EXHIBIT (4)(l)(6)
This instrument was prepared by the
attorney described below and, when recorded,
the recorded counterparts should be returned to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS, SECURITY AGREEMENT, FINANCING STATEMENT
AND FIXTURE FILING
dated as of June 21, 2002
by
XEROX CORPORATION
the Mortgagor,
to
BANK ONE, NA
as Collateral Agent for the Lenders,
the Mortgagee
Property:
County of Monroe
State of New York
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THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS AND SECURES
OBLIGATIONS CONTAINING PROVISIONS FOR CHANGES IN INTEREST RATES.
TABLE OF CONTENTS
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Page
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RECITALS ................................................................... 1
GRANTING CLAUSES ........................................................... 1
I. GRANTING CLAUSE .............................................. 2
II. GRANTING CLAUSE .............................................. 2
III. GRANTING CLAUSE .............................................. 3
IV. GRANTING CLAUSE .............................................. 3
V. GRANTING CLAUSE .............................................. 4
VI. GRANTING CLAUSE .............................................. 4
VII. GRANTING CLAUSE .............................................. 4
VIII. GRANTING CLAUSE .............................................. 5
IX. GRANTING CLAUSE .............................................. 5
X. GRANTING CLAUSE .............................................. 5
XI. GRANTING CLAUSE .............................................. 5
XII. GRANTING CLAUSE .............................................. 6
XIII. GRANTING CLAUSE .............................................. 6
ARTICLE 1
Definitions and Interpretations
Section 1.01. Definitions .................................................. 7
Section 1.02. Interpretation ............................................... 15
Section 1.03. Resolution of Drafting Ambiguities ........................... 16
ARTICLE 2
Certain Representations, Warranties and Covenants
Section 2.01. Title, Authority and Effectiveness ........................... 16
Section 2.02. Secured Obligations .......................................... 18
Section 2.03. Impositions .................................................. 18
Section 2.04. Insurance Requirements ....................................... 18
Section 2.05. Care of the Property ......................................... 18
Section 2.06. Liens ........................................................ 19
Section 2.07. Transfer ..................................................... 19
Section 2.08. Certain Amounts .............................................. 19
ARTICLE 3
Insurance, Casualty and Condemnation
Section 3.01. Insurance .................................................... 20
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/1/ The Table of Contents is not part of this Mortgage.
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Page
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Section 3.02. Casualty .................................................... 20
Section 3.03. Insurance Proceeds .......................................... 20
Section 3.04. Condemnation ................................................ 20
Section 3.05. Condemnation Awards ......................................... 20
ARTICLE 4
Certain Secured Obligations
Section 4.01. Maximum Amount of Indebtedness .............................. 21
Section 4.02. Treatment of Borrowing and Repayments ....................... 21
Section 4.03. Reduction of Secured Loan Amount ............................ 21
Section 4.04. Application of Payments and Repayments ...................... 22
Section 4.05. Limitation on Prepayment; Effect of Excessive Prepayment .... 22
Section 4.06. No Limitation on Certain Rights ............................. 22
Section 4.07. Right to Perform Obligations ................................ 22
Section 4.08. Changes in the Laws Regarding Taxation ...................... 23
Section 4.09. Indemnification ............................................. 23
ARTICLE 5
Defaults, Remedies and Rights
Section 5.01. Events of Default ........................................... 24
Section 5.02. Remedies .................................................... 24
Section 5.03. Waivers by the Mortgagor .................................... 28
Section 5.04. Jurisdiction and Process .................................... 29
Section 5.05. Sales ....................................................... 29
Section 5.06. Proceeds .................................................... 32
Section 5.07. Assignment of Leases ........................................ 32
Section 5.08. Dealing with the Mortgaged Property ......................... 34
Section 5.09. Information and Right of Entry .............................. 34
ARTICLE 6
Security Agreement and Fixture Filing
Section 6.01. Security Agreement .......................................... 35
Section 6.02. Fixture Filing .............................................. 35
ARTICLE 7
Miscellaneous
Section 7.01. Concerning the Mortgagee .................................... 36
Section 7.02. Release of Mortgaged Property ............................... 37
Section 7.03. Notices ..................................................... 38
Section 7.04. Amendments in Writing ....................................... 38
Section 7.05. Severability ................................................ 38
Section 7.06. Binding Effect .............................................. 38
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Section 7.07. GOVERNING LAW ............................................... 39
Section 7.08. Waiver of Jury Trial ........................................ 39
Section 7.09. Local Law Provisions ........................................ 39
Section 7.10. Multisite Real Estate Transaction ........................... 39
Exhibit A - Description of the Land
Exhibit B - Permitted Encumbrances
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND
FIXTURE FILING (this "Mortgage") is dated as of ______ __, 2002 by XEROX
CORPORATION, a New York corporation, having an address at 000 Xxxx Xxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000 ("Xerox" or the "Mortgagor"), to BANK ONE, NA, a
national banking association, as Collateral Agent for itself and the other
Secured Parties (hereinafter defined) (the "Mortgagee"), having an address at 0
Xxxx Xxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
W I T N E S S E T H:
RECITALS
WHEREAS, Xerox, Xerox Credit Corporation, a Delaware corporation ("XCC"),
the Overseas Borrowers party thereto and certain financial institutions are
parties to a Revolving Credit Agreement dated as of October 22, 1997 (the
"Existing Credit Agreement"), pursuant to which the Lenders had $7,000,000,000
of loans outstanding; and
WHEREAS, Xerox, the Overseas Borrowers from time to time party thereto, the
Lenders party thereto, Bank One, NA, as Administrative Agent, Collateral Agent
and LC Issuing Bank, JPMorgan Chase Bank, as Documentation Agent, and Citibank,
N.A., as Syndication Agent, are parties to an Amended and Restated Credit
Agreement dated as of June __, 2002 (as amended from time to time, the "Credit
Agreement") pursuant to which the Existing Credit Agreement and the loans
outstanding thereunder have been refinanced; and
WHEREAS, pursuant to the Credit Agreement, Xerox, the Subsidiary Guarantors
party thereto and Bank One, NA, as Collateral Agent, have entered into the
Security Agreement; and
WHEREAS, the maximum amount of principal indebtedness that may be secured
by this Mortgage at execution hereof or which under any contingency may become
secured hereby at any time hereafter is $[ ] (the "Secured Loan Amount"); and
WHEREAS, the scheduled maturity date of the latest to mature of the Secured
Obligations is April 30, 2005 or, if such day is not a Business Day, the next
preceding Business Day.
GRANTING CLAUSES
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, for the purpose of securing the due and punctual payment,
performance and observance of the Secured Obligations and intending to be bound
hereby, the Mortgagor does hereby GRANT, BARGAIN, SELL, CONVEY, MORTGAGE,
ASSIGN, TRANSFER and WARRANT to the Mortgagee and its successors as collateral
agent, with power of sale and right of entry as hereinafter provided, and, to
the extent covered by the UCC, does hereby GRANT and WARRANT to the Mortgagee a
continuing first security interest in and to all of the property and rights
described in the following Granting Clauses (all of which property and rights
are collectively called the "Mortgaged Property"), to wit:
I. GRANTING CLAUSE
Land. All estate, right, title and interest of the Mortgagor in, to, under
or derived from: the lots, pieces, tracts or parcels of land located in Monroe
County, New York, more particularly described in Exhibit A (the "Land").
II. GRANTING CLAUSE
Improvements. All estate, right, title and interest of the Mortgagor in,
to, under or derived from: all buildings, structures, facilities and other
improvements of every kind and description now or hereafter located on or
attached to the Land, including all parking areas, roads, driveways, walks,
fences, walls, berms, recreation facilities, drainage facilities, lighting
facilities and other site improvements; all water, sanitary and storm sewer,
drainage, electricity, steam, gas, telephone, telecommunications and other
utility equipment and facilities; all plumbing, lighting, heating, ventilating,
air-conditioning, refrigerating, incinerating, compacting, fire protection and
sprinkler, surveillance and security, vacuum cleaning, public address and
communications equipment and systems; all screens, awnings, floor coverings,
partitions, elevators, escalators, motors, electrical, computer and other
wiring, machinery, pipes, fittings and racking and shelving; and all other items
of fixtures, equipment and personal property of every kind and description, in
each case now or hereafter located on the Land or affixed (actually or
constructively) to the buildings and other improvements located on the Land
which by the nature of their location thereon or affixation thereto are real
property under Applicable Law; and including all materials intended for the
construction, reconstruction, repair, replacement, alteration, addition or
improvement of or to such buildings, equipment, fixtures, structures and
improvements, all of which materials shall be deemed to be part of the Mortgaged
Property immediately upon delivery thereof on the Land and to be part of the
improvements immediately upon their incorporation therein (the foregoing being
collectively called the "Improvements").
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III. GRANTING CLAUSE
Equipment. All estate, right, title and interest of the Mortgagor in, to,
under or derived from: all equipment, fixtures, chattels and articles of
personal property owned by the Mortgagor or in which the Mortgagor has or shall
acquire an interest, wherever situated, and now or hereafter located on, or in,
or affixed (actually or constructively) to, the Land or the Improvements,
whether or not affixed thereto and which are not real property under Applicable
Law, including all partitions, shades, blinds, curtains, draperies, carpets,
rugs, furniture and furnishings; all heating, lighting, plumbing, ventilating,
air conditioning, refrigerating, gas, steam, electrical, incinerating and
compacting plants, systems, fixtures and equipment; all elevators, stoves,
ranges, other kitchen and laundry appliances, vacuum and other cleaning systems,
call systems, switchboards, sprinkler systems and other fire prevention, alarm
and extinguishing apparatus and materials; and all motors, machinery, pipes,
conduits, dynamos, engines, compressors, generators, boilers, stokers, furnaces,
pumps, trunks, ducts, appliances, equipment, utensils, tools, implements,
fittings and fixtures, and including any of the foregoing that is temporarily
removed from the Land or Improvements to be repaired and later reinstalled
thereon or therein (the foregoing being collectively called the "Equipment"; and
the Land with the Improvements thereon and the Equipment therein being
collectively called the "Property"). If any of the Equipment under this Granting
Clause is covered by an equipment lease, title retention or security agreement,
(i) the grant under this Granting Clause (but not the definition of "Equipment"
for the other purposes hereof) excludes any Equipment which cannot be
transferred or encumbered by the Mortgagor without causing a termination of such
agreement or default thereunder, otherwise (ii) the grant under this Granting
Clause includes Mortgagor's right, title and interest in, to and under such
agreement, together with the benefits of all deposits and payments now or
hereafter made thereunder by or on behalf of the Mortgagor and subject to all of
the terms and conditions of such agreement and the Liens and security interests
thereunder, except as otherwise provided under the Security Agreement and the
Credit Agreement.
IV. GRANTING CLAUSE
Appurtenant Rights. All estate, right, title and interest of the Mortgagor
in, to, under or derived from: all tenements, hereditaments and appurtenances
now or hereafter relating to the Property; the streets, roads, sidewalks and
alleys abutting the Property; all strips and gores within or adjoining the Land;
all land in the bed of any body of water adjacent to the Land; all land
adjoining the Land created by artificial means or by accretion; all air space
and rights to use air space above the Land; all development or similar rights
now or hereafter appurtenant to the Land; all rights of ingress and egress now
or hereafter appertaining to the Property; all easements, servitudes, privileges
and rights of way now or hereafter appertaining to the
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Property; and all royalties and other rights now or hereafter appertaining to
the use and enjoyment of the Property, including alley, party walls, support,
drainage, crop, timber, agricultural, horticultural, oil, gas and other mineral,
water stock, riparian and other water rights now or hereafter appertaining to
the use and enjoyment of the Property.
V. GRANTING CLAUSE
Agreements. All estate, right, title and interest of the Mortgagor in, to,
under or derived from: all Insurance Policies (including all unearned premiums
and dividends thereunder); all guarantees and warranties relating to the
Property; all supply and service contracts for water, sanitary and storm sewer,
drainage, electricity, steam, gas, telephone and other utilities now or
hereafter relating to the Property; and all other contracts and agreements
affecting or relating to the use, enjoyment or occupancy of the Property except
to the extent that the grant of a security interest therein would constitute a
material violation of a valid and enforceable restriction in favor of a third
party unless and until all required consents shall have been obtained (all of
the foregoing being collectively called the "Agreements").
VI. GRANTING CLAUSE
Leases. All estate, right, title and interest of the Mortgagor (under which
Mortgagor is landlord, sublandlord or licensor) in, to, under or derived from:
all Leases now or hereafter in effect, whether or not of record, for the use or
occupancy of all or any part of the Property except to the extent that the grant
of a security interest therein would constitute a material violation of a valid
and enforceable lease with a third party unless and until all required consents
shall have been obtained.
VII. GRANTING CLAUSE
Rents, Issues and Profits. All estate, right, title and interest of the
Mortgagor in, to, under or derived from: all rents, royalties, issues, profits,
receipts, revenue, income and other benefits now or hereafter accruing with
respect to the Property, including all rents and other sums now or hereafter
payable pursuant to the Leases; all other sums now or hereafter payable with
respect to the use, occupancy, management, operation or control of the Property;
and all other claims, rights and remedies now or hereafter belonging or accruing
with respect to the Property, including fixed, additional and percentage rents,
occupancy charges, security deposits, parking, maintenance, common area, tax,
insurance, utility and service charges and contributions (whether collected
under
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the Leases or otherwise), proceeds of sale of electricity, gas, heating,
air-conditioning and other utilities and services (whether collected under the
Leases or otherwise), and deficiency rents and liquidated damages following
default or cancellation (the foregoing rents and other sums described in this
Granting Clause being collectively called the "Rents"), all of which the
Mortgagor hereby irrevocably directs be paid to the Mortgagee, subject to the
license granted to the Mortgagor pursuant to Section 5.07(b), to be held,
applied and disbursed as provided in this Mortgage.
VIII. GRANTING CLAUSE
Permits. All estate, right, title and interest of the Mortgagor in, to,
under or derived from all licenses, authorizations, certificates, variances,
consents, approvals and other permits now or hereafter appertaining to the
Property (the foregoing being collectively called the "Permits"), excluding from
the grant under this Granting Clause (but not the definition of the term
"Permits" for the other purposes hereof) any Permits which cannot be transferred
or encumbered by the Mortgagor without causing a default thereunder or a
termination thereof.
IX. GRANTING CLAUSE
Books and Records. All estate, right, title and interest of the Mortgagor
in, to, under or derived from all books and records, including tenant files,
credit files, customer files, computer print outs, files, programs and other
computer and electronic materials and records, now or hereafter relating to the
Property.
X. GRANTING CLAUSE
Intangible Property. All estate, right, title and interest of the Mortgagor
in, to, under or derived from the Property and other intangible property not
described in the foregoing Granting Clauses now or hereafter relating to the use
and operation of the Property as a going concern.
XI. GRANTING CLAUSE
Deposits, Proceeds and Awards. All estate, right, title and interest of the
Mortgagor in, to, under or derived from all amounts deposited with the Mortgagee
under the Loan Documents with respect to the Property, including all Insurance
Proceeds, Awards and title insurance proceeds under any title insurance policy
now or hereafter held by the Mortgagor (the foregoing being collectively called
"Deposits"), proceeds of any Transfer, financing, refinancing or conversion into
cash or liquidated claims, whether voluntary or involuntary, of any of the
Mortgaged Property; and all rights, dividends and other claims of any kind
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whatsoever (including damage, secured, unsecured, priority and bankruptcy
claims) now or hereafter relating to any of the Mortgaged Property (except to
the extent that the grant of a security interest therein would constitute a
material violation of a valid and enforceable restriction in favor of a third
party unless and until all required consents shall have been obtained), all of
which the Mortgagor hereby irrevocably directs be paid to the Mortgagee to the
extent provided hereunder, to be held, applied and disbursed as provided in this
Mortgage.
XII GRANTING CLAUSE
Refunds, Credits or Reimbursements. All estate, right, title and
interest of the Mortgagor in and to any and all real estate tax refunds payable
to the Mortgagor with respect to the Property, and refunds, credits or
reimbursements payable with respect to bonds, escrow accounts or other sums
payable in connection with the use, development, or ownership of the Property.
XIII GRANTING CLAUSE
Additional Property. All greater, additional or other estate, right,
title and interest of the Mortgagor in, to, under or derived from the Mortgaged
Property hereafter acquired by the Mortgagor, including all right, title and
interest of the Mortgagor in, to, under or derived from all extensions,
improvements, betterments, renewals, substitutions and replacements of, and
additions and appurtenances to, any of the Mortgaged Property hereafter acquired
by or released to the Mortgagor or constructed or located on, or attached to,
the Property, in each case, immediately upon such acquisition, release,
construction, location or attachment; all estate, right, title and interest of
the Mortgagor in, to, under or derived from any other property and rights which
are, by the provisions of the Security Documents, required to be subjected to
the Lien hereof.
TO HAVE AND TO HOLD the Mortgaged Property, together with all estate,
right, title and interest of the Mortgagor and anyone claiming by, through or
under the Mortgagor in, to, under or derived from the Mortgaged Property and all
rights and appurtenances relating thereto, to the Mortgagee and its successors
and assigns, forever, subject to Permitted Liens.
PROVIDED ALWAYS that this Mortgage is upon the express condition that
the Mortgaged Property shall be released from the Lien of this Mortgage in full
or in part in the manner and at the time provided in Section 7.02; and provided
further, that notwithstanding anything herein to the contrary, the Mortgaged
Property shall include only the real property (including fixtures) hereinabove
described and the Collateral described in the Security Agreement.
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THE MORTGAGOR ADDITIONALLY COVENANTS AND AGREES WITH THE MORTGAGEE AS
FOLLOWS:
ARTICLE 1
Definitions and Interpretations
Section 1.1. Definitions. (a) Capitalized terms used in this Mortgage, but
not otherwise defined herein, are defined in, or are defined by reference in,
the Credit Agreement or, if not therein, in the Security Agreement, and have the
same meanings herein as therein.
(b) In addition, as used herein, the following terms have the following
meanings:
"Actionable Event of Default"means an Event of Default specified in clause
(a), (b), (h), (i) or (j) of Section 7.01 of the Credit Agreement.
"Agreements" is defined in Granting Clause V.
"Awards" means, at any time, all awards or payments paid or payable by
reason of any Condemnation or in connection with any agreement with any
condemning authority which has been made in settlement of any proceeding
relating to a Condemnation.
"Bankruptcy Code" (or "Code") means the Bankruptcy Code of 1978, as
amended.
"Borrowers" means Xerox and the Overseas Borrowers.
"Business Day" is defined in the Credit Agreement.
"CA Secured Obligations" means (a) all principal of and premium and
interest (including, without limitation, any Post-Petition Interest) on any Loan
outstanding from time to time under any LC Reimbursement Obligations (as defined
in the Credit Agreement) or any promissory note issued pursuant to, the Credit
Agreement, (b) all other amounts payable by any Borrower under the Credit
Agreement or under any other Loan Document (as the same may be amended,
restated, supplemented or otherwise modified from time to time) (including any
Post-Petition Interest with respect to such amounts), and (c) any renewals,
refinancings or extensions of any of the foregoing (including Post-Petition
Interest).
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"Casualty" means any damage to, or destruction of, the Property by
reason of fire or any other cause or event.
"Collateral" is defined in the Security Agreement.
"Collateral Account" is defined in the Security Agreement.
"Collateral Agent" is defined in the Recitals.
"Condemnation" means any condemnation or other taking or temporary or
permanent requisition of the Property, any interest therein or right appurtenant
thereto, or any change of grade affecting the Property, as the result of the
exercise of any right of condemnation or eminent domain. A Transfer to a
governmental authority in lieu or anticipation of Condemnation shall be deemed
to be a Condemnation.
"Contingent CA Secured Obligation" means, at any time, any CA Secured
Obligation (or portion thereof) that is contingent in nature at such time,
including any CA Secured Obligation that is: (i) an obligation to reimburse a
bank for drawings not yet made under a letter of credit issued by it, (ii) any
other obligation (including any guarantee) that is contingent in nature at such
time, or (iii) an obligation to provide collateral to secure any of the
foregoing types of obligations.
"Credit Agreement" is defined in the second WHEREAS clause.
"Deposits" is defined in Granting Clause XI.
"Domestic Security Documents" means the Security Agreement, this
Mortgage, the Other Mortgages and each other Security Document (as defined in
the Credit Agreement) executed and delivered by a Domestic Credit Party (as
defined in the Credit Agreement) pursuant to the Credit Agreement.
"Equipment" is defined in Granting Clause III.
"ESOP Guarantee Agreement" means the Guaranty and Agreement made by
Xerox dated as of October 1, 1993 (as amended from time to time) relating to the
Guaranteed ESOP Restructuring Notes due October 1, 2003 issued by Xerox
Corporation Employee Stock Ownership Plan Trust.
"ESOP Notes" means the 7.89% (7.82% since January 1, 1993) Guaranteed
Series B ESOP Notes due October 1, 2002 and the Guaranteed ESOP
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Restructuring Notes due October 1, 2003, each issued by Xerox Corporation
Employee Stock Ownership Plan Trust, a Massachusetts trust.
"ESOP Secured Obligations" means the obligations of Xerox under the
ESOP Guarantee Agreement and shall include all outstanding amounts of the loans
guaranteed under the ESOP Guarantee Agreement and accrued and unpaid interest
and other amounts owing with respect thereto.
"Event of Default" means an "Event of Default" under the Credit
Agreement.
"Existing Credit Agreement" is defined in the first WHEREAS clause.
"GAAP" is defined in the Credit Agreement.
"Hazardous Materials" is defined in Credit Agreement.
"Impositions" means all taxes (including real estate taxes and transfer
taxes), assessments (including all assessments for public improvements or
benefits, whether or not commenced or completed prior to the date hereof), gas,
electricity, steam, water, sewer or other rents, rates and charges, excises,
levies, license fees, permit fees, inspection fees and other authorization fees
and other charges, in each case whether general or special, ordinary or
extraordinary, foreseen or unforeseen, of every character (including all
interest and penalties thereon), which at any time may be assessed, levied,
confirmed or imposed on or in respect of, or be a Lien upon, (i) the Property,
any other Mortgaged Property or any interest therein, (ii) any occupancy, use or
possession of, or activity conducted on, the Property, (iii) the Rents, or (iv)
the Secured Obligations or the Security Documents, but excluding income, excess
profits, franchise, capital stock, estate, inheritance, succession, gift or
similar taxes of the Mortgagor or any Secured Party, except to the extent that
such taxes of the Mortgagor or any Secured Party are imposed in whole or in part
in lieu of, or as a substitute for, any taxes which are or would otherwise be
Impositions.
"Improvements" is defined in Granting Clause II.
"Insurance Policies" means the insurance policies and coverages
required to be maintained by the Mortgagor with respect to the Property pursuant
to Section 5.07 of the Credit Agreement.
"Insurance Premiums" means all premiums payable under the Insurance
Policies.
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"Insurance Proceeds" means, at any time, all insurance proceeds or
payments to which the Mortgagor may be or become entitled under the Insurance
Policies by reason of any Casualty plus all insurance proceeds and payments to
which the Mortgagor may be or become entitled by reason of any Casualty under
any other insurance policies or coverages maintained by the Mortgagor with
respect to the Property.
"Insurance Requirements" means all provisions of the Insurance
Policies, all requirements of the issuer of any of the Insurance Policies and
all orders, rules, regulations and any other requirements of the National Board
of Fire Underwriters (or any other body exercising similar functions) applicable
to the Property, any adjoining vaults, sidewalks, parking areas or driveways, or
any use or condition thereof.
"Land" is defined in Granting Clause I.
"LC Disbursement" means a payment made by an LC Issuing Bank in respect
of a drawing under a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all Letters of Credit outstanding at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by the
Borrowers at such time. The LC Exposure of any Revolving Lender (as defined in
the Credit Agreement) at any time will be its Revolving Percentage (as defined
in the Credit Agreement) of the total LC Exposure at such time.
"Lease" means each lease, sublease, tenancy, subtenancy, license,
franchise, concession or other occupancy agreement relating to the Property,
together with any guarantee of the obligations of the tenant thereunder or any
right to possession under the Bankruptcy Code or any other Applicable Law in the
event of the rejection of any Lease by the landlord or its trustee pursuant to
said Code or said Applicable Law.
"Legal Requirements" means all provisions of the Leases, Agreements,
Permits and all provisions of Applicable Laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, rules, regulations,
directions and requirements of, and agreements with, governmental bodies,
agencies or officials, now or hereafter applicable to the Property, or any use
or condition thereof.
"Lenders" means the "Lenders" under the Credit Agreement.
"Letter of Credit" means any letter of credit issued pursuant to the
Credit Agreement.
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"Lien" is defined in the Credit Agreement.
"Loan Documents" is defined in the Credit Agreement.
"Loans" means loans made by the Lenders to the Borrowers pursuant to
the Credit Agreement.
"Material Adverse Effect" is defined in Credit Agreement.
"Mortgage" is defined in the Preamble.
"Mortgaged Property" is defined in the Granting Clauses.
"Mortgagee" is defined in the Preamble.
"Mortgagor" is defined in the Preamble.
"Non-Contingent CA Secured Obligation" means at any time any CA Secured
Obligation (or portion thereof) that is not a Contingent CA Secured Obligation
at such time.
"Other Mortgages" is defined in Section 7.10.
"Overseas Borrowers" means (i) XCE, (ii) XCD and (iii) any other
Qualified Foreign Subsidiary (as defined in the Credit Agreement) as to which an
Election to Participate shall have been delivered to the Administrative Agent in
accordance with Section 2.19 of the Credit Agreement; provided that the status
of any of the foregoing as an Overseas Borrower shall terminate if and when an
Election to Terminate (as defined in the Credit Agreement) is delivered to the
Administrative Agent in accordance with Section 2.19 of the Credit Agreement.
"Permits" is defined in Granting Clause VIII.
"Permitted Encumbrances" means the Security Interests, Liens and other
matters described in Exhibit B hereto.
"Permitted Liens" means the Security Interests and Liens on the
Collateral permitted to be created or assumed or to exist pursuant Section 6.02
of the Credit Agreement or pursuant to the Security Agreement.
"Person" is defined in the Credit Agreement.
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"Post-Default Rate" means a rate per annum equal to the sum of 2% plus
the rate applicable to Base Rate (as defined in the Credit Agreement) Loans from
time to time.
"Post-Petition Interest" means, with respect to any obligation of any
Person, any interest that accrues after the commencement of any case, proceeding
or other action relating to the bankruptcy, insolvency or reorganization of such
Person (or would accrue but for the operation of applicable bankruptcy or
insolvency laws), whether or not such interest is allowed or allowable as a
claim in any such proceeding.
"Proceeds" is defined in the Security Agreement.
"Property" is defined in Granting Clause III.
"Receiver" is defined in Section 5.02(a)(iv).
"Release Conditions" means the following conditions for releasing all
the Mortgaged Property and terminating the Security Interests:
(i) all Revolving Commitments under the Credit Agreement
shall have expired or been terminated;
(ii) all Non-Contingent CA Secured Obligations shall have
been paid in full; and
(iii) no Contingent CA Secured Obligation shall remain
outstanding;
provided that the condition in clause (iii) shall not apply to outstanding
Letters of Credit if (x) no Event of Default has occurred and is continuing and
(y) Xerox or the applicable Borrower has granted to the Collateral Agent, for
the benefit of the Revolving Lenders (or, if the obligations of the Revolving
Lenders to reimburse the applicable LC Issuing Banks have been terminated, to
such LC Issuing Banks), a Security Interest in Liquid Investments (as defined in
the Security Agreement) (or causes a bank acceptable to the Required Revolving
Lenders or such LC Issuing Banks, as the case may be, to issue a letter of
credit naming the Collateral Agent or such LC Issuing Banks as beneficiary) in
an amount at least equal to 105% of the LC Exposure (plus any accrued and unpaid
interest thereon) as of the date of such termination, on terms and conditions
and pursuant to documentation reasonably satisfactory to the Required Revolving
Lenders (as defined in the Credit Agreement) or such LC Issuing Banks, as the
case may be.
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"Rents" is defined in Granting Clause VII.
"Required Lenders" is defined in the Credit Agreement.
"Restoration" means the restoration, repair, replacement or rebuilding
of the Property after a Casualty or Condemnation and "Restore" means to restore,
repair, replace or rebuild the Property after a Casualty or Condemnation, in
each case as nearly as possible to a value, utility and condition existing
immediately prior to such Casualty or Condemnation.
"Revolving Commitment" is defined in the Credit Agreement.
"Subsidiary" means any subsidiary of Xerox.
"Secured Loan Amount" is defined in the fourth WHEREAS clause of this
Mortgage.
"Secured Obligations" means CA Secured Obligations of the Mortgagor,
the Xerox Guarantee, the ESOP Secured Obligations and the XCFI Secured
Obligations.
"Secured Parties" means (i) with respect to the CA Secured Obligations,
the Agents, the Lenders and the LC Issuing Banks (as defined in the Credit
Agreement), (ii) with respect to the ESOP Secured Obligations, the holders of
the ESOP Notes and (iii) with respect to the XCFI Secured Obligations, the
Trustee under each of the XCFI Indentures (and any successor Trustee thereunder)
for the benefit of the holders of the XCFI Debentures.
"Secured Subsidiary Guarantor" means a Subsidiary Guarantor other than
XCC.
"Security Agreement" means the Guarantee and Security Agreement dated
as of June ___, 2002, among the Mortgagor, the Subsidiary Guarantors party
thereto and the Mortgagee pursuant to which the Mortgagor and the Secured
Subsidiary Guarantors grant to the Mortgagee a security interest in certain
personal property.
"Security Interests" means the security interests in the Collateral
granted under the Domestic Security Documents securing the Secured Obligations.
"Security Deposit" means any payment, note, letter of credit or other
security or deposit made or given by or on behalf of a tenant under a Lease as
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security for the performance of its obligations thereunder, and any interest
accrued thereon.
"Subsidiary Guarantors" means each Domestic Subsidiary listed on the
signature pages of the Security Agreement under the caption "Guarantors" and
each Domestic Subsidiary that shall, at any time, after the date thereof, become
a "Guarantor" pursuant to Section 19 of the Security Agreement.
"Transfer" means, when used as a noun, any sale, conveyance,
disposition, assignment, lease, license or other transfer and, when used as a
verb, to sell, convey, dispose, assign, lease, license or otherwise transfer, in
each case (i) whether voluntary or involuntary, (ii) whether direct or indirect
and (iii) including any agreement providing for a Transfer or granting any right
or option providing for a Transfer.
"Unavoidable Delays" means delays due to acts of God, fire, flood,
earthquake, explosion or other Casualty, inability to procure or shortage of
labor, equipment, facilities, sources of energy (including electricity, steam,
gas or gasoline), materials or supplies, failure of transportation, strikes,
lockouts, action of labor unions, Condemnation, litigation relating to Legal
Requirements, inability to obtain Permits or other causes beyond the reasonable
control of the Mortgagor, provided that lack of funds shall not be deemed to be
a cause beyond the control of the Mortgagor.
"UCC" means the Uniform Commercial Code as in effect in the State in
which the Mortgaged Property is located, provided that if by reason of mandatory
provisions of law, the perfection or the effect of perfection or non-perfection
or the priority of any Security Interest in any Collateral is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than the State in
which the Mortgaged Property is located, "Uniform Commercial Code" means the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of
the provisions hereof relating to such perfection, effect of perfection or
non-perfection or priority.
"XCD" means Xerox Canada Capital Ltd., a Canadian corporation.
"XCE" means Xerox Capital (Europe) plc, a company incorporated in
England and Wales.
"XCFI Debentures" means (a) the 10.70% Sinking Fund Debentures due 2006
issued pursuant to that certain Trust Indenture dated as of December 15, 1986,
as supplemented and amended by the First through Fourth Supplemental Trust
Indentures, among Xerox Canada Finance Inc., Xerox Canada Inc., Xerox
14
Canada Holdings Inc. and National Trust Company, as Trustee and (b) the 12.15%
Sinking Fund Debentures due 2007 issued pursuant to that certain Trust Indenture
dated as of October 27, 1987, as supplemented and amended by the First through
Fourth Supplemental Trust Indentures, among Xerox Canada Finance Inc., Xerox
Canada Inc., Xerox Canada Holdings Inc. and National Trust Company, as Trustee.
"XCFI Indentures" means (a) that certain Trust Indenture dated as of
December 15, 1986, as supplemented and amended by the First through Fourth
Supplemental Trust Indentures, among Xerox Canada Finance Inc., Xerox Canada
Inc., Xerox Canada Holdings Inc. and National Trust Company, as Trustee and (b)
that certain Trust Indenture dated as of October 27, 1987, as supplemented and
amended by the First through Fourth Supplemental Trust Indentures, among Xerox
Canada Finance Inc., Xerox Canada Inc., Xerox Canada Holdings Inc. and National
Trust Company, as Trustee.
"XCFI Secured Obligations" means the obligations of the Mortgagor under
the XCFI Indentures and shall include all amounts outstanding under the XCFI
Debentures and accrued and unpaid interest and other amounts owing with respect
thereto.
"Xerox Guarantee" means the Mortgagor's guarantee of the Overseas CA
Secured Obligations (as defined in the Security Agreement).
(c) In this Mortgage, unless otherwise specified, references to this
Mortgage, other Loan Documents, Leases, Permits and Agreements include all
amendments, supplements, consolidations, replacements, restatements, extensions,
renewals and other modifications thereof, in whole or in part.
Section 1.2. Interpretation. In this Mortgage, unless otherwise
specified: (a) singular words include the plural and plural words include the
singular; (b) words which include a number of constituent parts, things or
elements, including the terms Leases, Improvements, Land, Secured Obligations,
Property and Mortgaged Property, shall be construed as referring separately to
each constituent part, thing or element thereof, as well as to all of such
constituent parts, things or elements as a whole; (c) words importing any gender
include the other genders; (d) references to any Person include such Person's
successors and assigns and in the case of an individual, the word "successors"
includes such Person's heirs, devisees, legatees, executors, administrators and
personal representatives; (e) references to any statute or other law include all
applicable rules, regulations and orders adopted or made thereunder and all
statutes or other laws amending, consolidating or replacing the statute or law
referred to; (f) the words "consent", "approve", "agree" and "request", and
derivations thereof or words of similar import, mean the prior written consent,
approval, agreement or
15
request of the Person in question; (g) the words "include" and "including", and
words of similar import, shall be deemed to be followed by the words "without
limitation"; (h) the words "hereto", "herein", "hereof" and "hereunder", and
words of similar import, refer to this Mortgage in its entirety; (i) references
to Articles, Sections, Schedules, Exhibits, subsections, paragraphs and clauses
are to the Articles, Sections, Schedules, Exhibits, subsections, paragraphs and
clauses of this Mortgage; (j) the Schedules and Exhibits to this Mortgage are
incorporated herein by reference; (k) the titles and headings of Articles,
Sections, Schedules, Exhibits, subsections, paragraphs and clauses are inserted
as a matter of convenience and shall not affect the construction of this
Mortgage; (l) all obligations of the Mortgagor hereunder shall be satisfied by
the Mortgagor at the Mortgagor's sole cost and expense; and (m) all rights and
powers granted to the Mortgagee hereunder shall be deemed to be coupled with an
interest and be irrevocable.
Section 1.3. Resolution of Drafting Ambiguities. The Mortgagor
acknowledges that it was represented by counsel in connection with this
Mortgage, that it and its counsel reviewed and participated in the preparation
and negotiation of this Mortgage and that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party or the Mortgagee
shall not be employed in the interpretation of this Mortgage.
ARTICLE 2
Certain Representations, Warranties and Covenants
Section 2.1. Title, Authority and Effectiveness. (a The Mortgagor
represents and warrants that (i) the Mortgagor has good and marketable title to
the fee simple interest in the Land and the Improvements, free and clear of all
Liens other than the Permitted Liens and defects in title that could not
reasonably be expected to result in a Material Adverse Effect; (ii) the
Mortgagor is the owner of, or has a valid leasehold interest in, the Equipment
and all other items constituting the Mortgaged Property, in each case free and
clear of all Liens other than the Permitted Liens and defects in title that
could not reasonably be expected to result in a Material Adverse Effect; (iii to
the knowledge of the appropriate property management personnel of the Mortgagor,
as of the date hereof, neither the Mortgaged Property nor any interest therein
is subject to any right of first refusal, option or other contractual right to
purchase such Mortgaged Property or interest therein except as permitted under
the Credit Agreement; and (iv) this Mortgage constitutes a valid, binding and
enforceable agreement of the Mortgagor, enforceable in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or moratorium or other
16
similar laws relating to the enforcement of creditors' rights generally and by
general equitable principles, regardless of whether considered in a proceeding
in equity or at law.
(b) The Mortgagor shall for as long as the Secured Obligations remain
outstanding and except as otherwise permitted by the Credit Agreement, preserve,
protect, warrant and defend (i) its estate, right, title and interest in and to
the Mortgaged Property, (ii) the validity, enforceability and priority of the
Lien of this Mortgage on the Mortgaged Property, and (iii) the right, title and
interest of the Mortgagee and any purchaser at any sale of the Mortgaged
Property hereunder or relating hereto, in each case, against all other Liens,
subject only to the Permitted Liens.
(c) The Mortgagor, at its sole cost and expense, shall (i) upon the
request of the Mortgagee, promptly correct any defect or error which may be
discovered in this Mortgage or any financing statement or other document
relating hereto; and (ii) promptly execute, acknowledge, deliver, record and
re-record, register and re-register, and file and re-file this Mortgage and any
financing statements or other documents which the Mortgagee may require from
time to time (all in form and substance reasonably satisfactory to the
Mortgagee) in order (A0 to effectuate, complete, perfect, continue or preserve
the Lien of this Mortgage as a first Lien on the Mortgaged Property, whether now
owned or hereafter acquired, subject only to the Permitted Liens, or (B) to
effectuate, complete, perfect, continue or preserve any right, power or
privilege granted or intended to be granted to the Mortgagee hereunder or
otherwise accomplish the purposes of this Mortgage. To the fullest extent
permitted by Applicable Law, the Mortgagor hereby authorizes the Mortgagee to
execute and file financing statements or continuation statements without the
Mortgagor's signature appearing thereon. The Mortgagor shall pay on demand the
costs of, or incidental to, any recording or filing of any financing or
continuation statement, or amendment thereto, concerning the Mortgaged Property.
(d) Upon the recording of this Mortgage in the appropriate county
recording offices, the Lien of this Mortgage and the Security Interest in the
Mortgaged Property constituting real property and fixtures granted hereby shall
be a perfected first Lien on and Security Interest in such Mortgaged Property
prior to all Liens on and security interests in such Property other than the
Permitted Liens and defects in title that could not reasonably be expected to
result in a Material Adverse Effect.
(e) Nothing herein shall be construed to subordinate the Lien of this
Mortgage to any Permitted Lien to which the Lien of this Mortgage is not
otherwise subordinate.
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Section 2.02. Secured Obligations. The Mortgagor shall duly and
punctually pay, perform and observe the Secured Obligations at the time and
place and in the manner specified in the Credit Agreement and the other Loan
Documents.
Section 2.03. Impositions. Except as may be otherwise permitted under
the Credit Agreement, the Mortgagor shall (i) duly and punctually pay all
Impositions that if not paid, could result in a Material Adverse Effect, other
than Impositions that are being contested in accordance with the Credit
Agreement; (ii) not make any deduction from or claim any credit on any Secured
Obligation by reason of any Imposition and, to the extent permitted under Legal
Requirements, hereby irrevocably waives any right to do so; and (iii) upon
request, promptly deliver to the Mortgagee such information and documents with
respect to the matters referred to in this Section as the Mortgagee shall
reasonably request.
Section 2.04. Insurance Requirements. The Mortgagor represents and
warrants that (i) as of the date hereof, the Property and the use and operation
thereof comply in all material respects with all Insurance Requirements; (ii) as
of the date hereof, there is no material default under any Insurance
Requirement; and (iii the execution, delivery and performance of this Mortgage
will not contravene in any material respect any provision of or constitute a
material default under any Insurance Requirement.
Section 2.05. Care of the Property. The Mortgagor shall (i) operate and
maintain the Property, or use commercially reasonable efforts to cause the same
to be operated and maintained, in good working order and condition in accordance
with past practice, ordinary wear and tear excepted, except where failure to do
so could not reasonably be expected to have a Material Adverse Effect; (ii)
promptly make, or cause to be made, all Restorations of and to the Property
required by the Credit Agreement and all other Restorations of and to the
Property, whether interior or exterior, structural or nonstructural, foreseen or
unforeseen, which may be necessary or appropriate to keep the Property in good
order, repair and condition in accordance with past practice, which Restoration
shall be equal in quality to or better than the Property as of the date hereof
except where failures to do so could not reasonably be expected to have a
Material Adverse Effect; and (iii upon request, promptly deliver to the
Mortgagee such information and documents with respect to the matters referred to
in this Section as the Mortgagee shall reasonably request.
Section 2.06. Liens. The Mortgagor shall not create or permit to be
created or to remain, and shall immediately discharge or cause to be discharged,
any Lien on the Mortgaged Property or any interest therein, in each case (i)
18
whether voluntarily or involuntarily created, (ii) whether directly or
indirectly a Lien thereon and (iii) whether or not subordinated hereto, except,
in each case, for Permitted Liens. The provisions of this Section shall apply to
each and every Lien (other than Permitted Liens on the Mortgaged Property or any
interest therein, regardless of whether or not a consent to, or waiver of a
right to consent to, any other Lien thereon has been previously obtained in
accordance with the terms of the Loan Documents. Nothing herein shall obligate
the Mortgagor to remove any inchoate statutory Lien in respect of obligations
not yet due and payable.
Section 2.07. Transfer. The Mortgagor shall not Transfer, or suffer any
Transfer of, the Mortgaged Property or any part thereof or interest therein,
except as permitted or contemplated by Section 6.05 of the Credit Agreement or
any other Loan Document. The provisions of this Section shall apply to each and
every Transfer of the Mortgaged Property or any interest therein, regardless of
whether or not a consent to, or waiver of a right to consent to, any other
Transfer thereof has been previously obtained in accordance with the provisions
of the Loan Documents.
Section 2.08. Certain Amounts. If the Mortgagee exercises any of its
rights or remedies under this Mortgage, or if any actions or proceedings
(including any bankruptcy, insolvency or reorganization proceedings) are
commenced in which the Mortgagee is made a party and is obliged to defend or
uphold or enforce this Mortgage or the rights of the Mortgagee hereunder or the
terms of any Lease (and at such time an Event of Default shall have occurred and
is continuing), or if a condemnation proceeding is instituted affecting the
Mortgaged Property (and at such time an Event of Default shall have occurred and
is continuing), the Mortgagor will pay all reasonable sums, including reasonable
attorneys' fees and disbursements, incurred by the Mortgagee related to the
exercise of any remedy or right of the Mortgagee pursuant hereto and the
reasonable expenses of any such action or proceeding together with all statutory
or other costs, disbursements and allowances, interest thereon from the date of
demand for payment thereof at the Post-Default Rate, and such sums and the
interest thereon shall, to the extent permissible by law, be a Lien on the
Mortgaged Property prior to any right, title to, interest in or claim upon the
Mortgaged Property attaching or accruing subsequent to the recording of this
Mortgage and shall be secured by this Mortgage to the extent permitted by law.
Any payment of amounts due under this Mortgage not made on or before the due
date for such payments (including any applicable notice and grace period) shall
accrue interest daily without notice from the due date until paid at the
Post-Default Rate, and such interest at the Post-Default Rate shall be
immediately due upon demand by the Mortgagee.
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ARTICLE 3
Insurance, Casualty and Condemnation
Section 3.01. Insurance. (a) The Mortgagor shall maintain in full force
and effect Insurance Policies with respect to the Property as required by
Section 5.07 of the Credit Agreement.
(b) If at any time the area in which any Improvement is located is
designated a "flood hazard area" in any Flood Insurance Rate Map published by
the Federal Emergency Management Agency (or any successor agency), the Mortgagor
shall obtain flood insurance in such total amount as the Mortgagee may from time
to time reasonably require, and otherwise comply with the National Flood
Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as
amended from time to time. As of the date hereof, the Mortgagee acknowledges
that the Improvements are not located in a "flood hazard area."
Section 3.02. Casualty. The Mortgagor represents and warrants that, as
of the date hereof, there is no material Casualty affecting the Property.
Section 3.03. Insurance Proceeds. Any Insurance Proceeds received by
the Mortgagor shall be collected and applied in accordance with Section
2.10(b)(iii) of the Credit Agreement and Section 14 of the Security Agreement.
Section 3.04. Condemnation. The Mortgagor represents and warrants that,
as of the date hereof, (i) it has not received any written notice of any
Condemnation affecting the Property, (ii) to the knowledge of the appropriate
property management personnel of the Mortgagor, there are no negotiations or
proceedings which might result in such a Condemnation, and (iii) to the
knowledge of the appropriate property management personnel of the Mortgagor, no
such Condemnation is proposed or threatened.
Section 3.05. Condemnation Awards. Any Award received by the Mortgagor
shall be collected and applied in accordance with Section 2.10(b)(iii) of the
Credit Agreement and Section 14 of the Security Agreement.
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ARTICLE 4
Certain Secured Obligations
Section 4.01. Maximum Amount of Indebtedness. The maximum aggregate
principal amount of indebtedness that is, or under any contingency may be,
secured by this Mortgage (including a Borrower's obligation to reimburse
advances made by any Lender following the occurrence and during the continuance
of an Event of Default), either at execution or at any time thereafter, shall
not exceed the Secured Loan Amount, plus, to the extent permissible under
Applicable Law, amounts that Mortgagee expends after an Event of Default under
this Mortgage to the extent that any such amounts shall constitute payment of
(i) taxes, charges or assessments that may be imposed by law upon any Mortgaged
Property; (ii) premiums on insurance policies covering any Mortgaged Property;
(iii expenses incurred in upholding the Lien of this Mortgage, including the
expenses of any litigation to prosecute or defend the rights and Lien created by
this Mortgage; or (iv) any amount, cost or charge to which Mortgagee becomes
subrogated, upon payment, whether under recognized principles of law or equity,
or under express statutory authority; then, and in each such event, such amounts
or costs, together with interest thereon, shall be added to the indebtedness
secured hereby and shall be secured by this Mortgage.
Section 4.02. Treatment of Borrowing and Repayments. Pursuant to the
Credit Agreement, the amount of the Secured Obligations may increase and
decrease from time to time as Lenders advance, Borrowers repay, and Lenders
readvance sums on account of the Secured Obligations, all as more fully
described in the Credit Agreement; provided that, as more fully described in the
Credit Agreement, the Term Loans under the Credit Agreement may not be
reborrowed after they are repaid. For purposes of this Mortgage, so long as the
unpaid balance of the Secured Obligations equal or exceed the Secured Loan
Amount, the amount of the Secured Obligations secured by this Mortgage shall at
all times equal only the Secured Loan Amount as more fully described in Section
4.01. Such Secured Loan Amount represents only a portion of the first sums
advanced by Lenders with respect to the Secured Obligations.
Section 4.03. Reduction of Secured Loan Amount. The Secured Loan Amount
shall be reduced only by the last and final sums that Borrowers repay with
respect to the Secured Obligations and shall not be reduced by any intervening
repayments of the Secured Obligations by Borrowers. As of the Effective Date,
the total amount of the Secured Obligations exceeds the Secured Loan Amount, so
that the Secured Loan Amount represents only a portion of the Secured
Obligations actually outstanding.
21
Section 4.04. Application of Payments and Repayments. Notwithstanding
anything herein or in any Domestic Security Document to the contrary, so long as
the balance of the Secured Obligations exceeds the Secured Loan Amount, any
payments and repayments of any Secured Obligation by any Borrower shall not be
deemed to be applied against, or to reduce, the portion of the Secured
Obligations secured by this Mortgage, as more fully described in Section 4.01.
Such payments shall instead be deemed to reduce only such portions of the
Secured Obligations as are secured by mortgages encumbering real property
located outside the State of New York, which mortgages secure the entire Secured
Obligations (except to the extent, if any, that specific mortgages in such
states contain specific limitations on the amount secured).
Section 4.05. Limitation on Prepayment; Effect of Excessive Prepayment.
In the event the aggregate unpaid balance of the Secured Obligations is reduced
(as provided in Sections 4.03 and 4.04) below the Secured Loan Amount this
Mortgage shall not thereafter secure any further advances or readvances of
Secured Obligations thereafter made pursuant to the Credit Agreement unless and
until an additional instrument which evidences such further advances or
readvances, if any, is recorded in the Office of the County Clerk of the county
or counties of New York in which the Mortgaged Property is located and any
mortgage recording taxes payable with respect to such instrument and/or such
further advances or readvances are paid. Notwithstanding anything herein to the
contrary, in the event the aggregate unpaid balance of the Secured Obligations
is reduced (as provided in Sections 4.03 and 4.04) below the Secured Loan Amount
and a Borrower thereafter requests further advances or readvances, the Mortgagor
shall execute, acknowledge and record such an instrument in form and substance
reasonably satisfactory to the Mortgagee and pay any additional mortgage
recording taxes attributable thereto and/or to such further advances or
readvances.
Section 4.06. No Limitation on Certain Rights. Nothing in the foregoing
paragraphs relating to the Secured Loan Amount and treatment of payments,
repayments, advances and readvances shall be deemed or construed to: (i) prevent
Borrowers from fully prepaying the Loans in accordance with the Credit
Agreement; (ii) prevent Borrowers from obtaining the release of the Mortgaged
Property to the extent otherwise provided for in the Loan Documents; or (iii)
limit or impair any Lender's remedies, including any Lender's right to require
repayment of the Loans (as more fully described in the Credit Agreement) upon an
Event of Default.
Section 4.07. Right to Perform Obligations. If an Event of Default
arises as a result of the failure by Mortgagor to pay or perform any of its
obligations under Section 2.03 or if an Actionable Event of Default shall have
occurred and is continuing or upon an acceleration of the Loans in accordance
with the terms of
22
the Credit Agreement, the Mortgagee shall have the right, (i) with simultaneous
notice if such payment or performance is necessary in the reasonable opinion of
the Mortgagee to preserve the Mortgagee's rights under this Mortgage or with
respect to the Mortgaged Property, or (ii) after notice given reasonably in
advance to allow the Mortgagor an opportunity to cure, to pay or perform such
obligation, provided the Mortgagor is not contesting payment or performance in
accordance with the Credit Agreement, and further provided that no such payment
or performance shall be construed to be a cure of any Default or waiver of any
Default or Secured Obligation. If pursuant to this Section 4.07, the Mortgagee
shall make any payment on behalf of the Mortgagor or shall incur hereunder any
expense for which the Mortgagee is entitled to reimbursement pursuant to the
provisions of the Loan Documents, such Secured Obligation shall be repayable on
demand and shall bear interest from the date incurred at the Post-Default Rate.
Such interest, and any other interest on the Secured Obligations payable at the
Post-Default Rate pursuant to the terms of the Loan Documents, shall accrue
through the date paid notwithstanding any intervening judgment of foreclosure or
sale. All such interest shall be part of the Secured Obligations and shall be
secured by this Mortgage.
Section 4.08. Changes in the Laws Regarding Taxation. If after the date
hereof there is enacted any Applicable Law deducting from the value of the
Property for the purpose of taxation the Lien of any Security Document or
changing in any way the Applicable Law for the taxation of mortgages, deeds of
trust or other Liens or obligations secured thereby, or the manner of collection
of such taxes, so as to adversely affect this Mortgage, the CA Secured
Obligations, or any Secured Party holding CA Secured Obligations, upon demand by
the Mortgagee or any other affected Secured Party holding CA Secured Obligations
and to the fullest extent permitted under Applicable Law, the Mortgagor shall
pay all taxes, assessments or other charges resulting therefrom or shall
reimburse such Secured Party for all such taxes, assessments or other charges
which such Secured Party is obligated to pay as a result thereof.
Section 4.09. Indemnification. The Mortgagor shall indemnify and hold
harmless each Indemnitee (as defined in the Credit Agreement) from and against
all losses, claims, damages, liabilities and related expenses, including
reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee, arising out of, in connection
with, or as a result of, (a) the Mortgagee's exercise of any of its rights and
remedies hereunder; (b) any accident, injury to or death of persons or loss of
or damage to property occurring in, on or about the Mortgaged Property or any
part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent
parking areas, street or ways (other than to the extent the same may occur from
and after ownership and possession of the Mortgaged Property is transferred to a
purchaser at a foreclosure
23
sale or otherwise); and (c) any other conduct or misconduct of the Mortgagor,
any lessee or other occupant of any of the Mortgaged Property, or any of their
respective agents, contractors, subcontractors, servants, employees, licensees
or invitees (other than to the extent the same may occur from and after
ownership and possession of the Mortgaged Property is transferred to a purchaser
at a foreclosure sale or otherwise); provided, however, such indemnity shall not
be available to any Indemnitee to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction in a final and unappealable judgment to have resulted from such
Indemnitee's gross negligence or willful misconduct. Any amount payable under
this Section will be payable on demand, be deemed a CA Secured Obligation and
will bear interest pursuant to Section 4.07. The obligations of the Mortgagor
under this Section shall survive the release of this Mortgage.
ARTICLE 5
Defaults, Remedies and Rights
Section 5.01. Events of Default. (a) Any Event of Default under the
Credit Agreement shall constitute an Event of Default hereunder.
(b) All notice and cure periods provided in the Credit Agreement shall
run concurrently with any notice or cure periods provided under Applicable Law.
Section 5.02. Remedies. (a) Upon an acceleration of the Loans in
accordance with the terms of the Credit Agreement, the Mortgagee shall have the
right and power to exercise any of the following remedies and rights, subject to
mandatory provisions of Applicable Law, to wit:
(i) to institute a proceeding or proceedings, by advertisement
judicial process or otherwise as provided under Applicable Law, for the
complete or partial foreclosure of this Mortgage or the complete or
partial sale of the Mortgaged Property under the power of sale
hereunder or under any Applicable Law; or
(ii) to sell the Mortgaged Property, and all estate, right,
title, interest, claim and demand of the Mortgagor therein and thereto,
and all rights of redemption thereof, at one or more sales, as an
entirety or in parcels, with such elements of real or personal
property, at such time and place and upon such terms as the Mortgagee
may deem expedient or as may be required under Applicable Law, and in
the event of a sale hereunder or under any Applicable Law of less than
all of the Mortgaged Property,
24
this Mortgage shall continue as a Lien on the remaining Mortgaged
Property; or
(iii) to institute a suit, action or proceeding for the specific
performance of any of the provisions of this Mortgage; or
(iv) to be entitled to the appointment of a receiver,
supervisor, trustee, liquidator, conservator or other custodian (a
"Receiver") of the Mortgaged Property, without notice to Mortgagor, to
the fullest extent permitted by law, as a matter of right and without
regard to, or the necessity to disprove, the adequacy of the security
for the Secured Obligations or the solvency of the Mortgagor or any
other Borrower, and the Mortgagor hereby, to the fullest extent
permitted by Applicable Law, irrevocably waives such necessity and
consents to such appointment, without notice, said appointee to be
vested with the fullest powers permitted under Applicable Law,
including to the fullest extent permitted under Applicable Law those
under Section 5.02(a)(v); or
(v) to enter upon the Property, by the Mortgagee or a Receiver
(whichever is the Person exercising the rights under this clause), and,
to the extent permitted under Applicable Law, exclude the Mortgagor and
its managers, employees, contractors, agents and other representatives
therefrom in accordance with Applicable Law, without liability for
trespass, damages or otherwise, and take possession of all other
Mortgaged Property and all books, records and accounts relating
thereto, and upon demand the Mortgagor shall surrender possession of
the Property, the other Mortgaged Property and such books, records and
accounts to the Person exercising the rights under this clause; and
having and holding the same, the Person exercising the rights under
this clause may use, operate, manage, preserve, control and otherwise
deal therewith and conduct the business thereof, either personally or
by its managers, employees, contractors, agents or other
representatives, without interference from the Mortgagor or its
managers, employees, contractors, agents and other representatives;
and, upon each such entry and from time to time thereafter, at the
expense of the Mortgagor and the Mortgaged Property, without
interference by the Mortgagor or its managers, employees, contractors,
agents and other representatives, the Person exercising the rights
under this clause may, as such Person deems expedient, (A) insure or
reinsure the Property, (B) make all necessary or proper repairs,
renewals, replacements, alterations, additions, Restorations,
betterments and improvements to the Property and (C) in such Person's
own name or, at the option of such Person, in the Mortgagor's name,
exercise all rights, powers and privileges of the Mortgagor with
respect to the Mortgaged
25
Property, including the right to enter into Leases with respect to the
Property, including Leases extending beyond the time of possession by
the Person exercising the rights under this clause; and the Person
exercising the rights under this clause shall not be liable to account
for any action taken hereunder, other than for Rents actually received
by such Person, and shall not be liable for any loss sustained by the
Mortgagor resulting from any failure to let the Property or from any
other act or omission of such Person, except to the extent such loss
is caused by such Person's own willful misconduct or gross negligence;
or
(vi) with or, to the fullest extent permitted by Applicable Law
without entry upon the Property, in the name of the Mortgagee or a
Receiver (as required by law and whichever is the Person exercising the
rights under this clause) or, at such Person's option, in the name of
the Mortgagor, to collect, receive, xxx for and recover all Rents and
proceeds of or derived from the Mortgaged Property, and after deducting
therefrom all costs, expenses and liabilities of every character
incurred by the Person exercising the rights under this clause in
collecting the same and in using, operating, managing, preserving and
controlling the Mortgaged Property and otherwise in exercising the
rights under Section 5.02(a)(v) or any other rights hereunder,
including all amounts necessary to pay Impositions, Rents, Insurance
Premiums and other costs, expenses and liabilities relating to the
Property, as well as compensation for the services of such Person and
its managers, employees, contractors, agents or other representatives,
to apply the remainder as provided in Section 5.06; or
(vii) to take any action with respect to any Mortgaged Property
permitted under the UCC in accordance with the terms and conditions of
the Domestic Security Agreement; or
(viii) to take any other action, or pursue any other remedy or
right, as the Mortgagee may have under Applicable Law, and the
Mortgagor does hereby grant the same to the Mortgagee; or
(ix) to exercise any rights and remedies pursuant to Article 14
of RPAPL entitled "Foreclosure of Mortgage by Power of Sale"; or
(x) to declare all sums secured hereby to be immediately due
and payable, without presentment, demand, notice of any kind, protest
or notice of protest, all of which are expressly waived.
(b) To the fullest extent permitted by Applicable Law,
26
(i) each remedy or right hereunder shall be in addition to, and
not exclusive or in limitation of, any other remedy or right hereunder,
under any other Loan Document or under Applicable Law;
(ii) every remedy or right hereunder, under any other Loan
Document or under Applicable Law may be exercised concurrently or
independently and whenever and as often as deemed appropriate by the
Mortgagee;
(iii) no failure to exercise or delay in exercising any remedy or
right hereunder, under any other Loan Document or under Applicable Law
shall be construed as a waiver of any Default hereunder or under any
other Loan Document;
(iv) no waiver of, failure to exercise or delay in exercising
any remedy or right hereunder, under any other Loan Document or under
Applicable Law upon any Default hereunder or under any other Loan
Document shall be construed as a waiver of, or otherwise limit the
exercise of, such remedy or right upon any other or subsequent Default
hereunder or under any other Loan Document;
(v) no single or partial exercise of any remedy or right
hereunder, under any other Loan Document or under Applicable Law upon
any Default hereunder or under any other Loan Document shall preclude
or otherwise limit the exercise of any other remedy or right hereunder,
under any other Loan Document or under Applicable Law upon such Default
or upon any other or subsequent Default hereunder or under any other
Loan Document;
(vi) the acceptance by the Mortgagee or any other Secured Party
of any payment less than the amount of the Secured Obligation in
question shall be deemed to be an acceptance on account only and shall
not be construed as a waiver of any Default hereunder or under any
other Loan Document with respect thereto; and
(vii) the acceptance by the Mortgagee or any other Secured Party
of any payment of, or on account of, any Secured Obligation shall not
be deemed to be a waiver of any Default hereunder or under any other
Loan Document with respect to any other Secured Obligation.
(c) If the Mortgagee has proceeded to enforce any remedy or right
hereunder or with respect hereto by foreclosure, sale, entry or otherwise, it
may compromise, discontinue or abandon such proceeding for any reason without
27
notice to the Mortgagor or any other Person (other than other Secured Parties as
may be required by the other Loan Documents or the ESOP Guarantee Agreements or
the XCFI Indentures), and, in the event that any such proceeding shall be
discontinued, abandoned or determined adversely for any reason, the Mortgagor
and the Mortgagee shall retain and be restored to their former positions and
rights hereunder with respect to the Mortgaged Property, subject to the Lien
hereof except to the extent any such adverse determination specifically provides
to the contrary.
(d) For the purpose of carrying out any provisions of Section 2.01(c),
4.07, 5.02(a)(v), 5.02(a)(vi), 5.05 or 5.07 or any other provision hereunder
authorizing the Mortgagee or any other Person to perform any action on behalf of
the Mortgagor upon an Actionable Event of Default or upon an acceleration of the
Loans in accordance with the terms of the Credit Agreement, the Mortgagor hereby
irrevocably appoints the Mortgagee or a Receiver appointed pursuant to Section
5.02(a)(vi) or such other Person (as the case may be as the Person appointed
under this subsection) as the attorney-in-fact of the Mortgagor (with a power to
substitute any other Person in its place as such attorney-in-fact) to act in the
name of the Mortgagor or, at the option of the Person appointed to act under
this subsection, in such Person's own name, to take the action authorized under
Section 2.01(c), 4.07, 5.02(a)(v), 5.02(a)(vi), 5.05 or 5.07 or such other
provision, and to execute, acknowledge and deliver any document in connection
therewith or to take any other action incidental thereto as the Person appointed
to act under this subsection shall deem appropriate in its discretion; and the
Mortgagor hereby irrevocably authorizes and directs any other Person to rely and
act on behalf of the foregoing appointment and a certificate of the Person
appointed to act under this subsection that such Person is authorized to act
under this subsection.
Section 5.03. Waivers by the Mortgagor. To the fullest extent permitted
under Applicable Law, the Mortgagor shall not assert, and hereby irrevocably
waives, any right or defense the Mortgagor may have under any statute or rule of
law or equity now or hereafter in effect relating to (i) appraisement,
valuation, homestead exemption, extension, moratorium, stay, statute of
limitations, redemption, marshalling of the Mortgaged Property or the other
assets of the Mortgagor, sale of the Mortgaged Property in any order or notice
of deficiency or intention to accelerate any Secured Obligation; (ii) impairment
of any right of subrogation or reimbursement; (iii) any requirement that at any
time any action must be taken against any other Person, any portion of the
Mortgaged Property or any other asset of the Mortgagor or any other Person; (iv)
any provision barring or limiting the right of the Mortgagee to sell any
Mortgaged Property after any other sale of any other Mortgaged Property or any
other action against the Mortgagor or any other Person; (v) any provision
barring or limiting the recovery by the Mortgagee of a deficiency after any sale
of the Mortgaged Property; (vi) any other
28
provision of Applicable Law which might defeat, limit or adversely affect any
right or remedy of the Mortgagee or the holders of the Secured Obligations under
or with respect to this Mortgage or any other Security Document as it relates to
any Mortgaged Property; or (vii) the right of the Mortgagee to foreclose this
Mortgage in its own name on behalf of all of the Secured Parties by judicial
action as the real party in interest without the necessity of joining any other
Secured Party.
Section 5.04. Jurisdiction and Process. (a) To the extent permitted
under Applicable Law, in any suit, action or proceeding arising out of or
relating to this Mortgage or any other Security Document as it relates to any
Mortgaged Property, the Mortgagor irrevocably consents to (i) the jurisdiction
of any state or federal court sitting in the State in which the Property is
located and irrevocably waives any defense or objection which it may now or
hereafter have to the jurisdiction of such court or the venue of such court for
or the convenience of such court as the forum for any such suit, action or
proceeding, and (ii) the service of (A) any process in any such suit, action or
proceeding, or (B) any notice relating to any sale, or the exercise of any other
remedy by the Mortgagee hereunder by sending a copy of such process or notice by
prepaid overnight courier or United States registered or certified mail, postage
prepaid, return receipt requested to the Mortgagor at its address specified in
or pursuant to Section 7.03, such service to be effective when received at the
address specified or when delivery at such address is refused.
(b) Nothing in this Section shall affect the right of the Mortgagee to
bring any suit, action or proceeding arising out of or relating to this Mortgage
or any other Security Document in any court having jurisdiction under the
provisions of any other Security Document or Applicable Law or to serve any
process, notice of sale or other notice in any manner permitted by any other
Security Document or Applicable Law.
Section 5.05. Sales. Subject to Section 4.01 and 5.02(a) and except as
otherwise provided herein, to the fullest extent permitted under Applicable Law,
at the election of the Mortgagee, the following provisions shall apply to any
sale of the Mortgaged Property hereunder, whether made pursuant to the power of
sale hereunder, any judicial proceeding or any judgment or decree of foreclosure
or sale or otherwise:
(a) The Mortgagee or the court officer (whichever is the Person
conducting any sale) may conduct any number of sales from time to time. The
power of sale hereunder shall not be exhausted by any sale as to any part or
parcel of the Mortgaged Property which is not sold, unless and until the Secured
Obligations shall have been paid in full, and shall not be exhausted or impaired
by any sale which is not completed or is defective. Any sale may be as a whole
or in
29
part or parcels and as provided in Section 5.03, the Mortgagor has thereby
waived its right to direct the order in which the Mortgaged Property or any part
or parcel thereof is sold.
(b) Any sale may be postponed or adjourned by public announcement at
the time and place appointed for such sale or for such postponed or adjourned
sale without further notice.
(c) After each sale, the Person conducting such sale shall execute and
deliver to the purchaser or purchasers at such sale a good and sufficient
instrument or instruments granting, conveying, assigning and transferring all
right, title and interest of the Mortgagor in and to the Mortgaged Property sold
and shall receive the proceeds of such sale and apply the same as provided in
Section 5.06. The Mortgagor hereby irrevocably appoints the Person conducting
such sale as the attorney-in-fact of the Mortgagor (with full power to
substitute any other Person in its place as such attorney-in-fact) to act in the
name of the Mortgagor or, at the option of the Person conducting such sale, in
such Person's own name, to make without warranty by such Person any conveyance,
assignment, transfer or delivery of the Mortgaged Property sold, and to execute,
acknowledge and deliver any instrument of conveyance, assignment, transfer or
delivery or other document in connection therewith or to take any other action
incidental thereto, as the Person conducting such sale shall deem appropriate in
its discretion; and the Mortgagor hereby irrevocably authorizes and directs any
other Person to rely and act upon the foregoing appointment and a certificate of
the Person conducting such sale that such Person is authorized to act hereunder.
Nevertheless, upon the request of such attorney-in-fact the Mortgagor shall
promptly execute, acknowledge and deliver any documentation which such
attorney-in-fact may reasonably require for the purpose of ratifying, confirming
or effectuating the powers granted hereby or any such conveyance, assignment,
transfer or delivery by such attorney-in-fact.
(d) Any statement of fact or other recital made in any instrument
referred to in Section 5.05(c) given by the Person conducting any sale as to the
nonpayment of any Secured Obligation, the occurrence of any Event of Default,
the amount of the Secured Obligations due and payable, the request to the
Mortgagee to sell, the notice of the time, place and terms of sale and of the
Mortgaged Property to be sold having been duly given, the refusal, failure or
inability of the Mortgagee to act, the appointment of any substitute or
successor agent, any other act or thing having been duly done by the Mortgagor,
the Mortgagee or any other such Person, shall be taken as conclusive and binding
against all other Persons as evidence of the truth of the facts so stated or
recited. The Person conducting any sale may appoint or delegate any other Person
as agent to perform any act necessary or incident to such sale, including the
posting of
30
notices and the conduct of such sale, but in the name and on behalf of the
Person conducting such sale.
(e) The receipt by the Person conducting any sale of the purchase money
paid at such sale shall be sufficient discharge therefor to any purchaser of any
Mortgaged Property sold, and no such purchaser, or its representatives, grantees
or assigns, after paying such purchase price and receiving such receipt, shall
be bound to see to the application of such purchase price or any part thereof
upon or for any trust or purpose of this Mortgage or, in any manner whatsoever,
be answerable for any loss, misapplication or nonapplication of any such
purchase money or be bound to inquire as to the authorization, necessity,
expediency or regularity of such sale.
(f) Subject to mandatory provisions of Applicable Law, any sale shall
operate to divest all of the estate, right, title, interest, claim and demand
whatsoever, whether at law or in equity, of the Mortgagor in and to the
Mortgaged Property sold, and shall be a perpetual bar both at law and in equity
against the Mortgagor and any and all Persons claiming such Mortgaged Property
or any interest therein by, through or under the Mortgagor.
(g) At any sale, the Mortgagee may bid for and acquire the Mortgaged
Property sold and, in lieu of paying cash therefor, may make settlement for the
purchase price by causing the Secured Parties to credit against the Secured
Obligations, including the expenses of the sale and the cost of any enforcement
proceeding hereunder, the amount of the bid made therefor to the extent
necessary to satisfy such bid.
(h) If the Mortgagor or any Person claiming by, through or under the
Mortgagor shall transfer or fail to surrender possession of the Mortgaged
Property, after the exercise by the Mortgagee of the Mortgagee's remedies under
Section 5.02(a)(v) or after any sale of the Mortgaged Property pursuant hereto,
then the Mortgagor or such Person shall be deemed a tenant at sufferance of the
purchaser at such sale, subject to eviction by means of summary process for
possession of land, or subject to any other right or remedy available hereunder
or under Applicable Law.
(i) Upon any sale, it shall not be necessary for the Person conducting
such sale to have any Mortgaged Property being sold present or constructively in
its possession.
(j) If a sale hereunder shall be commenced by the Mortgagee, the
Mortgagee may at any time before the sale abandon the sale, and may institute
suit for the collection of the Secured Obligations or for the foreclosure of
this
31
Mortgage; or if the Mortgagee should institute a suit for collection of the
Secured Obligations or the foreclosure of this Mortgage, the Mortgagee may at
any time before the entry of final judgment in said suit dismiss the same and
sell the Mortgaged Property in accordance with the provisions of this Mortgage.
Section 5.6. Proceeds. Subject to Section 4.01 and except as otherwise
provided herein or required under Applicable Law, the proceeds of any sale of,
or other realization upon, the Mortgaged Property hereunder, whether made
pursuant to the power of sale hereunder, any judicial proceeding or any judgment
or decree of foreclosure or sale or otherwise shall be applied and paid in
accordance with Section 14 of the Security Agreement.
Section 5.7. Assignment of Leases. (a) Subject to paragraph 5.07(d)
below, the assignments of the Leases and the Rents under Granting Clauses VI and
VII are and shall be present, absolute and irrevocable assignments by the
Mortgagor to the Mortgagee and, subject to the license to the Mortgagor under
Section 5.07(b), the Mortgagee or a Receiver appointed pursuant to Section
5.02(a)(iv) (as the case may be as the Person exercising the rights under this
Section) shall have the absolute, immediate and continuing right to collect and
receive all Rents now or hereafter, including during any period of redemption,
accruing with respect to the Property. At the request of the Mortgagee or such
Receiver, the Mortgagor shall promptly execute, acknowledge, deliver, record,
register and file any additional general assignment of the Leases or specific
assignment of any Lease which the Mortgagee or such Receiver may reasonably
require from time to time (all in form and substance satisfactory to the
Mortgagee or such Receiver) to effectuate, complete, perfect, continue or
preserve the assignments of the Leases and the Rents under Granting Clauses VI
and VII. Neither the acceptance hereof nor the exercise of the rights and
remedies hereunder nor any other action on the part of the Mortgagee or any
Person exercising the rights of the Mortgagee hereunder shall be construed to be
an assumption by the Mortgagee or any such Person of, or to otherwise make the
Mortgagee or such Person liable or responsible for, any of the obligations of
the Mortgagor under or with respect to the Leases or for any Rent, Security
Deposit or other amount delivered to the Mortgagor, provided that the Mortgagee
or any such Person exercising the rights of the Mortgagee hereunder shall be
accountable as provided in Section 5.07(c) for any Rents, Security Deposits or
other amounts actually received by the Mortgagee or such Person, as the case may
be. Neither the acceptance hereof nor the exercise of the rights and remedies
hereunder nor any other action on the part of the Mortgagee or any Person
exercising the rights of the Mortgagee hereunder shall be construed to obligate
the Mortgagee or any such Person to take any action under or with respect to the
Leases or with respect to the Property, to incur any expense or perform or
discharge any duty or obligation under or with respect to the Leases or with
respect to the Property, to
32
appear in or defend any action or proceeding relating to the Leases or the
Property, to constitute the Mortgagee as a mortgagee in possession (unless the
assignee hereunder actually enters and takes possession of the Property), or to
be liable in any way for any injury or damage to person or property sustained by
any Person in or about the Property other than to the extent caused by the
willful misconduct or gross negligence of the Mortgagee or any Person exercising
the rights of the Mortgagee hereunder.
(b) Prior to the occurrence of an Actionable Event of Default or the
acceleration of the Loans in accordance with the terms of the Credit Agreement,
the Mortgagor shall have a license granted hereby to collect and receive all
Rents and apply the same subject to the provisions of the Loan Documents. This
license shall terminate, at the option of the Mortgagee, upon the occurrence and
during the continuance of an Actionable Event of Default or upon an acceleration
of the Loans in accordance with the terms of the Credit Agreement.
(c) If an Actionable Event of Default has occurred and is continuing or
upon an acceleration of the Loans in accordance with the terms of the Credit
Agreement, the Mortgagee or a Receiver appointed pursuant to Section 5.02(a)(iv)
(as the case may be as the Person exercising the rights under this Section)
shall have the right to terminate the license granted under Section 5.07(b) by
notice to the Mortgagor and to exercise the rights and remedies provided under
Sections 5.07(a), 5.02(a)(v), 5.02(a)(vi) or any Applicable Law. If an
Actionable Event of Default is continuing or upon an acceleration of the Loans
in accordance with the terms of the Credit Agreement, upon demand by the Person
exercising the rights under this Section, the Mortgagor shall promptly pay to
such Person all Security Deposits under the Leases and all Rents allocable to
any period after such Actionable Event of Default or acceleration of the Loans.
Subject to Sections 5.02(a)(v) and 5.02(a)(vi) and any applicable requirement of
law, any Rents received hereunder by such Receiver shall be promptly paid to the
Mortgagee, and any Rents received hereunder by the Mortgagee shall be deposited
in the applicable Collateral Account, to be held, applied and disbursed as
provided in the Security Agreement, provided that, subject to Sections
5.02(a)(v) and 5.02(a)(vi) and any applicable requirement of law, any Security
Deposits actually received by such Receiver shall be promptly paid to the
Mortgagee, and any Security Deposits actually received by the Mortgagee shall be
held, applied and disbursed as provided in the applicable Leases and Applicable
Law.
(d) Nothing herein shall be construed to be an assumption by the Person
exercising the rights under this Section, or otherwise to make such Person
liable for the performance, of any of the obligations of the Mortgagor under the
Leases, provided that such Person shall be accountable as provided in Section
5.07(c) for any Rents or Security Deposits actually received by such Person.
33
Section 5.08. Dealing with the Mortgaged Property. Subject to Section 7.02,
the Mortgagee shall have the right to release any portion of the Mortgaged
Property to or at the request of the Mortgagor, for such consideration as the
Mortgagee may reasonably require without, as to the remainder of the Mortgaged
Property, in any way impairing or affecting the Lien or priority of this
Mortgage, or improving the position of any subordinate lienholder with respect
thereto, or the position of any guarantor, endorser, co-maker or other obligor
of the Secured Obligations, except to the extent that the Secured Obligations
shall have been reduced by any actual monetary consideration received for such
release and applied to the Secured Obligations, and may accept by assignment,
pledge or otherwise any other property in place thereof as the Mortgagee may
reasonably require without being accountable therefor to any other lienholder.
Section 5.09. Information and Right of Entry. (a) Upon reasonable request
by the Mortgagee, the Mortgagor shall deliver to the Mortgagee promptly after
such request or, if requested by the Mortgagee, on a continuing or periodic
basis, any information, certificates and documents with respect to the matters
referred to in this Mortgage as the Mortgagor shall reasonably request in order
to protect its rights under this Mortgage or with respect to the Mortgaged
Property.
(b) The Mortgagee and the representatives of the Mortgagee shall have the
right, (i) with simultaneous notice, if any payment or performance is necessary
in the reasonable opinion of the Mortgagee to preserve the Mortgagee's rights
under this Mortgage or with respect to the Mortgaged Property, or (ii) after
reasonable notice, in all other cases, to enter upon the Property at reasonable
times, and with reasonable frequency, to inspect the Mortgaged Property or,
subject to the provisions hereof, to exercise any right, power or remedy of the
Mortgagee hereunder, provided that any Person so entering the Property shall not
unreasonably interfere with the ordinary conduct of the Mortgagor's business,
and provided further that no such entry on the Property, for the purpose of
performing obligations under Section 4.07 or for any other purpose, shall be
construed to be (x) possession of the Property by such Person or to constitute
such Person as a mortgagee in possession, unless such Person exercises its right
to take possession of the Property under Section 5.02(a)(v), or (y) a cure of
any Default or waiver of any Default or Secured Obligation.
34
ARTICLE 6
Security Agreement and Fixture Filing
Section 6.01. Security Agreement. (a) To the extent that the Mortgaged
Property constitutes or includes personal property and equipment, including
goods or items of personal property or equipment which are or are to become
fixtures under Applicable Law, in each case to the extent the same constitutes
"Collateral" under the Security Agreement, the Mortgagor hereby grants a
security interest therein (and any Proceeds thereof) and this Mortgage shall
also be construed as a pledge and a security agreement under the UCC; the
Mortgagee shall be entitled with respect to such personal property and equipment
to all remedies available under the Security Agreement in the manner and to the
extent provided therein.
(b) Notwithstanding the foregoing, to the extent that the Mortgaged
Property includes personal property or equipment covered by provisions in the
Security Agreement or any other Security Document and such provisions are
inconsistent with this Article 6, the provisions of the Security Agreement or
such other Security Document shall govern with respect to such personal property
and equipment. Mortgagee shall have all rights with respect to the part of the
Mortgaged Property that constitutes Collateral under the Security Agreement and
is subject of a security interest afforded by the UCC.
Section 6.02. Fixture Filing. To the extent that the Mortgaged Property
includes goods or items of personal property which are or are to become fixtures
under Applicable Law, and to the extent permitted under Applicable Law, the
filing of this Mortgage in the real estate records of the county in which the
Mortgaged Property is located shall also operate from the time of filing as a
fixture filing with respect to such Mortgaged Property, and the following
information is applicable for the purpose of such fixture filing, to wit:
(a) Name and Address of the debtor:
Xerox Corporation
000 Xxxx Xxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxxxxxxxxx 00000
(b) Name and Address of the secured party:
Bank One, NA
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
35
(c) This document covers goods or items of personal property which are or
are to become fixtures upon the Property.
(d) The name of the record owner of the real estate on which such fixtures
are or are to be located is Xerox Corporation.
ARTICLE 7
Miscellaneous
Section 7.01. Concerning the Mortgagee. (a) The provisions of Article VIII
of the Credit Agreement shall inure to the benefit of the Mortgagee in respect
of this Mortgage (as if the Mortgagee was an Administrative Agent referred to
therein) and shall be binding upon the parties to the Credit Agreement. In
furtherance and not in derogation of the rights, privileges and immunities of
the Mortgagee therein set forth:
(i) The Mortgagee is authorized to take all such action as is
provided to be taken by it as Mortgagee hereunder and all other action
incidental thereto. As to any matters not expressly provided for herein
(including the timing and methods of realization upon the Mortgaged
Property) the Mortgagee shall act or refrain from acting in accordance with
written instructions from the Required Lenders or, in the absence of such
instructions, in accordance with its discretion.
(ii) The Mortgagee shall not be responsible for the existence,
genuineness or value of any of the Mortgaged Property or for the validity,
perfection, priority or enforceability of the Lien of this Mortgage on any
of the Mortgaged Property, whether impaired by operation of law or by
reason of any action or omission to act on its part hereunder. The
Mortgagee shall have no duty to ascertain or inquire as to the performance
or observance of any of the terms of this Mortgage by the Mortgagor.
(iii) For all purposes of the Domestic Security Documents, including
determining the amounts of the Secured Obligations and whether a Secured
Obligation is a Contingent CA Secured Obligation or not, the Mortgagee will
be entitled to rely on information from (i) its own records for information
as to the Lender and Agents, their Secured Obligations and actions taken by
them, (ii) any Secured Party for information as to its Secured Obligations
and actions taken by it, to the extent that the Mortgagee has not obtained
such information from the
36
foregoing sources, and (iii) Xerox, to the extent that the Mortgagee has
not obtained information from the foregoing sources.
(b) At any time or times, solely in order to comply with any Applicable
Law, the Mortgagee may appoint another bank or trust company or one or more
other Persons, either to act as co-agent or co-agents, jointly with the
Mortgagee, or to act as separate agent or agents on behalf of the Lenders with
such power and authority as may be necessary for the effectual operation of the
provisions hereof and may be specified in the instrument of appointment (which
may, in the discretion of the Mortgagee, include provisions for the protection
of such co-agent or separate agent similar to the provisions of this Section
7.01).
Section 7.02. Release of Mortgaged Property. (a) Each Security Interest
granted hereunder shall terminate, and all rights to the relevant Mortgaged
Property shall revert to the Mortgagor, if, as and to the extent permitted by
Sections 9.02 and 9.03 of the Credit Agreement, as the case may be.
(b) The Mortgagee may conclusively rely on any certificate delivered to it
by the Mortgagor stating that the release of the Mortgaged Property is in
accordance with and permitted by the terms of this Mortgage and the other Loan
Documents.
(c) Notwithstanding anything to the contrary herein, if at any time prior
to the termination of this Mortgage pursuant to this Section 7.02, the ESOP
Secured Obligations are paid in full, all rights hereunder of the holders of
ESOP Secured Obligations shall simultaneously terminate, and none of the Secured
Subsidiary Guarantors shall thereafter be an ESOP Restricted Secured Subsidiary
Guarantor.
(d) Notwithstanding anything to the contrary herein, if at any time prior
to the termination of this Mortgage pursuant to this Section 7.02, the XCFI
Secured Obligations are paid in full, all rights hereunder of the holders of
XCFI Secured Obligations shall simultaneously terminate.
(e) Upon certification by the Mortgagor that an easement, right-of-way,
restriction, reservation, permit, servitude or other similar encumbrance granted
or to be granted by the Mortgagor does not materially detract from the value of
or materially impair the use by the Mortgagor of the Mortgaged Property subject
to such encumbrance, the Mortgagee shall execute such documents as are
reasonably requested to subordinate this Mortgage to such encumbrance.
(f) Upon any termination of this Mortgage or release of Mortgaged Property
as described in this Section 7.02, the Mortgagee shall, within fifteen (15)
Business Days of written request therefor, at the expense of the Mortgagor,
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execute, acknowledge and deliver to the Mortgagor such documents, without
warranty, as the Mortgagor shall reasonably request to evidence the release and
reassignment of Mortgaged Property or termination of this Mortgage, as the case
may be.
Section 7.03. Notices. All notices, approvals, requests, demands and other
communications hereunder shall be given in accordance with Section 21 of the
Security Agreement. Any party may change its address, facsimile and/or e-mail
address as provided in the Security Agreement.
Section 7.04. Amendments in Writing. No provision of this Mortgage shall be
modified, waived or terminated, and no consent to any departure by the Mortgagor
from any provision of this Mortgage shall be effective, unless the same shall be
by an instrument in writing and signed by the Mortgagor and the Mortgagee in
accordance with the Credit Agreement.
Section 7.05. Severability. All rights, powers and remedies provided in
this Mortgage may be exercised only to the extent that the exercise thereof does
not violate Applicable Law, and all the provisions of this Mortgage are intended
to be subject to all mandatory provisions of Applicable Law and to be limited to
the extent necessary so that they will not render this Mortgage illegal,
invalid, unenforceable or not entitled to be recorded, registered or filed under
Applicable Law. If any provision of this Mortgage or the application thereof to
any Person or circumstance shall, to any extent, be illegal, invalid or
unenforceable, or cause this Mortgage not to be entitled to be recorded,
registered or filed, the remaining provisions of this Mortgage or the
application of such provision to other Persons or circumstances shall not be
affected thereby, and each provision of this Mortgage shall be valid and be
enforced to the fullest extent permitted under Applicable Law.
Section 7.06. Binding Effect. (a) The provisions of this Mortgage shall be
binding upon and inure to the benefit of each of the parties hereto and their
respective successors and assigns.
(b) To the fullest extent permitted under Applicable Law, the provisions of
this Mortgage binding upon the Mortgagor shall be deemed to be covenants which
run with the land.
(c) Nothing in this Section shall be construed to permit the Mortgagor to
Transfer or xxxxx x Xxxx upon the Mortgaged Property contrary to the provisions
of the Credit Agreement.
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Section 7.07. GOVERNING LAW. THIS MORTGAGE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.08. Waiver of Jury Trial. EACH PARTY HERETO WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS MORTGAGE OR ANY TRANSACTION CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 7.09. Local Law Provisions. This Mortgage is not a mortgage of real
property principally improved or to be improved by one or more structures
containing in the aggregate not more than six residential dwelling units, each
dwelling unit having its own separate cooking facilities.
Section 7.10. Multisite Real Estate Transaction. The Mortgagor acknowledges
that this Mortgage is one of a number of Mortgages and other Security Documents
("Other Mortgages") that secure the Secured Obligations. Mortgagor agrees that
the Lien of this Mortgage shall be absolute and unconditional and shall not in
any manner be affected or impaired by any acts or omissions whatsoever of
Mortgagee, and without limiting the generality of the foregoing, the Lien hereof
shall not be impaired by any acceptance by the Mortgagee of any security for or
guarantees of the Secured Obligations, or by any failure, neglect or omission on
the part of Mortgagee to realize upon or protect any Secured Obligation or any
collateral security therefor including the Other Mortgages. The Lien hereof
shall not in any manner be impaired or affected by any release (except as to the
property released), sale, pledge, surrender, compromise, settlement, renewal,
extension, indulgence, alteration, changing, modification or disposition of any
of the Secured Obligations or of any of the collateral security therefor,
including the Other Mortgages or of any guarantee thereof, and, to the fullest
extent permitted by Applicable Law, Mortgagee may at its discretion foreclose,
exercise any power of sale, or exercise any other remedy available to it under
any or all of the Other Mortgages without first exercising or enforcing any of
its rights and remedies hereunder. Such exercise of Mortgagee's rights and
remedies under any or all of the Other Mortgages shall not in any
39
manner impair the indebtedness hereby secured or the Lien of this Mortgage and
any exercise of the rights or remedies of Mortgagee hereunder shall not impair
the Lien of any of the Other Mortgages or any of Mortgagee's rights and remedies
thereunder. To the fullest extent permitted by Applicable Law, Mortgagor
specifically consents and agrees the Mortgagee may exercise its rights and
remedies hereunder and under the Other Mortgages separately or concurrently and
in any order that it may deem appropriate and waives any rights of subrogation.
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IN WITNESS WHEREOF, the Mortgagor has executed and delivered this
Mortgage as of the day first set forth above.
XEROX CORPORATION
By:_______________________
Name:
Title:
41
UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Within New York State)
STATE OF NEW YORK )
COUNTY OF NEW YORK) ss.:
On this ____ day of _____________, in the year 2002, before me, the
undersigned, personally appeared ___________________________________, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
___________________
Notary Public
UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Outside of New York State)
______________________/2/ ) ss.:
On this ____ day of __________, in the year 20__, before me, the
undersigned, personally appeared ____________________, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument, and that
such individual made such appearance before the undersigned in the
____________________/3/.
_________________________
Notary Public
[Notary Seal]
________________________
/0/ Xxxxxx xxxxx, xxxxxxxxxxxx, xxxxxxxx, xxxxxxxxx, possession or
country where the acknowledgment is taken.
/3/ Insert the city, county or other political subdivision and the
state, commonwealth, district, territory, possession or country where the
acknowledgment is taken.
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EXHIBIT A
Description of the Land
EXHIBIT B
Permitted Encumbrances
Those security interests, liens and other matters described in the commitment to
issue title insurance of First American Title Insurance Company, Title No.
905-M-73,848 (Xxxxxxxxx), 905-M-86,772 (Xxxxxxx) and 905-M-________ (Rochester),
dated _________ __, 2002 as "marked" and updated as of the date hereof.
45
