------------------------
Name:
------------------------
Title:
------------------------
34
EXHIBIT A
DESCRIPTION OF LAND
35
EXHIBIT B
LOCAL LAW PROVISIONS
