DRAFT
Exhibit D
to Indenture
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MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT
OF RENTS AND LEASES AND FIXTURE FILING
BY
PLANET HOLLYWOOD (REGION III), INC.,
AS MORTGAGOR
TO
UNITED STATES TRUST COMPANY OF NEW YORK,
AS COLLATERAL AGENT AND TRUSTEE,
AS MORTGAGEE
THIS MORTGAGE AFFECTS THE FOLLOWING PREMISES:
0000 XXXXXXXX
XXX XXXX, XXX XXXX
SECTION: 5
BLOCK: 1018
LOTS: PART OF XXX 00
XXXX XX XXX 00 (AIR RIGHTS ONLY)
When recorded return to:
Xxxxxx, Xxxxxxx & Xxxxxxx
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ......................................................7
SECTION 1.1. Terms Defined in Indenture............................7
SECTION 1.2. Additional Terms Defined in this Mortgage.............7
SECTION 1.3. Terms Defined in Uniform Commercial Code.............14
SECTION 1.4. Rules of Interpretation..............................14
ARTICLE II COVENANTS AND AGREEMENTS OF MORTGAGOR ..........................14
SECTION 2.1. Payment and Performance of Obligations ..............14
SECTION 2.2. Further Assurances ..................................14
SECTION 2.3. Repair and Replacement...............................15
SECTION 2.4. Compliance With Requirements and Payment
of Impositions and Retail Unit Charges............16
SECTION 2.5. Insurance and Casualty ...............................16
SECTION 2.6. Condemnation..........................................16
SECTION 2.7. Application of Insurance Proceeds and
Condemnation Proceeds ...............................17
SECTION 2.8. Transfer Restrictions.................................17
SECTION 2.9. Mortgagee's Right to Perform .........................17
SECTION 2.10. Subrogation .........................................18
SECTION 2.11. Certain Tax Law Changes .............................18
SECTION 2.12. Future Advances .....................................18
SECTION 2.13. Bridge Loan Mortgage ................................19
ARTICLE III SECURITY AGREEMENT AND FIXTURE FILING .........................19
SECTION 3.1. Security Agreement ...................................19
SECTION 3.2. Fixture Filing .......................................19
SECTION 3.3. Security Deposit Collateral...........................20
SECTION 3.4. Representations, Warranties and Covenants.............20
ARTICLE IV ASSIGNMENT OF RENTS AND LEASES .................................22
SECTION 4.1. Assignment of Rents and Leases ..........................22
ARTICLE V ASSIGNMENT OF MATERIAL AGREEMENTS ...............................24
SECTION 5.1. Assignment of Material Agreements .......................24
ARTICLE VI DEFAULTS AND REMEDIES ..........................................26
SECTION 6.1. Events of Default .......................................26
SECTION 6.2. Remedies ................................................26
SECTION 6.3. Possession of Property ..................................28
SECTION 6.4. Appointment of Receiver .................................29
SECTION 6.5. Waiver of Stay, Extension, Moratorium
and Marshalling Laws and Equity of Redemption ..........29
SECTION 6.6. Mortgagee Authorized to Execute Documents ...............29
SECTION 6.7. Collateral Situated in More than One County .............30
SECTION 6.8. Collateral in Other States ..............................30
SECTION 6.9. Application of Proceeds .................................30
SECTION 6.10. Setoff .................................................31
SECTION 6.11. Receipt a Sufficient Discharge to Purchaser ............31
SECTION 6.12. Sale a Bar Against Mortgagor ...........................31
SECTION 6.13. Remedies Cumulative; Waiver ............................31
SECTION 6.14. No Liability of Mortgagee ..............................32
ARTICLE VII MISCELLANEOUS .................................................32
SECTION 7.1. Termination; Defeasance .................................32
SECTION 7.2. Rights Cumulative; Waivers ..............................33
SECTION 7.3. Fees and Expenses .......................................33
SECTION 7.4. Indemnification .........................................34
SECTION 7.5. Notices .................................................34
SECTION 7.6. Amendment and Waiver ....................................35
SECTION 7.7. Expenses of Mortgagor's Agreements and Duties ...........35
SECTION 7.8. Mortgagee's Right to Perform on Mortgagor's Behalf ......35
SECTION 7.9. Mortgagee's Right to Use Agents and to
Act in Name of Mortgagor ...............................35
SECTION 7.10. No Compensation or Expense .............................35
SECTION 7.11. Limitation of Obligations with
Respect to Mortgaged Property .........................35
SECTION 7.12. Time of the Essence ....................................36
SECTION 7.13. Disclosures ............................................36
SECTION 7.14. Inconsistency with Indenture ...........................36
SECTION 7.15. Severability ...........................................36
SECTION 7.16. Headings ...............................................37
SECTION 7.17. Assignment; Benefit ....................................37
SECTION 7.18. Governing Law ..........................................37
SECTION 7.19. Waiver Of Jury Trial ...................................37
SECTION 7.20. Consent To Jurisdiction ................................37
SECTION 7.21. Limitation on Interest Payable .........................38
SECTION 7.22. Covenants To Run With the Land .........................39
SECTION 7.23. No Merger ..............................................39
SECTION 7.24. Relationship ...........................................39
SECTION 7.25. Reserved ...............................................39
SECTION 7.26. Subordination to Bridge Loan Mortgage...................39
SECTION 7.27. Subject to Retail Unit Contract of Sale ................39
ARTICLE VIII NEW YORK LAW PROVISIONS ......................................40
SECTION 8.1. Execution of Financing Statements .......................40
SECTION 8.2. Lien Law ................................................40
SECTION 8.3. Provision Regarding Residential Dwelling Units ..........40
SECTION 8.4. Insurance................................................36
SECTION 8.5. Leases...................................................37
SECTION 8.6. Statutory Construction...................................37
SECTION 8.7. Transfer Taxes...........................................37
EXHIBITS
Exhibit A - Description of Land
Exhibit B - Permitted Exceptions
Exhibit C - Information for Financing Statements
THIS MORTGAGE IS SUBJECT TO AN INTERCREDITOR AND SUBORDINATION AGREEMENT DATED
OF EVEN DATE HEREWITH BY AND AMONG THE CIT GROUP/BUSINESS CREDIT, INC., AS AGENT
FOR THE LENDERS UNDER THE REVOLVING CREDIT AGREEMENT, WILMINGTON TRUST COMPANY,
AS AGENT UNDER THE SENIOR NOTE PURCHASE AGREEMENT, AND UNITED STATES TRUST
COMPANY OF NEW YORK, AS TRUSTEE UNDER THE PIK INDENTURE, AND CONSENTED TO BY THE
PIK HOLDERS SIGNATORY THERETO, WHICH MATERIALLY AFFECTS CERTAIN PAYMENT RIGHTS,
SUBORDINATES CERTAIN OBLIGATIONS AND CERTAIN SECURITY INTERESTS, AND LIMITS
RIGHTS TO ENFORCEMENT. ALL PERSONS OR OTHER ENTITIES WHICH AT ANY TIME HOLD
INDEBTEDNESS UNDER THIS MORTGAGE ARE BOUND BY THE TERMS OF SUCH INTERCREDITOR
AGREEMENT WHICH WILL BE MADE AVAILABLE UPON REQUEST.
MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT
OF RENTS AND LEASES AND FIXTURE FILING
THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND LEASES AND
FIXTURE FILING (this "MORTGAGE"), dated as of March __, 2000, is given by PLANET
HOLLYWOOD (REGION III), INC., a Florida corporation, having an address at c/o
Planet Hollywood International, Inc., Corporate Office, 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000, Attention: Chief Financial Officer (together with its
successors and permitted assigns, "Mortgagor"), to United States Trust Company
of New York, as trustee and collateral agent under that certain Indenture (such
Indenture, as amended or otherwise modified from time to time, the "INDENTURE"),
dated as of the date hereof, among Planet Hollywood International, Inc., a
Delaware corporation (the "COMPANY") and the parties whose names and signatures
appear on the signature pages thereto under the heading "Subsidiary Guarantors"
(collectively, the "SUBSIDIARY GUARANTORS"), having an address at Corporate
Trust & Agency Administration, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, Attention: Corporate Trust Administration (in such capacity,
together with its successors and permitted assigns, "MORTGAGEE").
BACKGROUND:
A. Mortgagor is the owner of a fee simple interest in portions of
certain improved real property known by the street address 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx, as more particularly described herein.
B. Pursuant to the Indenture, the Company may issue 10% Secured
Deferrable Interest Notes due 2005 in an aggregate principal amount of
___________ Dollars ($____________) (collectively with all notes issued in
connection with the substitution, replacement or transfer thereof, and as the
same may hereafter be amended or modified, the "NOTES") to certain entities (the
"HOLDERS"). C. Mortgagor is a Subsidiary Guarantor and is a party to the
Indenture. D. It is a condition precedent to the Holders accepting the Notes
pursuant to the Indenture that, among other things, Mortgagor execute and
deliver to Mortgagee this Mortgage granting to Mortgagee, liens and security
interests in all of Mortgagor's right, title and interest in and to the
Mortgaged Property (as hereinafter defined). E. To induce Mortgagee to enter
into the Indenture and to induce the Holders to accept the Notes in accordance
with the terms of the Indenture, Mortgagor desires to execute and deliver this
Mortgage to Mortgagee on the terms set forth therein and herein.
GRANT OF LIEN:
NOW THEREFORE, to secure the full and timely payment and performance
of all of the Secured Obligations (as hereinafter defined), including, without
limitation, the obligation to pay all principal, interest, fees and other
amounts payable in respect of the Notes in the original principal amount of
$_____________ or otherwise payable under the terms of the Indenture and the
other Security Documents (as defined in the Indenture), Mortgagor hereby
irrevocably grants, bargains, sells, mortgages, warrants, aliens, devises,
releases, hypothecates, pledges, assigns, transfers and conveys to Mortgagee and
to the extent the same constitutes Personal Property (as hereinafter defined)
grants to Mortgagee a security interest in, forever, all right, title, interest,
claim and estate that Mortgagor may now have or may hereafter acquire in, to or
under, or as holder of, any and all the following (collectively, the "MORTGAGED
PROPERTY"):
A. LAND. The land and volume of space described on EXHIBIT A, together
with all and singular the tenements, rights, easements, hereditaments, rights of
way, privileges, liberties, appendages and appurtenances now or hereafter
belonging or in any way appertaining to such land and volume of space; all
streets, roads, highways and alleys (vacated or otherwise) adjoining such land
and volume of space or any part thereof; and all strips and gores belonging,
adjacent or pertaining to such land (collectively, the "LAND").
B. IMPROVEMENTS AND FIXTURES. All buildings, structures, replacements,
fixtures and fittings and other improvements and property of every kind and
description now or hereafter located on or within the Land, including water,
sanitary and storm sewer, drainage, electricity, steam, gas, telephone and other
utility facilities, parking areas, roads, driveways, walks and other site
improvements, together with all equipment, appliances, machinery, tools,
accessories, apparatus, building or construction materials, and other articles
of any kind or nature whatsoever affixed or attached to or within the Land,
including all motors, boilers, engines, pumps, compressors, tanks and similar
devices, all heating, electrical, lighting, power, plumbing, air conditioning,
refrigeration, ventilation and mechanical equipment, all pipes, ducts, conduits,
cables and other transmission devices and equipment, and all elevators,
escalators, lifts, walls, partitions, doors, windows and other equipment and
property affixed to the Land that is real estate or real property or fixtures
under applicable law of the State (as hereinafter defined) (collectively, the
"IMPROVEMENTS," and together with the Land, the "PROPERTY"); it being understood
and agreed that the term "Property" as used herein shall include the Retail Unit
(as defined in the Declaration, hereinafter defined). Without limiting the
foregoing, from and after the date on which a declaration of condominium is
filed with respect to the Land and portions of the Improvements owned by
Mortgagor and certain adjacent real property pursuant to Section 8.4 of the
Declaration (as hereinafter defined), the term "PROPERTY" shall mean the Retail
Unit (as defined in the Declaration) and the Improvements thereon, to the extent
not included within the definition of Retail Unit under the Declaration as of
the date hereof.
C. MINERALS AND RELATED RIGHTS. All rights, royalties and profits with
respect to all minerals, coal, oil and gas and other substances of any kind or
character on or underlying the Land, together with all water and water rights
(whether riparian, appropriative or otherwise and whether or not appurtenant).
D. EASEMENT, AIR AND DEVELOPMENT RIGHTS. All easements, air rights,
development rights or credits, zoning rights or other similar rights or
interests which benefit or are appurtenant to the Property, including, without
limitation, the easements, benefits and covenants set forth in (i) the Zoning
Lot, Development and Easement Agreement, dated December 3, 1997, made by and
among Xxxx Theatre Company ("XXXX"), Times Square Partners LLC ("TSP") and
Atlantic Financial Group Ltd. ("ATLANTIC") and recorded in the Office of the
Register of the City of New York, County of New York (the "REGISTER'S OFFICE")
on December 18, 1997, in Reel 2523, Page 2094 (as the same may hereafter be
amended or modified, the "ZONING LOT AGREEMENT"), (ii) the Declaration of
Restrictions, dated December 3, 1997, made by Xxxx, TSP and Atlantic and
recorded in the Register's Office on December 18, 1997, in Reel 2523 page 2084,
and (iii) the Declaration of Easements, dated as of December 3, 1997, between
TSP and Atlantic, and recorded in the Register's Office on December 18, 1997, in
Reel 2523 page 2124 (as the same may hereafter be amended or modified, the
"DECLARATION").
E. PARKING RIGHTS. All parking facilities located other than on the
Property and used or intended to be used in connection with the operation,
ownership or use of the Property, any and all replacements and substitutions for
the same, and any other parking rights, easements, covenants and other interests
in parking facilities acquired by Mortgagor for the use of tenants or occupants
of the Improvements.
F. TANGIBLE PROPERTY. All building materials, goods, construction
materials, appliances (including, without limitation, stoves, ranges, ovens,
disposals, refrigerators, water fountains, water coolers, fans, heaters,
dishwashers, clothes washers and dryers, water heaters, hood and fan
combinations, kitchen equipment, laundry equipment, kitchen cabinets and other
similar equipment), stocks, beds, mattresses, bedding and linens, supplies,
blinds, window shades, drapes, carpets, floor coverings, office equipment,
trees, timber, crops, growing plants and shrubberies, control devices, equipment
and machinery (including window cleaning, building cleaning, swimming pool,
recreational, monitoring, garbage, pest control and other equipment), motor
vehicles, tools, furnishings, furniture, lighting, all nonstructural additions
to the Property and all other tangible property of any kind or character,
together with all replacements thereof, located on or in or used in connection
with the complete and comfortable use, enjoyment, occupation, operation,
development and maintenance of the Property, regardless of whether or not
located on or in the Property or located elsewhere for purposes of storage,
fabrication or otherwise, exclusive of any of the foregoing items leased by
Mortgagor or owned by tenants (other than Mortgagor) of portions of the
Property.
G. MATERIAL AGREEMENTS. All contracts and agreements relating to the
Property (including, without limitation, the Retail Unit Contract of Sale, the
Improvements Agreement, the Master Agreement and the License Agreement (as such
terms are hereinafter defined), and the Declaration), and any deposits or other
security or collateral given by any party to Mortgagor as security for or in
respect of the performance of such party's obligations under any agreement
relating to the Property (including, without limitation, the Deposit, as defined
in the Retail Unit Contract of Sale), together with all rents, income, profits,
issues, royalties, revenues and other benefits derived thereunder or therefrom,
and all title insurance policies, guarantees and warranties and other contracts
and agreements, including any agreements taken or acquired by Mortgagor by
assignment or of which Mortgagor is a third-party beneficiary, now or hereafter
relating to the Property, including all water, sanitary and storm sewer,
drainage, electricity, steam, gas, telephone and other utility supply and
service contracts (collectively, "MATERIAL AGREEMENTS").
H. LEASES AND RENTS. All Leases (as hereinafter defined) now or
hereafter in effect for the use, possession or occupancy of the Property or any
part thereof, and all estate, right, title and interest of Mortgagor in and to
any and all rents, income, profits, issues, royalties, revenues and other
benefits derived from the Property or any other portion of the Mortgaged
Property or from or under any of the Leases (collectively, "RENTS").
I. SECURITY DEPOSIT COLLATERAL. All cash, securities, letters of
credit, guarantees, surety bonds and similar instruments (collectively, the
"SECURITY DEPOSIT COLLATERAL") from time to time delivered to Mortgagor as
security for the performance of any tenant under a Lease, but excluding any
Security Deposit Collateral which, by its terms, is unassignable or may not be
pledged or transferred.
J. INTANGIBLES. All goodwill, trademarks, trade names, option rights,
purchase contracts, books and records and general intangibles of Mortgagor
relating to the Property, or licenses or rights to use such goodwill,
trademarks, trade names, intellectual property or other intangibles granted to
Mortgagor by any Affiliate (as defined in the Indenture) or any other party, and
all accounts, contract rights, instruments, chattel paper and other rights of
Mortgagor for the payment of money for property sold or lent, for services
rendered, for money lent, or for advances or deposits made, and any other
intangible property of Mortgagor relating to the Property, but, in each case
with respect to any of the foregoing intangible property, only if an d to the
extent the same relates to, and is used or to be used in connection with, the
Property or the Hotel/Retail Property.
K. PLANS. All plans and specifications, designs, drawings and other
information, materials and matters heretofore or hereafter prepared relating to
the Property (including, without limitation, the Planet Hollywood Plans, as
defined in the Improvements Agreement).
L. PERMITS. All licenses, authorizations, certificates, variances,
consents, approvals and other permits now or hereafter relating to the Property,
excluding from the grant under this Granting Clause licenses, authorizations,
certificates, variances, consents, approvals and other permits that cannot be
transferred or encumbered by Mortgagor without causing a default thereunder or a
termination thereof.
M. LEASES OF FURNITURE, FIXTURES AND EQUIPMENT. All right, title and
interest of Mortgagor as lessee in, to and under any leases of furniture,
furnishings and equipment now or hereafter installed in or at any time used in
connection with the Property.
N. CONDEMNATION PROCEEDS. All Condemnation Proceeds (as hereinafter
defined).
O. INSURANCE PROCEEDS. All Insurance Proceeds (as hereinafter
defined).
P. AWARDS. All rights and interests of Mortgagor against others,
including adjoining property owners and governmental entities, arising
out of damage to the Mortgaged Property, including damage due to environmental
injury or release of Hazardous Materials.
Q. FURTHER INTERESTS. All greater or additional estate, right, title
and interest of Mortgagor in, to or under any of the Mortgaged Property
hereafter acquired by Mortgagor, and all right, title and interest of 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 Mortgagor
(including any Mortgaged Property acquired by Mortgagor by foreclosure or deed
in lieu of foreclosure pursuant to the terms of any mortgage held by Mortgagor)
or constructed or located on, or attached to, the Property, in each case,
immediately upon such acquisition, release, construction, location or
attachment, without any further conveyance, mortgage, assignment or other act by
Mortgagor; and all right, title and interest of Mortgagor in, to, under or
derived from all other property and rights which by any instrument executed by
Mortgagor or any Person on its behalf are otherwise subjected to the lien of
this Mortgage.
R. PROCEEDS. All proceeds of any voluntary or involuntary conversion
of any of the foregoing into cash or other property, including, without
limitation, Insurance Proceeds and Condemnation Proceeds and liquidated claims.
S. OTHER PROPERTY. All other property and rights of Mortgagor of every
kind and character, in each case only if and to the extent such other property
and rights relate to and are sued or to be used in connection with the Mortgaged
Property or the Hotel/Retail Property, and all proceeds and products of any of
the foregoing.
TO HAVE AND TO HOLD the Mortgaged Property unto Mortgagee, and its
successors and assigns, forever, under and subject to the terms and conditions
of the Indenture and this Mortgage and for the security and enforcement of the
prompt and complete payment, performance and observance when due of all of the
Secured Obligations.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, the maximum
amount of indebtedness secured by this Mortgage at execution or which under any
contingency may become secured hereby at any time hereafter is _______ Million
and No/100 Dollars ($_____________), plus interest on the principal outstanding
under the Notes from time to time, plus fees payable from time to time to
Mortgagee pursuant to the terms of the Indenture, plus all amounts expended by
Mortgagee at any time to maintain the lien of this Mortgage or to protect the
property secured by this Mortgage, or otherwise, including, without limitation,
amounts in respect of insurance premiums, real estate taxes, Retail Unit Charges
(as defined in the Declaration), litigation expenses to prosecute or defend the
rights, remedies and lien of this Mortgage or title to the property secured
hereby, and any costs, charges or amounts to which Mortgagee becomes subrogated
upon payment, whether under recognized principles of law or equity or under
express statutory authority, together with interest on all the foregoing amounts
as provided for in the Indenture or this Mortgage.
PROVIDED ALWAYS that this Mortgage is upon the express condition that
the Mortgaged Property shall be released from the lien of this Mortgage in the
manner and at the time provided in SECTION 7.1 of this Mortgage.
MORTGAGOR FURTHER COVENANTS AND AGREES WITH MORTGAGEE AS FOLLOWS:
ARTICLE I
DEFINITIONS
SECTION 1.1. TERMS DEFINED IN INDENTURE. All terms defined in the
Indenture and not otherwise defined herein have, as used herein, the respective
meanings provided for in the Indenture.
SECTION 1.2. ADDITIONAL TERMS DEFINED IN THIS MORTGAGE. The following
terms, as used herein, have the following meanings:
"BANKRUPTCY CODE" means the United States Bankruptcy Code, Title 11 of
the United States Code, ss.101 et seq., as amended from time to time.
"BRIDGE LOAN MORTGAGE" means that certain Mortgage, Security
Agreement, Assignment of Rents and Leases and Fixture Filing dated as of the
date hereof, given by Mortgagor to Wilmington Trust Company, as agent for the
holders of the notes issued pursuant to that certain Note Purchase Agreement,
dated as of the date hereof among the Company, the purchasers signatory thereto
and Wilmington Trust Company, as agent, and encumbering the Mortgaged Property.
"BUSINESS DAY" is defined in the Indenture.
"CASUALTY" means damage to, destruction or loss of or other casualty
with respect to any of the Property.
"COLLATERAL" is defined in the Indenture.
"CONDEMNATION" means any actual or threatened condemnation, taking or
exercise of the power of eminent domain or similar action or proceeding relating
to the Mortgaged Property.
"CONDEMNATION PROCEEDS" means, at any time, any award or payment paid
or payable by reason of any Condemnation, whether from the exercise of the right
of Condemnation or any transfer made in lieu thereof or any injury to or
decrease in value of any property in connection with a Condemnation, including
all amounts paid pursuant to any agreement with any condemning authority that
has been made in settlement of any proceeding relating to a Condemnation and any
interest earned on such award, payment or amounts, less the reasonable costs and
expenses (including reasonable attorneys' fees and expenses) of Mortgagor and
Mortgagee in collecting such award, payment or amounts, which costs and expenses
shall be paid out of such award, payment or amounts.
"DECLARATION" is defined in Granting Clause D, and shall include all
exhibits to such instrument and all amendments, restatements, supplements and
replacements thereof from time to time, including, without limitation, the
Declaration of Condominium to be entered into by Mortgagee and the other Owners
(as defined in the Declaration) pursuant to Section 8.4 of the Declaration.
"DECLARATION REQUIREMENTS" means all provisions of the Declaration
binding upon and applicable to Mortgagor and the Mortgaged Property.
"ENVIRONMENTAL LAW" shall mean all federal, state and local laws,
statutes, ordinances and regulations, now or hereafter in effect relating to the
regulation and protection of human health, safety, the environment and natural
resources. Environmental Laws include but are not limited to the Comprehensive
Environmental Response; Compensation and Liability Act of 1980, as amended (42
U.S.C.ss.960 ET SEQ.) ("CERCLA"); the Hazardous Material Transportation Act, as
amended (49 U.S.C.ss.180 ET SEQ.); the Resource Conservation and Recovery Act,
as amended (42 U.S.C.ss.6901 ET SEQ.) ("RCRA"); the Toxic Substance Control Act,
as amended (15 U.S.C.ss.2601 ET SEQ).); the Clean Air Act, as amended (42
U.S.C.ss.7401 ET SEQ.); the Federal Water Pollution Control Act, as amended (33
U.S.C.ss.1251 ET SEQ.); and their state and local counterparts or equivalents.
"EVENTS OF DEFAULT" is defined in the Indenture.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, city, town, municipality, county, local or other political subdivision
thereof or thereto and any department, commission, board, bureau,
instrumentality, agency or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"GUARANTOR" is defined in the Indenture.
"GUARANTEE" is defined in the Indenture.
"HAZARDOUS MATERIALS" shall mean (i) any element, compound or chemical
that is defined, listed or otherwise classified as a solid waste, contaminant,
pollutant, toxic pollutant, hazardous substance, extremely hazardous substance,
toxic substance, hazardous waste, or special waste under any Environmental Law,
(ii) petroleum and its refined fractions, (iii) any polychlorinated biphenyls,
(iv) any flammable, explosive or radioactive materials, and (v) any
asbestos-containing materials.
"HOTEL/RETAIL PROPERTY" shall mean the improved parcel of real
property commonly known as, and located at, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx,
and having the lot designation Tax Xxx 00, Xxxxx 0000, on the Tax Map of the
City of New York, together with all rights appurtenant thereto.
"IMPOSITIONS" means all taxes (including real estate taxes and sales
and use taxes), assessments (including all assessments for public improvements
or benefits, whether or not commenced or completed prior to the date hereof),
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 Mortgaged Property or any interest therein, (ii)
any occupancy, use or possession of, or activity conducted on, the Mortgaged
Property, (iii) the Rents from the Mortgaged Property or the use or occupancy
thereof, or (iv) the Secured Obligations, but excluding income, excess profits,
franchise, capital stock, estate, inheritance, succession, gift or similar taxes
of Mortgagor or Mortgagee, except to the extent that such taxes of Mortgagor or
Mortgagee 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 AGREEMENT" means that certain Improvements Agreement,
dated as of December 3, 1997, by and among TSP, Atlantic and Mortgagor, as the
same may be amended, modified or supplemented from time to time.
"INDEMNIFIED PARTY" means, with respect to a Person entitled to the
benefit of an indemnity, such Person's officers, directors, shareholders,
partners, members, employees, agents and representatives.
"INSURANCE POLICIES" means the insurance policies and coverages
required to be maintained by Mortgagor or another Obligated Party in accordance
with the provisions set forth in Appendix A hereto.
"INSURANCE PROCEEDS" means, at any time, all proceeds or payments to
which Mortgagor or any other Obligated Party may be or become entitled under any
of the Insurance Policies and any and all unearned premiums accrued, accruing or
to accrue under any Insurance Policies and all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing into cash or liquidated
claims, plus (i) the amount of any deductibles under such Insurance Policies and
(ii) any interest earned on such proceeds, payments or amounts, and less (iii)
the reasonable costs and expenses of Mortgagor, any other Obligated Party and
Mortgagee in collecting such proceeds, payments or amounts, which costs and
expenses shall be paid out of such proceeds, payments or amounts.
"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) binding
upon Mortgagor or any other Obligated Party or applicable to the Mortgaged
Property or any adjoining vaults, sidewalks, parking areas or driveways or any
use or condition thereof.
"INTERCREDITOR AGREEMENT" is defined in the Indenture.
"LEASE" means any lease, tenancy, subtenancy, license, franchise,
concession or other use or occupancy agreement relating to the Property,
together with any guarantee of the obligations of the landlord or the tenant
thereunder, or any occupancy or right to possession under Section 365 of the
Bankruptcy Code in the event of the rejection of any of the foregoing by the
landlord or its trustee pursuant to such Section; "landlord" means the landlord,
sublandlord, lessor, sublessor, franchisor or other grantor of a right of use or
occupancy under a Lease and any guarantor of its obligations thereunder; and
"TENANT" means the tenant, subtenant, lessee, sublessee, licensee, franchisee,
concessionaire or other occupant under a Lease and any guarantor of its
obligations thereunder.
"LEGAL REQUIREMENT" means (i) with respect to any Person, including
Mortgagor and the other Obligated Parties, any constitution, act, statute, law,
ordinance, treaty, rule, regulation or official interpretation of, or any
judgment, injunction, order, decision, decree, license, permit or authorization
issued by, any Governmental Authority and (ii) with respect to Mortgagor or any
other Obligated Party, any legal requirement or rule, regulation, by-law,
official interpretation, license, permit, certification or authorization of any
self-regulatory organization, licensing authority, stock exchange or trading
system, in each case applicable to Persons (including brokers and dealers)
involved in the business of managing, trading, underwriting or placing
securities, including without limitation those of the National Association of
Securities Dealers, Inc. and the New York Stock Exchange.
"LICENSE AGREEMENT" means the License Agreement, dated as of December
3, 1997, among Planet Hollywood International, Inc., Planet Hollywood (Region
IV), Inc., Mortgagor and TSP, as the same may be amended, modified or
supplemented from time to time.
"LIEN" means any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, including, but not limited to, any conditional sale or title
retention arrangement, and any assignment, deposit arrangement or lease intended
as, or having the effect of, security.
"LOSSES" means all obligations, damages, claims, causes of action,
costs, fines, fees, charges, penalties, deficiencies, losses, diminutions in
value, expenses (including court costs, fees and expenses of attorneys,
accountants, consultants and other experts) and other liabilities, and, with
respect to any indemnity, includes all attorneys' fees and expenses in
connection with the enforcement and collection of such indemnity.
"MASTER AGREEMENT" means the Master Agreement, dated as of December 2,
1997 by and among TSP, Planet Hospitality Holdings, Inc., Intell Times Square
LLC, Madison Broadway Associates LLC, SPE Times Square, Inc. and Xxx Xxxxx, as
the same may be amended, modified, or supplemented from time to time.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
condition (financial or otherwise), operations, performance, properties or
assets of the Company, each Subsidiary and each Subsidiary Guarantor, if any, or
business of (x) the Company or (y) the Company, its Subsidiaries and any
Subsidiary Guarantor taken as a whole, (ii) the ability of (x) the Company or
(y) the Company, its Subsidiaries and any Subsidiary Guarantor collectively, to
pay or perform their Obligations in accordance with their terms, (iii) the
legality, validity or enforceability of this Agreement or any other Security
Document or the priority of any Lien, (iv) the legality, validity or
enforceability of the issuance of the Shares, or (v) the value or marketability
of either (x) the Retail Unit, or (y) the balance of the Retail Unit, [the
Membership Interest, the Retail Unit Contract of Sale, the Master Agreement, the
Improvements Agreement, the License Agreement, the TSP Agreement, the
Declaration of Easements, the Zoning Lot Agreement and the Planet Hollywood
Plan]., as determined by the Mortgagee in its sole discretion.
"OBLIGATED PARTIES" means, collectively, Mortgagor and each of its
direct or indirect Subsidiaries and each other Guarantor, if any. The term
"OBLIGATED PARTY" means any one of such Persons.
"OTHER PAYMENTS" is defined in SECTION 5.1(A). "PERMITTED EXCEPTIONS"
means those exceptions to title to the Property set forth on EXHIBIT B hereto.
"PERMITTED LIENS" means:
(a) Liens created pursuant to the Security Documents;
(b) Liens existing on the date as of which the Indenture is dated and
extensions and renewals thereof provided that such extensions and renewals do
not change the principal, interest, or other financial terms or obligations
thereof, as set forth in Appendix B hereof;
(c) Liens in connection with any taxes, assessments, governmental
charges, levies, or claims that are not yet due and payable or which the Company
is contesting in good faith and by appropriate proceedings diligently conducted
so long as reserves or other appropriate provisions as may be required by GAAP
have been made therefor and so long as the failure to pay the same would not
result in and could not reasonably be expected to result in a Material Adverse
Effect;
(d) Liens created by operation of Law other than environmental Liens,
such as materialmen's liens, mechanics' liens (not to exceed $50,000 in the
aggregate) and other similar Liens, arising in the ordinary course of business
which secure amounts not overdue for a period of more than sixty (60) days or
which are being contested in good faith by appropriate proceedings and which
have been bonded or with respect to which a stay of enforcement is in effect;
(e) deposits (including utility security deposits), pledges or Liens
(other than Liens arising under ERISA), securing (1) obligations incurred in
respect of workers' compensation, unemployment insurance or other forms of
governmental insurance or benefits, (2) the performance of bids, tenders,
leases, contracts (other than for the payment of money) and statutory
obligations, or (3) obligations on surety or appeal bonds, but only to the
extent such deposits, pledges or Liens are incurred or otherwise arise in the
ordinary course of business and secure obligations which are not past due;
(f) Liens in favor of the Mortgagor, subject to the Intercreditor
Agreement;
(g) purchase money Liens solely on the asset being acquired by the
Company, provided that each such Lien does not exceed $3,000,000;
(h) solely with respect to the Retail Unit, Permitted Exceptions;
(i) judgment Liens that do not constitute an Event of Default;
(j) existing Liens on assets acquired after the on the date as of
which the Indenture is dated;
(k) involuntary Liens in the case of the Inactive Guarantors (as
defined in the Note Purchase Agreement);
(l) precautionary UCC filings in connection with property not
constituting Collateral hereunder (E.G., leases of telecopier machines); ----
(m) an encumbrance of a landlord with respect to the interest of the
Company or Guarantors as a lessee or sublessee under a Lease but not including
any liens or encumbrances arising out of any default thereunder.
"PERSON" means an individual, corporation, partnership, limited
liability company, limited liability partnership, trust, unincorporated
association, joint venture, joint-stock company, government (including political
subdivisions), Governmental Authority or agency, or any other entity.
"PERSONAL PROPERTY" means all of the items described in the definition
of Mortgaged Property that constitute personal property under the Uniform
Commercial Code or other applicable law (including common law) of the State.
"PLANET HOLLYWOOD PLANS" is defined in the Improvements Agreement.
"POTENTIAL DEFAULT" means any event or condition which, with notice or
passage of time, or any combination of the foregoing, would constitute an Event
of Default.
"RECEIVER" means any receiver, trustee liquidator, conservator,
custodian or similar Person.
"RETAIL UNIT" is defined in the Declaration.
"RETAIL UNIT CHARGES" means all amounts payable by the owner of the
Property under the Declaration.
"RETAIL UNIT CONTRACT OF SALE" means that certain Purchase and Sale
Agreement, dated as of January 4, 2000, between Mortgagor, as seller, and Intell
1567 LLC, as purchaser, with respect to the Mortgaged Property.
"SECURED OBLIGATIONS" means (i) the Obligations (as defined in the
Indenture), which include all indebtedness, obligations and liabilities of
Mortgagor to Mortgagee incurred under or related to the Notes, the Indenture,
this Mortgage or any other Security Document, whether such indebtedness,
obligations or liabilities are direct or indirect, secured or unsecured, joint
or several, absolute or contingent, due or to become due, whether for payment or
performance, now existing or hereafter arising, together with (ii) all fees,
costs, charges and expenses paid or incurred by Mortgagee or any of them in
connection with the creation, protection, preservation or enforcement of their
respective rights under the Indenture and the Security Documents, on a full
indemnity basis.
"SECURITY DOCUMENTS" is defined in the Indenture.
"STATE" means the State of New York.
"SUBSIDIARY" is defined in the Indenture.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code of the
State as in effect from time to time.
"UPPER FLOORS" has the meaning given to such term in the Retail Unit
Contract of Sale.
SECTION 1.3. TERMS DEFINED IN UNIFORM COMMERCIAL CODE. Unless
otherwise defined herein or in the Indenture, or unless the context otherwise
requires, when used in this Mortgage, terms defined in the Uniform Commercial
Code have the same meanings as given therein.
SECTION 1.4. RULES OF INTERPRETATION. In this Mortgage, unless
otherwise specified, (i) singular words include the plural and plural words
include the singular, (ii) words that include a number of constituent parts,
things or elements, including the terms "Land," "Improvements," "Property" and
"Mortgaged Property" (and each element thereof) 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, (iii) words importing
any gender include the other gender, (iv) references to any Person include such
Person's successors and assigns and, in the case of an individual, the word
"successor" includes such Person's heirs, devisees, legatees, executors,
administrators and personal representatives, (v) 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, (vi) the words "include" and "including," and
words of similar import, shall be deemed to be followed by the words ", without
limitation," (vii) the words "hereto," "herein," "hereof," and "hereunder," and
words of similar import, refer to this Mortgage in its entirety, (viii) unless
otherwise specified, references to Articles, Sections, Exhibits, Schedules,
paragraphs and clauses are to the Articles, Sections, Exhibits, Schedules,
paragraphs and clauses of this Mortgage, (ix) the Exhibits and Schedules to this
Mortgage are incorporated herein by reference, (x) the titles and headings of
Articles, Sections, Exhibits, Schedules, paragraphs and clauses are inserted as
a matter of convenience and shall not affect the construction of this Mortgage,
and (xi) unless otherwise specified, references to this Mortgage and to any
other Security Document include all amendments, modifications, supplements,
consolidations, replacements, extensions and renewals thereof from time to time.
ARTICLE II
COVENANTS AND AGREEMENTS OF MORTGAGOR
To protect the security of this Mortgage, so long as this Mortgage is
in effect, Mortgagor further covenants and agrees with Mortgagee as follows:
SECTION 2.1. PAYMENT AND PERFORMANCE OF OBLIGATIONS. Mortgagor shall
duly and punctually pay and perform all of the Secured Obligations. Mortgagor
represents and warrants that it has received a copy and is fully familiar with
the terms and provisions of the Indenture. All representations, warranties and
covenants made by Mortgagor in the Indenture (except to the extent that they are
not applicable to Mortgagor or the Mortgaged Property) are incorporated herein
by reference and are hereby made by Mortgagor as to itself and the Mortgaged
Property as though such representations, warranties and covenants were set forth
at length herein as the representations, warranties and covenants of Mortgagor.
SECTION 2.2. FURTHER ASSURANCES. At the request of Mortgagee,
Mortgagor shall, at Mortgagor's sole cost and expense: (a) promptly correct any
defect or error which may be discovered in this Mortgage or any financing
statement or other document relating hereto; (b) 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 or instruments
which Mortgagee may require from time to time, all in form and substance
reasonably satisfactory to Mortgagee, in order to effectuate, complete, perfect,
continue or preserve (i) the Lien and priority of this Mortgage as a perfected
second priority mortgage lien on the Mortgaged Property (junior only to the
Bridge Loan Mortgage), or (ii) any right, power or privilege granted or intended
to be granted to Mortgagee hereunder; and (c) pay all filing, registration and
recording taxes, fees, dues, imposts, assessments and charges in connection with
the execution, delivery, filing, registration or recording of any of the
foregoing.
SECTION 2.3. REPAIR AND REPLACEMENT; MAINTENANCE OF PROPERTIES, ETC.
(a) Mortgagor shall maintain the Mortgaged Property as required in subsection
2.3(b). In addition, Mortgagor shall not remove, demolish or materially alter
any of the Mortgaged Property. Whether or not it shall have received or
otherwise be entitled to receive any Insurance Proceeds or Condemnation
Proceeds, Mortgagor shall promptly repair, replace and rebuild any part of the
Mortgaged Property which may be damaged or destroyed by any Casualty (including
any Casualty for which insurance was not obtained or obtainable) or which may be
affected by any Condemnation, and shall complete and pay for, within a
reasonable time, any structure at any time in the process of construction or
repair on the Property, all in a manner reasonably satisfactory to Mortgagee.
Mortgagor shall not, without the prior written consent of Mortgagee, which will
not be unreasonably withheld, initiate, join in or consent to any private
restrictive covenant, zoning ordinance, or other public or private restrictions
limiting or defining the uses which may be made of the Mortgaged Property or any
part thereof, except as expressly contemplated by, and required pursuant to, the
Declaration.
(b) Maintain and preserve, and cause each of their respective
Subsidiaries to maintain and preserve, all of their properties (including all
real properties leased or owned by them) which are necessary or useful in the
proper conduct of their business in good working order and condition, ordinary
wear and tear excepted, and comply, and cause each of their respective
Subsidiaries to comply, at all times with the provisions of all Leases to which
each of them is a party as lessee or under which each of them occupies property,
so as to prevent any loss or forfeiture thereof or thereunder, except where any
failure to maintain and preserve their properties or failure to comply with the
provisions of their Leases, individually or in the aggregate, would not result
in and could not reasonably be expected to result in a MATERIAL ADVERSE EFFECT.
SECTION 2.4. COMPLIANCE WITH REQUIREMENTS AND PAYMENT OF IMPOSITIONS
AND RETAIL UNIT Charges. Mortgagor shall at all times (a) comply with, and shall
cause the Mortgaged Property at all times to comply with, all applicable Legal
Requirements, Insurance Requirements and Declaration Requirements; (b) promptly
pay all Impositions, Retail Unit Charges and all charges for utilities and other
services to the Mortgaged Property on or before the date on which the same shall
become due and payable; and (c) keep the Mortgaged Property free and clear of
all Liens other than Permitted Exceptions.
SECTION 2.5. INSURANCE AND CASUALTY.
(a) REQUIRED INSURANCE. During the term of this Mortgage, Mortgagor
shall maintain, or cause to be maintained, property, liability and other
insurance with respect to the Mortgaged Property as required pursuant to the
Indenture.
(b) ASSIGNMENT OF POLICIES ON FORECLOSURE. In the event of the
foreclosure of this Mortgage, or other transfer of title to the Mortgaged
Property, or any part thereof, by foreclosure sale, or by power of sale, or deed
in lieu of foreclosure, the purchaser of the Mortgaged Property, or such part
thereof, shall succeed to all of Mortgagor's rights with respect to the
Mortgaged Property, including any rights to unexpired, unearned or returnable
insurance premiums, subject to limitations on the assignment of blanket
policies, but limited to such rights as relate to the Mortgaged Property or such
part thereof. If Mortgagee acquires title to the Mortgaged Property, or any part
thereof, in any manner, it shall thereupon (as between Mortgagor and Mortgagee)
become the sole and absolute owner of the Insurance Policies, and all Insurance
Proceeds payable thereunder with respect to the Mortgaged Property with the sole
right to collect and retain all unearned or returnable premiums thereon with
respect to the Mortgaged Property, or such part thereof, if any.
SECTION 2.6. CONDEMNATION.
(a) NOTICE OF LOSS. In the event of any Condemnation or the
commencement of any proceedings or negotiations that might result in a
Condemnation, Mortgagor shall give notice thereof to Mortgagee, describing in
reasonable detail the nature and extent of such Condemnation or the nature of
such proceedings or negotiations and the nature and extent of the proposed
Condemnation, as the case may be.
(b) PROTECTION OF MORTGAGED PROPERTY. If a Condemnation occurs,
Mortgagor shall immediately take such action or cause such action to be taken as
may be necessary or appropriate to protect the remaining Mortgaged Property.
SECTION 2.7. APPLICATION OF INSURANCE PROCEEDS AND CONDEMNATION
PROCEEDS.
(a) PROCEEDS PAYABLE TO MORTGAGEE. Following a Casualty or a
Condemnation, Mortgagee shall apply the entire amount of any Insurance Proceeds
or Condemnation Proceeds to the payment of the Secured Obligations, whether or
not then due and payable. Notwithstanding any Casualty or Condemnation,
Mortgagor shall continue to pay the Secured Obligations at the time and in the
manner provided for in the Indenture, this Mortgage and the other Security
documents, and the Secured Obligations shall not be reduced until, and then only
to the extent that, any Insurance Proceeds or Condemnation Proceeds shall have
been actually received and applied by Mortgagee to the discharge of the Secured
Obligations. If the Mortgaged Property is sold, through foreclosure or
otherwise, prior to the receipt by Mortgagee of such Insurance Proceeds or
Condemnation Proceeds, Mortgagee shall have the right, whether or not a
deficiency judgment on the Indenture or on any Security document shall have been
sought, recovered or denied, to receive such Insurance Proceeds or Condemnation
Proceeds, or a portion thereof sufficient to pay the Secured Obligations,
whichever is less.
(b) PROSECUTION OF CLAIM FOR LOSS. If a Casualty or a Condemnation
shall occur, Mortgagor shall file and prosecute its claim or claims for any such
Insurance Proceeds or Condemnation Proceeds in good faith and with due diligence
and cause the same to be collected and paid over to Mortgagee, and hereby
irrevocably authorizes and empowers Mortgagee, in the name of Mortgagor or
otherwise, to collect and receipt for any such Insurance Proceeds or
Condemnation Proceeds and to adjust any insurance claims and to file and
prosecute such claim or claims, and although it is hereby expressly agreed that
the same shall not be necessary in any event, Mortgagor shall, upon demand of
Mortgagee, make, execute and deliver any and all assignments and other
instruments sufficient for the purpose of assigning any such Insurance Proceeds
or Condemnation Proceeds to Mortgagee, free and clear of any Liens whatsoever.
Mortgagor hereby irrevocably appoints Mortgagee as Mortgagor's attorney-in-fact
for each such purpose (which appointment is coupled with an interest) and
authorizes any Person to act upon the foregoing appointment.
SECTION 2.8. TRANSFER RESTRICTIONS. Mortgagor shall not mortgage,
hypothecate, pledge or suffer to exist any Lien (other than Permitted
Exceptions) on, or sell, transfer, convey or lease, all or any part of the
Mortgaged Property (or any interest therein), except as expressly permitted by
and in accordance with the terms of the Indenture.
SECTION 2.9. MORTGAGEE'S RIGHT TO PERFORM. If Mortgagor shall fail to
pay or perform any of the Secured Obligations, then Mortgagee, upon ten (10)
days' prior notice to Mortgagor may, but shall not be obligated to, make (or
cause to be made) any such payment or perform (or cause to be performed) any
such Secured Obligation of Mortgagor, in any form and manner deemed reasonably
appropriate by Mortgagee as agent or attorney-in-fact of Mortgagor, and any
amount so paid or extended, plus reimbursement to Mortgagee for its reasonable
out-of-pocket and other expenses, including legal expenses, for each matter for
which it acts under this Mortgage, shall be added to the Secured Obligations and
shall be paid to Mortgagee upon demand. By way of illustration and not in
limitation of the foregoing, Mortgagee may, but need not, make payments of
principal, interest or other charges on any obligations secured by any Permitted
Exception or other Lien or charge; purchase, discharge, compromise or settle any
tax Lien or any other Lien, encumbrance, suit, proceeding, title or claim
thereof; pay any premium owing on any insurance policy covering the Mortgaged
Property; or redeem from any tax sale or forfeiture affecting the Mortgaged
Property or contest any tax or assessment. In making any payment or securing any
performance relating to any such obligation of Mortgagor hereunder or
thereunder, Mortgagee, so long as it acts in good faith, shall be the sole judge
of the legality, validity and amount of any Lien or encumbrance and of all other
matters necessary to be determined in satisfaction thereof. No such action of
Mortgagee shall be considered as a waiver of any right accruing to it on account
of the occurrence of any default on the part of Mortgagor under this Mortgage,
any Event of Default or any default or event of default under the Indenture or
under any other Security Document.
SECTION 2.10. SUBROGATION. To the extent that Mortgagee, after the
date hereof, pays pursuant to the terms of this Mortgage, the Indenture, the
Intercreditor Agreement or any other Security Document any sum due under any
provision of law or any instrument or document creating any Lien prior or
superior to the Lien of this Mortgage, Mortgagee shall have and be entitled to a
Lien on the Mortgaged Property equal in priority to that discharged, and
Mortgagee shall be subrogated to, and receive and enjoy all rights and Liens
possessed, held or enjoyed by the holder of such Lien, which shall remain in
existence for the benefit of Mortgagee to secure the amount expended by
Mortgagee on account of or in connection with such Lien. Mortgagee shall be
subrogated, notwithstanding their release of record, to mortgages, trust deeds,
superior titles, vendor's Liens, Liens, charges, encumbrances, rights and
equities on the Mortgaged Property to the extent that any obligation under any
thereof is paid or discharged by Mortgagee.
SECTION 2.11. CERTAIN TAX LAW CHANGES. In the event of the passage
after the date of this Mortgage of any law deducting from the value of real
property, for the purpose of taxation, amounts in respect of any Lien thereon or
changing in any way the laws for the taxation of mortgages or debts secured by
mortgages for State or local purposes or the manner of the collection of any
such taxes, and imposing a tax, either directly or indirectly, on this Mortgage,
Mortgagor shall pay such tax within ten (10) days after knowledge of the same.
SECTION 2.12. FUTURE ADVANCES. All future advances and expenditures
under this Mortgage or under any other agreements at any time made between
Mortgagor or any other Obligated Party and Mortgagee shall have the same
priority as if such advance or expenditure was made on the date that this
Mortgage was recorded. This Mortgage shall secure all indebtedness of Mortgagor
and each other Obligated Party, and their respective successors and assigns,
under the Indenture, this Mortgage and the other Security Documents, whenever
incurred. Notice is hereby given that the Secured Obligations may also increase
as a result of any defaults hereunder by Mortgagor due to, for example, and
without limitation, unpaid interest or late charges, unpaid Impositions or
insurance premiums or other charges which Mortgagee elects to advance, defaults
under Leases that Mortgagee elects to cure, attorneys' fees or expenses incurred
in enforcing the Indenture or any of the Security Documents or other expenses.
Interest shall accrue and be payable on any future advances at the rate
specified in the Note from the date incurred or paid to the date repaid. SECTION
2.13. BRIDGE LOAN MORTGAGE.
(a) Mortgagor shall promptly notify Mortgagee in writing of the
occurrence of any default or event of default under the Bridge Loan Mortgage
and, in addition, shall deliver to Mortgagee, within one (1) Business Day after
receipt, a copy of any notice of default received by Mortgagor from the holder
of the Bridge Loan Mortgage.
(b) At all times while this Mortgage continues in effect, Mortgagor
shall not, without Mortgagee's prior written consent, increase the principal
amount secured by the Bridge Loan Mortgage or allow the amendment or
modification of the Bridge Loan Mortgage or of any document relating to the
loans secured by the Bridge Loan Mortgage.
ARTICLE III
SECURITY AGREEMENT AND FIXTURE FILING
SECTION 3.1. SECURITY AGREEMENT.
(a) GRANT OF SECURITY INTEREST. To the extent that the Mortgaged
Property includes Personal Property, this Mortgage shall also be construed as a
security agreement and the grant to Mortgagee of a security interest in such
Personal Property under the Uniform Commercial Code.
(b) REMEDIES. If an Event of Default shall occur, Mortgagee may
exercise from time to time and at any time any rights and remedies available to
it under applicable law upon default in the payment of indebtedness, including,
without limitation, any right or remedy available to it as a secured party under
the Uniform Commercial Code. Mortgagor shall, promptly upon request by
Mortgagee, assemble the Mortgaged Property, or any portion thereof generally
described in such request, and make the same available to Mortgagee at such
place or places designated by Mortgagee and reasonably convenient to Mortgagee
and Mortgagor. If Mortgagee elects to proceed under the Uniform Commercial Code
to dispose of all or any portion of the Mortgaged Property, Mortgagee, at its
option, may give Mortgagor notice of the time and place of any public sale of
any such property, or of the date after which any private sale or other
disposition thereof is to be made, by sending notice by registered or certified
first class mail, postage prepaid, to Mortgagor at least ten (10) days prior to
the time of the sale or other disposition. If any notice of any proposed sale,
assignment or transfer by Mortgagee of any portion of the Mortgaged Property or
any interest therein is required by law, Mortgagor conclusively agrees that,
unless any longer period shall then be required by the Uniform Commercial Code,
ten (10) days' notice to Mortgagor of the date, time and place (and, in the case
of a sale, the terms) thereof is reasonable. Mortgagee may, at its option,
appoint any other Person as the agent of Mortgagee for the purpose of
disposition of the Personal Property in accordance with the Uniform Commercial
Code. Mortgagor acknowledges and agrees that a disposition of the Personal
Property in accordance with Mortgagee's rights and remedies in respect of the
Personal Property as provided in this Section is a commercially reasonable
disposition thereof.
SECTION 3.2. FIXTURE FILING. To the extent that the Mortgaged Property
includes items of Personal Property that are or are to become fixtures under
applicable law, and to the extent permitted under applicable law, the filing of
this Mortgage in the land records of the county in which such Mortgaged Property
is located shall also operate from the time of filing as a fixture filing with
respect to such Mortgaged Property, the information required for the purpose of
such fixture filing being as set forth in this Mortgage. (Mortgagor being the
"Debtor" and Mortgagee being the "Secured Party" with respect to such filing.)
SECTION 3.3. SECURITY DEPOSIT COLLATERAL. So long as no Event of
Default shall have occurred, Mortgagor shall have the exclusive right, as
between Mortgagor and Mortgagee, to apply, draw, make demand, xxx for, or amend
any Security Deposit Collateral or waive or release any party from its
obligations under or in respect of any Security Deposit Collateral. If an Event
of Default shall occur, Mortgagee shall (at its option) have the exclusive
right, as between Mortgagor and Mortgagee, without notice to Mortgagor, to
apply, draw, make demand, xxx for, or amend any Security Deposit Collateral.
SECTION 3.4. REPRESENTATIONS, WARRANTIES AND COVENANTS. Mortgagor
hereby warrants, represents and covenants with respect to the Personal Property
as follows:
(a) NO REMOVAL OF PERSONAL PROPERTY. The Personal Property will be
kept on or at the Property and Mortgagor will not remove the Personal Property
from the Property without the prior written consent of Mortgagee, except such
portions or items of Personal Property which are consumed or worn out in
ordinary usage, which shall be promptly replaced with comparable items of equal
value.
(b) CHANGE OF NAME OR LOCATION. Mortgagor shall give at least thirty
(30) days' advance notice in writing to Mortgagee of any proposed change in
Mortgagor's name, identity, business form or structure or any proposed change in
the location of Mortgagor's chief executive office or principal place of
business or the locations where it keeps or holds any of the Mortgaged Property
or any records relating thereto, all of which are, as of the date hereof,
accurately and completely set forth either in the preamble of this Mortgage or
on EXHIBIT C hereto. Mortgagor will execute and deliver to Mortgagee, prior to
the occurrence of such change, all additional financing statements that
Mortgagee may require to establish and maintain the validity and priority of
Mortgagee's security interest with respect to any of the Mortgaged Property
described or referred to herein.
(c) ADDITIONAL FILINGS. Not more than six (6) months nor less than
thirty (30) days prior to each date on which Mortgagor proposes to take any
action contemplated by SECTION 3.4(B), Mortgagor shall, at its cost and expense,
cause to be delivered to Mortgagee one or more opinions of counsel, satisfactory
to Mortgagee, to the effect that all financing statements and amendments or
supplements thereto, continuation statements and other documents required to be
recorded or filed in order to perfect and protect the security interest granted
hereunder against all creditors of and purchasers from Mortgagor have been filed
in each filing office necessary for such purpose and that all filing and
recording fees and taxes, if any, payable in connection with such filings have
been paid in full.
(d) OPINION OF COUNSEL. Not more than six (6) months nor less than
thirty (30) days prior to each date on which the filing or recordation of any
continuation statement or other document is required to be made in order to
continue, without interruption, the perfection of the security interests
hereunder against all creditors of and purchasers from Mortgagor, Mortgagor
shall, at its cost and expense, cause to be delivered to Mortgagee one or more
opinions of counsel, satisfactory to Mortgagee, to the effect that all such
continuation statements and other documents have been filed in each filing
office necessary for such purpose and that all filing and recording fees and
taxes, if any, payable in connection with such filings have been paid in full.
(e) ATTORNEY-IN-FACT. Mortgagor hereby irrevocably appoints Mortgagee,
and its successors and assigns so long as the Secured Obligations remain
outstanding, as Mortgagor's attorney-in-fact with full power and authority for
and on behalf of Mortgagor to execute, file and record any and all documents
necessary to evidence, perfect and continue the Lien and security interest of
this Mortgage, and agrees that such documents may, to the extent permitted under
applicable law, be filed without the signature of Mortgagor. The foregoing
appointment is coupled with an interest and is irrevocable by Mortgagor without
the consent of Mortgagee.
(f) ADDITIONAL COVENANTS. All other covenants and obligations of
Mortgagor contained elsewhere in this Mortgage relating to the Mortgaged
Property shall be deemed to apply to the Personal Property whether or not
expressly referred to in this Article.
ARTICLE IV
ASSIGNMENT OF RENTS AND LEASES
SECTION 4.1. ASSIGNMENT OF RENTS AND LEASES.
(a) ASSIGNMENT OF RENTS. Mortgagor hereby presently, absolutely and
irrevocably assigns to Mortgagee subject to the license of Mortgagor under
subsection (b) of this Section, all Leases and Rents, if any, and Mortgagee and,
if a Receiver has been appointed under this Mortgage, such Receiver shall have
the absolute, immediate and continuing right, subject to mandatory provisions of
applicable law, to collect and receive all Rents now or hereafter, including
during any period of redemption, accruing with respect to the Mortgaged
Property. The Lien on the Leases and the Rents made under Granting Clause H
hereof shall be in addition to and subject to the foregoing assignment. At the
request of Mortgagee or such Receiver, Mortgagor shall promptly execute,
acknowledge, deliver, record, register and file any additional general
assignment of the Leases or specific assignment of any Lease which Mortgagee or
such Receiver may require from time to time (all in form and substance
satisfactory to Mortgagee and such Receiver) to effectuate, complete, perfect,
continue or preserve this assignment of the Leases and the Rents and the Lien
upon the Leases and the Rents made under Granting Clause H.
(b) LICENSE TO COLLECT RENTS. As long as no Event of Default has
occurred, Mortgagor shall have the right under a license granted hereby, subject
to subsection (c) of this Section, to collect the Rents upon the due date
thereof, but not prior to such due date.
(c) TERMINATION OF LICENSE UPON EVENT OF DEFAULT. If an Event of
Default shall occur, the license granted under subsection (b) of this Section
shall immediately and automatically terminate, without the necessity of any
action by any Person, and Mortgagee and any Receiver appointed under this
Mortgage shall have the right to exercise the rights and remedies provided under
this Mortgage or otherwise under applicable law. If an Event of Default shall
occur, upon demand by the Person exercising the rights under this Section,
Mortgagor shall promptly pay to such Person all security deposits under the
Leases and all Rents allocable to any period after the occurrence of such Event
of Default. Subject to any applicable Legal Requirement, any Rents received
hereunder by the Person exercising the rights under this Section shall be
promptly paid to Mortgagee, and any Rents received hereunder by Mortgagee shall
be applied and disbursed as provided in the Indenture, subject to the
Intercreditor Agreement; PROVIDED that, subject to any applicable requirement of
law, any security deposits actually received by Mortgagee shall be held, applied
and disbursed as provided in the applicable Leases.
(d) DIRECTION TO TENANTS. Upon the occurrence of an Event of Default,
Mortgagor hereby authorizes and directs, and shall, at the direction of
Mortgagee, further authorize and direct, in writing, the tenant under each Lease
to pay directly to, or as directed by, Mortgagee all Rents accruing or due under
its Lease without proof to the tenant of the occurrence and continuance of such
Event of Default. Mortgagor hereby authorizes the tenant under each Lease to
rely upon and comply with any notice or demand from Mortgagee for payment of
Rents to Mortgagee and Mortgagor shall have no claim against any tenant for
Rents paid by such tenant to Mortgagee pursuant to such notice or demand.
(e) NO RELEASE OF TENANTS. Neither this Mortgage nor any action or
inaction on the part of Mortgagee shall release any tenant under any Lease, any
guarantor of any Lease or Mortgagor from any of their respective obligations
under the Leases or constitute an assumption of any such obligation on the part
of Mortgagee. No action or failure to act on the part of Mortgagor shall
adversely affect or limit the rights of Mortgagee under this Mortgage or,
through this Mortgage, under the Leases.
(f) NO LIABILITY OF MORTGAGEE. Neither the acceptance hereof nor the
exercise of the rights and remedies hereunder nor any other action on the part
of Mortgagee or any Person exercising the rights of Mortgagee hereunder shall be
construed to (i) be an assumption by Mortgagee or any such Person or to
otherwise make Mortgagee or such Person liable or responsible for the
performance of any of the obligations of Mortgagor under or with respect to the
Leases or for any Rent, security deposit or other amount delivered to Mortgagor;
PROVIDED that Mortgagee or any such Person exercising the rights of Mortgagee
shall be accountable as provided in subsection (c) of this Section for any
Rents, security deposits or other amounts actually received by Mortgagee or such
Person, as the case may be; or (ii) obligate Mortgagee or any such Person to
take any action under or with respect to the Leases or with respect to the
Mortgaged 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 Mortgaged
Property, to appear in or defend any action or proceeding relating to the Leases
or the Mortgaged Property, to constitute Mortgagee as a mortgagee-in-possession
(unless Mortgagee actually enters and takes possession of the Mortgaged
Property), or to be liable in any way for any injury or damage to persons or
property sustained by any Person in or about the Mortgaged Property, other than
to the extent caused by the willful misconduct or gross negligence of Mortgagee
or any Person exercising the rights of Mortgagee hereunder.
(g) NO EXISTING LEASES. Mortgagor represents and warrants that as of
the date hereof, no Leases exist with respect to the Mortgaged Property.
ARTICLE V
ASSIGNMENT OF MATERIAL AGREEMENTS
SECTION 5.1. ASSIGNMENT OF MATERIAL AGREEMENTS.
(a) ASSIGNMENT OF MATERIAL AGREEMENTS AND OTHER PAYMENTS. Mortgagor
hereby presently, absolutely and irrevocably assigns to Mortgagee subject to the
license of Mortgagor under subsection (b) of this Section, all Material
Agreements and all rents, income, profits, issues, royalties, revenues and other
benefits derived from or with respect to the Material Agreements, if any ("OTHER
PAYMENTS"), and Mortgagee and, if a Receiver has been appointed under this
Mortgage, such Receiver shall have the absolute, immediate and continuing right,
subject to mandatory provisions of applicable law, to collect and receive all
Other Payments now or hereafter, including during any period of redemption,
accruing with respect to the Mortgaged Property. The Lien on the Material
Agreements and the Other Payments made under Granting Clause G hereof shall be
in addition to and subject to the foregoing assignment. At the request of
Mortgagee or such Receiver, Mortgagor shall promptly execute, acknowledge,
deliver, record, register and file any additional general assignment of the
Material Agreements or specific assignment of any Material Agreement which
Mortgagee or such Receiver may require from time to time (all in form and
substance satisfactory to Mortgagee and such Receiver) to effectuate, complete,
perfect, continue or preserve this assignment of the Material Agreements and the
Other Payments and the Lien upon the Material Agreements and the Other Payments
made under Granting Clause G.
(b) LICENSE TO COLLECT PAYMENTS. As long as no Event of Default has
occurred, Mortgagor shall have the right under a license granted hereby, subject
to subsection (c) of this Section, to collect the Other Payments, if any, upon
the due date thereof, but not prior to such due date.
(c) TERMINATION OF LICENSE UPON EVENT OF DEFAULT. If an Event of
Default shall occur, the license granted under subsection (b) of this Section
shall immediately and automatically terminate, without the necessity of any
action by any Person, and Mortgagee and any Receiver appointed under this
Mortgage shall have the right to exercise the rights and remedies provided under
this Mortgage or otherwise under applicable law. If an Event of Default shall
occur, upon demand by the Person exercising the rights under this Section,
Mortgagor shall promptly pay to such Person all deposits under the Material
Agreements and all Other Payments allocable to any period after the occurrence
of such Event of Default. Subject to any applicable Legal Requirement, any Other
Payments received hereunder by the Person exercising the rights under this
Section shall be promptly paid to Mortgagee, and any Other Payments received
hereunder by Mortgagee shall be applied and disbursed as provided in the
Indenture, subject to the Intercreditor Agreement.
(d) DIRECTION TO CONTRACT PARTIES. Upon the occurrence of an Event of
Default, Mortgagor hereby authorizes and directs, and shall, at the direction of
Mortgagee, further authorize and direct, in writing, each party under a Material
Agreement to pay any Other Payments owing to Mortgagor directly to, or as
directed by, Mortgagee without proof to such party of the occurrence and
continuance of such Event of Default. Mortgagor hereby authorizes the parties
under each Material Agreement to rely upon and comply with any notice or demand
from Mortgagee for payment of Other Payments to Mortgagee and Mortgagor shall
have no claim against any such party for Other Payments paid by such party to
Mortgagee pursuant to such notice or demand.
(e) NO RELEASE OF CONTRACT PARTIES. Neither this Mortgage nor any
action or inaction on the part of Mortgagee shall release any party under any
Material Agreement, any guarantor of any Material Agreement or Mortgagor from
any of their respective obligations under the Material Agreements or constitute
an assumption of any such obligation on the part of Mortgagee. No action or
failure to act on the part of Mortgagor shall adversely affect or limit the
rights of Mortgagee under this Mortgage or, through this Mortgage, under the
Material Agreements.
(f) NO LIABILITY OF MORTGAGEE. Neither the acceptance hereof nor the
exercise of the rights and remedies hereunder nor any other action on the part
of Mortgagee or any Person exercising the rights of Mortgagee hereunder shall be
construed to (i) be an assumption by Mortgagee or any such Person or to
otherwise make Mortgagee or such Person liable or responsible for the
performance of any of the obligations of Mortgagor under or with respect to the
Material Agreements or for any Other Payment, deposit or other amount delivered
to Mortgagor; or (ii) obligate Mortgagee or any such Person to take any action
under or with respect to the Material Agreements or with respect to the
Mortgaged Property, to incur any expense or perform or discharge any duty or
obligation under or with respect to the Material Agreements or with respect to
the Mortgaged Property, to appear in or defend any action or proceeding relating
to the Material Agreements or the Mortgaged Property, to constitute Mortgagee as
a mortgagee-in-possession (unless Mortgagee actually enters and takes possession
of the Mortgaged Property), or to be liable in any way for any injury or damage
to persons or property sustained by any Person in or about the Mortgaged
Property, other than to the extent caused by the willful misconduct or gross
negligence of Mortgagee or any Person exercising the rights of Mortgagee
hereunder.
(g) EXISTING MATERIAL AGREEMENTS. Mortgagor represents and warrants
that as of the date hereof, only the following Material Agreements exist with
respect to the Mortgaged Property: the Retail Unit Contract of Sale, the
Declaration, the Zoning Lot Agreement, the Master Agreement, the Improvements
Agreement, the License Agreement, and the Planet Hollywood Plans.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT. "EVENT OF DEFAULT" as used herein
shall have the meaning set forth in the Indenture.
SECTION 6.2. REMEDIES.
(a) IN GENERAL. If an Event of Default shall occur, Mortgagee, with or
without entry onto the Property, shall have the following rights:
(i) to immediately foreclose this Mortgage and the lien
hereof;
(ii) to sell Mortgagor's right, title and interest in and to
the Mortgaged Property, as a whole or in separate parcels, at one or
more public sales, at such time and place and upon such terms and
conditions as may be required or permitted by applicable law. Such
power shall not be exhausted until the Secured Obligations have been
paid in full. Mortgagee may execute and deliver to the purchaser or
purchasers at any sale a sufficient conveyance of the Mortgaged
Property sold thereby divesting Mortgagor of all right, title or
interest that it may have in and to such Mortgaged Property and
vesting the same in the purchaser or purchasers at such sale or sales,
free of the security interest and lien of this Mortgage and free of
all rights of redemption in Mortgagor;
(iii) to take such steps to protect and enforce its rights
and the lien of this Mortgage, whether by action, suit or proceeding
in equity or at law for the specific performance of any provision in
the Indenture or the Security Documents, or in aid of the execution of
any power granted in this Mortgage, or for any foreclosure hereunder,
or for the enforcement of any other appropriate legal or equitable
remedy Mortgagee shall elect;
(iv) to apply for the appointment of a Receiver for the
Mortgaged Property in accordance with SECTION 6.4; and
(v) to take all such other steps and to assert and exercise
all such other rights and remedies, including power of sale, as shall
be permitted by applicable law.
(b) FORECLOSURE. This Mortgage may be foreclosed once against all or
successively against any part or parts of the Mortgaged Property as Mortgagee
may elect. This Mortgage and the right of foreclosure hereunder shall not be
impaired or exhausted by one or any foreclosure or by one or any sale, and may
be foreclosed successively and in parts, until all of the Mortgaged Property has
been foreclosed against and sold. The purchase money proceeds or avails of any
foreclosure or sale after default and any other sums which then may be held by
Mortgagee under this Mortgage shall be applied as provided in the Indenture,
subject to the Intercreditor Agreement.
(c) MORTGAGEE MAY BID. In connection with any such foreclosure or
sale, Mortgagee may bid for and acquire Mortgagor's interest in the Mortgaged
Property or any part thereof and in lieu of paying cash therefor, may make
settlement for the purchase price by crediting upon the Secured Obligations the
net sales price received therefor, after deducting all unpaid costs and expenses
paid or incurred by any Mortgagee under or in connection with this Mortgage.
Mortgagee may adjourn from time to time any sale by it to be made under or by
virtue of this Mortgage by announcement at the time and place appointed for such
sale or for such adjourned sale or sales, and, Mortgagee, without further notice
or publication, may make such sale at the time and place to which the same shall
be so adjourned.
(d) ACCELERATION OF SECURED OBLIGATIONS. In the event of any sale made
under or by virtue of this Article, the entire principal of, interest and other
amounts in respect of the Secured Obligations, if not previously due and
payable, shall, at the option of Mortgagee, immediately become due and payable,
anything in this Mortgage to the contrary notwithstanding.
SECTION 6.3. POSSESSION OF PROPERTY.
(a) MORTGAGOR TO VACATE MORTGAGED PROPERTY. Mortgagor hereby waives,
if an Event of Default shall occur, all right to the possession, income and
Rents and Other Payments of the Mortgaged Property, and Mortgagor hereby
expressly authorizes and empowers Mortgagee, upon such occurrence and
continuation, for the purpose of protecting and preserving the Mortgaged
Property and the interest of Mortgagee therein, and to the extent permitted by
law, (i) to enter upon and take possession of the Mortgaged Property, to remove
and exclude Mortgagor and its agents and servants wholly therefrom, by summary
proceeding, ejectment or otherwise, and to take possession of all books, records
and accounts relating thereto, and Mortgagor agrees to surrender possession of
the Mortgaged Property and of such books, records and accounts to Mortgagee on
demand, and (ii) with or without the entry upon or taking possession of the
Mortgaged Property, to hold, operate, manage, repair and maintain the Mortgaged
Property and to collect and receive all earnings, revenues, Rents, Other
Payments, issues, profits, income and cash collateral derived from the Mortgaged
Property, and after deducting therefrom all reasonable costs, expenses and
liabilities (including reasonable attorneys' fees and expenses) incurred by
Mortgagee in collecting the same and in using, managing, preserving and
controlling the Mortgaged Property for the purpose of protecting and preserving
the Mortgaged Property and the interest of Mortgagee therein, and otherwise in
exercising Mortgagee's rights hereunder and under the Material Agreements,
including all amounts necessary to pay Impositions, Retail Unit Charges and
other reasonable charges in connection with the Mortgaged Property, as well as
reasonable compensation for Mortgagee's agents and employees, and to apply the
remainder as set forth in SECTION 6.9. Without limiting any other right or
remedy of Mortgagee pursuant to any other provision of this Mortgage or the
Indenture, upon or at any time after the filing of a suit to foreclose this
Mortgage, the court in which such suit is filed shall have full power to enter
an order placing Mortgagee in possession of the Mortgaged Property with the same
power granted to a Receiver pursuant to the applicable Sections of this Mortgage
and with all other rights and privileges of a mortgagee-in-possession under
applicable State law. All such costs, expenses and liabilities incurred by
Mortgagee shall be Secured Obligations.
(b) PAYMENT FOR USE AND OCCUPANCY. Following an Event of Default and
pending the exercise by Mortgagee of its right to exclude Mortgagor from all or
any part of the Mortgaged Property, Mortgagor agrees to pay the fair and
reasonable rental value for the use and occupancy of the Mortgaged Property or
any portion thereof that is being occupied by Mortgagor for such period and,
upon default of any such payment, shall vacate and surrender possession thereof
to Mortgagee or to a Receiver, if any, and in default thereof may be evicted by
any summary action or proceeding for the recovery of possession of such portion
of the Mortgaged Property for nonpayment of rent, however designated.
SECTION 6.4. APPOINTMENT OF RECEIVER. If an Event of Default shall
occur, Mortgagee shall, as a matter of right and without regard to the adequacy
or value of any security for the Secured Obligations or the solvency of
Mortgagor, or the occupancy of the Mortgaged Property or any part thereof as a
homestead, and without the requirement of any bond, be entitled to the
appointment of a Receiver for all or any part of the Mortgaged Property and all
Rents or Other Payments therefrom (the inclusion in this Mortgage of the
provisions for the appointment of a Receiver and the assignment of Rents and
Other Payments being an express condition upon which Mortgagee agreed to execute
the Indenture and to accept this Mortgage), whether or not such receivership is
incidental to a proposed sale of the Mortgaged Property or otherwise, and
Mortgagor hereby consents to the appointment of such a Receiver and will not
oppose any such appointment.
SECTION 6.5. WAIVER OF STAY, EXTENSION, MORATORIUM AND MARSHALLING
LAWS AND EQUITY OF REDEMPTION. To the maximum extent permitted by law, Mortgagor
shall not at any time insist upon, or plead, or in any manner whatever claim or
take any benefit or advantage of any applicable present or future stay,
extension or moratorium law which may affect observance or performance of the
provisions of this Mortgage; nor claim, take or insist upon any benefit or
advantage of any present or future law providing for the valuation or appraisal
of, or rights of marshalling with respect to, the Mortgaged Property or any
portion thereof prior to or in connection with any sale or sales thereof which
may be made under or by virtue of this Mortgage; and Mortgagor, to the extent
that it lawfully may, hereby waives all benefit or advantage of any such law or
laws. Mortgagor, for itself and all who may claim under it, hereby waives, to
the maximum extent permitted by applicable law, any and all rights and equities
of redemption from sale under the power of sale created hereunder or from sale
under any order or decree of foreclosure of this Mortgage and (if an Event of
Default shall occur) all notice or notices of seizure, and all right to have the
Mortgaged Property marshalled upon any foreclosure hereof. Mortgagee shall not
be obligated to pursue or exhaust its rights or remedies as against any other
part of the Mortgaged Property and Mortgagor hereby waives any right or claim of
right to have Mortgagee proceed against any portion of the Mortgaged Property in
any particular order.
SECTION 6.6. MORTGAGEE AUTHORIZED TO EXECUTE DOCUMENTS. Mortgagor
irrevocably appoints Mortgagee the true and lawful attorney-in-fact of Mortgagor
(which appointment is coupled with an interest and shall be irrevocable), in its
name and stead and on its behalf, for the purpose of effectuating any sale,
assignment, transfer or delivery for the enforcement hereof, whether pursuant to
power of sale, foreclosure or otherwise, to execute and deliver all deeds, bills
of sale, assignments, releases and other instruments as Mortgagee may consider
necessary or appropriate, with full power of substitution, Mortgagor hereby
ratifying and confirming all that its said attorney or any substitute shall
lawfully do by virtue hereof. Nevertheless, if so requested by Mortgagee or any
purchaser, Mortgagor will immediately ratify and confirm, without any cost or
charge therefor, any such sale, assignment, transfer or delivery by executing
and delivering to the grantee or such purchaser all such proper deeds, bills of
sale, assignments, releases and other instruments as may be designated in any
such request.
SECTION 6.7. COLLATERAL SITUATED IN MORE THAN ONE COUNTY. If the
Mortgaged Property or any other Collateral is situated in two or more counties
in the State, or in two judicial districts of the same county, Mortgagee shall
have the full power to select in which county or counties, or in which judicial
district or districts, the sale of the Mortgaged Property is to be made, and
Mortgagee's selection shall be binding upon Mortgagor and shall permit the sale
of the whole to be made in any of the counties or judicial districts in which
part of the Mortgaged Property is located. Mortgagor hereby waives any right it
might otherwise have or assert to object to foreclosure, through the use of a
single Mortgage, upon all of the Mortgaged Property in the State.
SECTION 6.8. COLLATERAL IN OTHER STATES. Mortgagor acknowledges and
agrees that the Mortgaged Property and other Collateral may be located in more
than one state, and Mortgagor therefore waives and relinquishes any and all
rights it may have, whether at law or equity, to require Mortgagee to proceed to
enforce or exercise any rights, powers and remedies that Mortgagee or any
trustee may have under this Mortgage, the Indenture and any other Security
Document in any particular manner, in any particular order, or in any particular
state or other jurisdiction. Without limiting the generality of the foregoing,
(a) Mortgagee shall not be precluded from or restricted in exercising any of its
rights and remedies hereunder due to the prior or concurrent exercise by
Mortgagee or any trustee of any of its rights and remedies under the Indenture
or any other Security Document, (b) neither Mortgagee nor any trustee shall be
precluded from or restricted in exercising any of its rights and remedies under
the Indenture or any other Security Document due to the prior or concurrent
exercise by Mortgagee of any of its rights and remedies hereunder, and (c)
neither Mortgagee nor any trustee shall be required to exercise or enforce any
of its rights and remedies under any other Security Document before or
concurrently with the exercise by Mortgagee of any of its rights and remedies
hereunder. Mortgagor further agrees that any particular proceeding, including
foreclosure through court action (in a state or federal court) or power of sale,
may be brought and prosecuted in the local or federal courts of any one or more
of the states in which any of the Mortgaged Property and any other Collateral
may be located, without regard to the fact that any one or more prior or
contemporaneous proceedings have been instituted elsewhere with respect to the
same or any other portion of the Mortgaged Property or any other Collateral.
SECTION 6.9. APPLICATION OF PROCEEDS. Following the occurrence of an
Event of Default, any proceeds of any of the Mortgaged Property shall be applied
as follows:
FIRST, to the fees, costs and expenses of Mortgagee payable
pursuant to this Mortgage,
SECOND, to the payment of all other Secured Obligations,
other than principal and interest,
THIRD, to interest accrued and unpaid on the Secured
Obligations and the satisfaction of the principal amount of the
Secured Obligations, as provided in the Indenture, and
FOURTH, the remainder, if any, to Mortgagor or such other
Person as may be entitled thereto by law.
Mortgagor shall remain liable for any deficiency remaining.
SECTION 6.10. SETOFF. To the extent permitted by applicable law, if an
Event of Default occurs, any and all deposits (including all account balances,
whether provisional or final and whether or not collected or available) and any
other property at any time held or owing by Mortgagee to or for the credit or
account of Mortgagor (except accounts with respect to which Mortgagor is a
trustee or an escrow agent in respect of bona fide third parties), may be offset
and applied toward the payment of the Secured Obligations owing to Mortgagee,
whether or not the Secured Obligations, or any part thereof, shall then be due.
SECTION 6.11. RECEIPT A SUFFICIENT DISCHARGE TO PURCHASER. Upon any
sale of the Mortgaged Property or any part thereof or any interest therein,
whether pursuant to power of sale, foreclosure or otherwise, the receipt by
Mortgagee or the officer making the sale under judicial proceedings of the
purchase money therefor shall be a sufficient discharge to the purchaser for
such purchase money, and such purchaser shall not be obligated to see to the
application thereof.
SECTION 6.12. SALE A BAR AGAINST MORTGAGOR. Any sale of the Mortgaged
Property or any part thereof or any interest therein under or by virtue of this
Mortgage, whether pursuant to power of sale, foreclosure or otherwise, shall
forever be a bar against Mortgagor.
SECTION 6.13. REMEDIES CUMULATIVE; WAIVER. No remedy or right of
Mortgagee hereunder, under the Indenture, or any other Security Document or
otherwise, or available under applicable law, shall be exclusive of any other
right or remedy, but each such remedy or right shall be in addition to every
other remedy or right now or hereafter existing at law or in equity under any
such document or under applicable law. No delay in the exercise of, or omission
to exercise, any remedy or right accruing on any Potential Default or Event of
Default shall impair any such remedy or right or be construed to be a waiver of
any such Potential Default or Event of Default or an acquiescence therein, nor
shall it affect any subsequent Potential Default or Event of Default of the same
or a different nature. Every such remedy or right may be exercised concurrently
or independently, and when and as often as may be deemed proper by Mortgagee.
All obligations of Mortgagor, and all rights, powers and remedies of Mortgagee
expressed herein, shall be in addition to, and not in limitation of, those
provided by law or in the Indenture, any other Security Document or any other
written instrument relating to any of the Secured Obligations or any security
therefor. Any and all covenants of Mortgagor in this Mortgage may from time to
time, by instrument in writing signed by Mortgagee, be waived to such extent and
in such manner as Mortgagee may desire, but no such waiver will ever affect or
impair the rights of Mortgagee hereunder, except to the extent specifically
stated in such written instrument.
SECTION 6.14. NO LIABILITY OF MORTGAGEE. Notwithstanding anything
contained in this Mortgage, this Mortgage is only intended as security for the
Secured Obligations and Mortgagee shall not be obligated to perform or
discharge, and do not hereby undertake to perform or discharge, any obligation,
duty or liability of Mortgagor with respect to any of the Mortgaged Property.
Unless and until Mortgagee takes actual possession of the Mortgaged Property,
either through foreclosure, the taking of a deed in lieu thereof or otherwise,
Mortgagee shall not have responsibility for the control, care, management or
repair of the Mortgaged Property nor shall Mortgagee be responsible or liable
for any negligence in the management, operation, upkeep, repair or control of
the Mortgaged Property resulting in loss or injury or death to any licensee,
employee, tenant or stranger or other Person. Mortgagor shall indemnify and hold
harmless Mortgagee from and against any and all Losses incurred by Mortgagee in
connection with any of the foregoing which are not the responsibility of
Mortgagee in accordance with this Section.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. TERMINATION; DEFEASANCE.
(a) TERMINATION. Upon satisfaction of the applicable conditions of
Article 10 of the Indenture, this Mortgage and the liens and security interests
created hereby shall terminate upon the earlier of the following dates:
(i) the date on which the Secured Obligations due and to
become due shall have been paid or performed in full and such payments
are no longer subject to recoupment or avoidance upon any insolvency
or bankruptcy of Mortgagor; and
(ii) the date on which (A) the closing of the sale of the
Mortgaged Property under the Retail Unit Contract of Sale shall have
occurred, (B) the purchaser under the Retail Unit Contract of Sale
shall have complied with all of its obligations under the Retail Unit
Contract of Sale in connection with such closing (except to the extent
waived by the holder of the Bridge Loan Mortgage), (C) the net
proceeds of such sale have been delivered to the party entitled
thereto under the Intercreditor Agreement, and (D) the holder of the
Bridge Loan Mortgage has released, or have delivered reasonable
evidence to Mortgagee that they are unconditionally prepared to
release, the Bridge Loan of record.
Upon such termination, Mortgagee shall execute and deliver to Mortgagor an
appropriate release and such other documents reasonably required by Mortgagor,
and shall turn over to Mortgagor any of the Mortgaged Property and any other
files, documents or material held by Mortgagee.
(b) SALE OF UPPER FLOORS. If (i) a closing of a sale of only the Upper
Floors shall have occurred pursuant to Section 9.2 of the Retail Unit Contract
of Sale, (ii) the purchaser under the Retail Unit Contract of Sale shall have
complied with all of its obligations under the Retail Unit Contract of Sale in
connection with such closing (except to the extent waived by the holder of the
Bridge Loan Mortgage), (iii) the net proceeds of such sale shall have been
delivered to the party entitled thereto under the Intercreditor Agreement, and
(iv) the holder of the Bridge Loan Mortgage has partially released, or have
delivered reasonable evidence to Mortgagee that they are unconditionally
prepared to partially release, the Bridge Loan Mortgage of record with respect
to the Upper Floors, then, in such event, Mortgagee shall execute and deliver to
Mortgagor an appropriate partial release of this Mortgage upon satisfaction of
the applicable conditions of Article 10 of the Indenture solely with respect to
the Upper Floors.
(c) MORTGAGOR TO PAY COSTS. In any of such events, Mortgagor shall pay
Mortgagee's expenses (including, without limitation, attorney's fees and
expenses) in connection with the termination or partial release hereof and any
transfer of such property.
SECTION 7.2. RIGHTS CUMULATIVE; WAIVERS. To the fullest extent
permitted by law, the rights and remedies of Mortgagee under this Mortgage and
the other Security Documents shall be cumulative. The exercise, failure to
exercise or delay in exercising any right or remedy by Mortgagee shall not
prevent any of them from exercising any other right or remedy or exercising such
right or remedy at a later time.
SECTION 7.3. FEES AND EXPENSES. In addition to any fees and expenses
payable pursuant to the Indenture, Mortgagor shall pay upon demand all fees and
expenses (including reasonable attorney's fees and expenses) incurred by
Mortgagee in connection with the negotiation, execution, production and delivery
of this Mortgage and any other documents executed and delivered in connection
herewith, or in connection with (a) the administration of this Mortgage and any
amendment or modification hereof, (b) the custody or preservation of, or the
sale of, collection from, or other realization upon, any of the Mortgaged
Property, (c) the failure by Mortgagor to perform or observe any of the
provisions hereof, or (d) the exercise or enforcement of any of the rights of,
and collection of amounts due to, Mortgagee hereunder.
SECTION 7.4. INDEMNIFICATION.
(a) INDEMNITY. Mortgagor shall protect, indemnify and hold harmless
Mortgagee and each of its Indemnified Parties from and against all Losses
imposed upon or incurred by or asserted against Mortgagee or Indemnified Party
by reason of: (i) any accident, injury or death of persons or loss of or damage
to property occurring on or about the Mortgaged Property or any part thereof;
(ii) any use or non-use of the Mortgaged Property or any part thereof; (iii) any
failure on the part of Mortgagor to perform or comply with any of the terms of
this Mortgage; (iv) the performance of any labor or services or the furnishing
of any materials or other property in respect of the Mortgaged Property or any
part thereof; (v) any negligent or tortious act or omission on the part of
Mortgagor or any of its agents, employees, contractors, licensees, lessees or
invitees; (vi) any contest of any Legal Requirement, Imposition or other matter;
or (vii) any other matter or thing arising from or attributable to Mortgagor's
interest in the Mortgaged Property and/or receipt of any income therefrom, other
than, in the case of Losses arising prior to the occurrence of an Event of
Default or any Potential Default, Losses that result from Mortgagee's gross
negligence or willful misconduct, as determined by a court of competent
jurisdiction. If any action, suit or proceeding is brought against Mortgagee or
any Indemnified Party by reason of any such occurrence, Mortgagor, upon such
Person's request, will at Mortgagor's expense resist and defend such action,
suit or proceeding or will cause the same to be resisted and defended by counsel
for the insurer of the liability or by counsel approved by such Person. Any
amounts payable to Mortgagee or any Indemnified Party pursuant to the indemnity
contained in this Section shall bear interest at the rate specified in the Notes
from and including the date(s) such amounts were expended by such Person to the
date of payment by Mortgagor; and all such amounts, together with all such
interest, shall be deemed part of the Secured Obligations secured by this
Mortgage. The indemnity set forth in this Section shall survive the repayment in
full of the Secured Obligations and the release of any and all Liens of
Mortgagee, the transfer of any and all right, title and interest in and to the
Mortgaged Property, or any part thereof, to any Person and the satisfaction of
the Secured Obligations.
(b) THIRD-PARTY BENEFICIARIES. Each Indemnified Party shall be a
third-party beneficiary hereof and shall be entitled to, and to enforce, all of
the rights, benefits and protections afforded herein to an Indemnified Party, as
if such Indemnified Party were a party hereto.
SECTION 7.5. NOTICES. All notices and other communications provided to
any party in connection with this Mortgage shall be given and effective as
provided in the Indenture. Any party may change its address for service of
notice upon it by a notice in writing to the other parties.
SECTION 7.6. AMENDMENT AND WAIVER. Except as otherwise provided
herein, this Mortgage may be amended, and observance of any term of this
Mortgage may be waived, with (and only with) the written consent of Mortgagor
and Mortgagee.
SECTION 7.7. EXPENSES OF MORTGAGOR'S AGREEMENTS AND DUTIES. The terms,
conditions, covenants and agreements to be observed or performed by Mortgagor
under this Mortgage shall be observed or performed by it at its sole cost and
expense.
SECTION 7.8. MORTGAGEE'S RIGHT TO PERFORM ON MORTGAGOR'S BEHALF. If
Mortgagor shall fail to observe or perform any of the terms, conditions,
covenants and agreements to be observed or performed by it under this Mortgage,
Mortgagee may (but shall not be obligated to) do the same or cause it to be done
or performed or observed, either in its name or in the name and on behalf of
Mortgagor, and Mortgagor hereby authorizes Mortgagee so to do.
SECTION 7.9. MORTGAGEE'S RIGHT TO USE AGENTS AND TO ACT IN NAME OF
MORTGAGOR. Mortgagee may exercise its rights and remedies under this Mortgage
through an agent or other designee and, in the exercise thereof, Mortgagee or
any such other Person may act in its own name or in the name and on behalf of
Mortgagor.
SECTION 7.10. NO COMPENSATION OR EXPENSE. Mortgagee may exercise its
rights and remedies under this Mortgage (a) without payment of any rent, license
fee or compensation of any kind to Mortgagor and (b) for the account, and at the
expense, of Mortgagor.
SECTION 7.11. LIMITATION OF OBLIGATIONS WITH RESPECT TO MORTGAGED
PROPERTY.
(a) REASONABLE CARE. Mortgagee shall have any duty or liability to
protect or preserve any Mortgaged Property or to preserve rights pertaining
thereto other than the duty to use reasonable care in the custody and
preservation of any Mortgaged Property in its actual possession. Mortgagee shall
be deemed to have exercised reasonable care in the custody and preservation of
any Mortgaged Property in its possession if such Mortgaged Property is accorded
treatment substantially equal to that which Mortgagee accords its own like
property. Mortgagee shall be relieved of all responsibility for any Mortgaged
Property in its possession upon surrendering it, or tendering surrender of it,
to Mortgagor or to such other Person entitle thereto by law.
(b) NO OBLIGATIONS. Nothing contained in this Mortgage shall be
construed as requiring or obligating Mortgagee, and Mortgagee shall not be
required, or obligated, to (i) make any demand, or to make any inquiry as to the
nature or sufficiency of any payment received by it, or to present or file any
claim or notice or take any action, with respect to any Mortgaged Property or
the monies due or to become due thereunder or in connection therewith, (ii)
ascertain or take action with respect to calls, conversions, exchanges,
maturities, tenders, offers or other matters relating to any Mortgaged Property,
whether or not Mortgagee has or is deemed to have knowledge or notice thereof,
(iii) take any necessary steps to preserve rights against any prior parties with
respect to any Mortgaged Property, or (iv) notify Mortgagor or any other Person
of any decline in the value of any Mortgaged Property.
SECTION 7.12. TIME OF THE ESSENCE. Time is of the essence with respect
to the various obligations of Mortgagor and rights and remedies of Mortgagee
under this Mortgage.
SECTION 7.13. DISCLOSURES. Mortgagee may disclose to, and exchange and
discuss with, any other Person (Mortgagee and each such other Person being
hereby irrevocably authorized to do so) any information concerning the Mortgaged
Property or Mortgagor (whether received by Mortgagee or such other Person in
connection with or pursuant to the Indenture, the Security Documents or
otherwise) for the purpose of (a) complying with applicable Legal Requirements
(including, without limitation, any court order, subpoena or other legal
process), (b) protecting or preserving the Mortgaged Property, (c) protecting,
preserving, exercising or enforcing any of its rights in, under or related to
the Mortgaged Property, the Indenture or the Security Documents, (d) performing
any of its obligations under or related to the Indenture and the Security
Documents, (e) consulting with attorneys, accountants or regulators with respect
to any of the foregoing matters, or (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any participant
in or assignee of, or prospective participant in or assignee of, any of the
Secured Obligations.
SECTION 7.14. INCONSISTENCY WITH INDENTURE.
(a) INDENTURE. In the event of any express conflict between the terms
of this Mortgage and the terms of the Indenture with respect to the Mortgaged
Property, the terms of the Indenture shall govern and control.
(b) SECURITY DOCUMENTS. Mortgagor and Mortgagee are parties to one or
more Security Documents. If any term or provision hereof with respect to any
Mortgaged Property hereunder which is Personal Property and which is the subject
of and covered by a Security Document is inconsistent with any term or provision
of such Security Document, then such term or provision of this Mortgage shall
govern and control with respect to such Personal Property to the extent of such
inconsistency.
SECTION 7.15. SEVERABILITY. If any provision of this Mortgage shall be
invalid, illegal or unenforceable in any jurisdiction, the remaining provisions
shall continue to be valid and enforceable and such provision shall continue to
be valid and enforceable in any other jurisdiction.
SECTION 7.16. HEADINGS. The headings of the Sections and subsections
are for convenience and shall not affect the meaning of this Mortgage.
SECTION 7.17. ASSIGNMENT; BENEFIT. Mortgagor may not sell, convey,
assign, transfer or otherwise dispose of all or any portion of its rights and
obligations under this Mortgage. Mortgagor and Mortgagee and their permitted
successors and assigns shall be bound by this Mortgage. They (and their
Indemnified Parties) shall be the only persons entitled to its benefits.
SECTION 7.18. GOVERNING LAW. THIS MORTGAGE SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
MORTGAGEE SHALL HAVE THE RIGHT TO SEEK A DEFICIENCY JUDGMENT AGAINST MORTGAGOR
IN OTHER STATES OR FOREIGN JURISDICTIONS; AND MORTGAGOR AGREES THAT, TO THE
EXTENT MORTGAGEE OBTAINS A DEFICIENCY JUDGMENT IN ANY OTHER STATE OR FOREIGN
JURISDICTION, THEN SUCH PARTY SHALL HAVE THE RIGHT TO ENFORCE SUCH JUDGMENT IN
THE STATE, AS WELL AS IN OTHER STATES OR FOREIGN JURISDICTIONS.
SECTION 7.19. WAIVER OF JURY TRIAL. MORTGAGOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS MORTGAGE, THE INDENTURE OR ANY OTHER SECURITY DOCUMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF MORTGAGEE OR MORTGAGOR IN CONNECTION HEREWITH. MORTGAGOR
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION
FOR THIS PROVISION (AND EACH OTHER PROVISION OF THE INDENTURE AND EACH SECURITY
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR MORTGAGEE ENTERING INTO THIS MORTGAGE. SECTION
7.20. CONSENT TO JURISDICTION. MORTGAGOR AND MORTGAGEE CONSENT FOR
THEMSELVES AND IN RESPECT OF THEIR PROPERTIES, GENERALLY, UNCONDITIONALLY AND
IRREVOCABLY, TO THE NONEXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS
SITTING IN NEW YORK COUNTY WITH RESPECT TO ANY PROCEEDING RELATING TO ANY
MATTER, CLAIM OR DISPUTE ARISING UNDER THIS MORTGAGE OR THE TRANSACTIONS
CONTEMPLATED HEREBY. MORTGAGOR FURTHER CONSENTS, GENERALLY, UNCONDITIONALLY AND
IRREVOCABLY, TO THE NONEXCLUSIVE JURISDICTION OF THE STATE OF NEW YORK AND
FEDERAL COURTS OF THE STATE OF NEW YORK IN RESPECT OF ANY PROCEEDING RELATING TO
ANY MATTER, CLAIM OR DISPUTE ARISING WITH RESPECT TO THE COLLATERAL. MORTGAGOR
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS, GENERALLY,
UNCONDITIONALLY AND IRREVOCABLY, AT ITS ADDRESS PURSUANT TO SECTION 7.5 HEREOF,
IN CONNECTION WITH ANY OF THE AFORESAID PROCEEDINGS IN ACCORDANCE WITH THE RULES
APPLICABLE TO SUCH PROCEEDINGS. MORTGAGOR HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY HAVE NOW OR IN THE FUTURE TO THE LAYING OF VENUE IN
RESPECT OF ANY OF THE AFORESAID PROCEEDINGS BROUGHT IN THE COURTS REFERRED TO
ABOVE AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF MORTGAGEE TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW OR TO COMMENCE PROCEEDINGS OR OTHERWISE PROCEED AGAINST
MORTGAGOR IN ANY JURISDICTION.
SECTION 7.21. LIMITATION ON INTEREST PAYABLE. It is the intention of
the parties to conform strictly to the usury laws, whether state or federal,
that are applicable to the transaction of which this Mortgage is a part. All
agreements between Mortgagor and Mortgagee whether now existing or hereafter
arising and whether oral or written, are hereby expressly limited so that in no
contingency or event whatsoever shall the amount paid or agreed to be paid by
Mortgagor for the use, forbearance or detention of the money to be paid pursuant
to the Indenture or any Security Document, or for the payment or performance of
any covenant or obligation contained herein or in the Indenture, the Notes or
any other Security Document, exceed the maximum amount permissible under
applicable federal or state usury laws. If under any circumstances whatsoever
fulfillment of any such provision, at the time performance of such provision
shall be due, shall involve exceeding the limit of validity prescribed by law,
then the obligation to be fulfilled shall be reduced to the limit of such
validity. If under any circumstances Mortgagor shall have paid an amount deemed
interest by applicable law, which would exceed the highest lawful rate, such
amount that would be excessive interest under applicable usury laws shall be
applied to the reduction of the principal amount owing in respect of the Secured
Obligations and not to the payment of interest, or if such excessive interest
exceeds the unpaid balance of principal and any other amounts due hereunder, the
excess shall be refunded to Mortgagor. All sums paid or agreed to be paid for
the use, forbearance or detention of the principal under any extension of credit
by Mortgagee shall, to the extent permitted by applicable law, and to the extent
necessary to preclude exceeding the limit of validity prescribed by law, be
amortized, prorated, allocated and spread from the date of this Mortgage until
payment in full of the Secured Obligations so that the actual rate of interest
on account of such principal amounts is uniform throughout the term hereof.
SECTION 7.22. COVENANTS TO RUN WITH THE LAND. All of the grants,
covenants, terms, provisions and conditions in this Mortgage shall run with the
Land and shall apply to and bind the successors and assigns of Mortgagor. If
there shall be more than one mortgagor, the covenants, representations and
warranties made herein shall be joint and several.
SECTION 7.23. NO MERGER. The rights and estate created by this
Mortgage shall not, under any circumstances, be held to have merged into any
other estate or interest now owned or hereafter acquired by Mortgagee unless
Mortgagee shall have consented to such merger in writing.
SECTION 7.24. RELATIONSHIP. The relationship of Mortgagee to Mortgagor
hereunder is strictly and solely that of mortgagee and mortgagor and nothing
contained in this Mortgage, or any other document or instrument now existing and
delivered in connection herewith or otherwise in connection with the Secured
Obligations, is intended to create or shall in any event or under any
circumstance be construed as creating a partnership, joint venture,
tenancy-in-common, joint tenancy or other relationship of any nature whatsoever
between Mortgagee and Mortgagor other than as mortgagee and mortgagor.
SECTION 7.25. [RESERVED]
SECTION 7.26. SUBORDINATION TO BRIDGE LOAN MORTGAGE. This Mortgage and
the Lien hereof is subject and subordinate to the Bridge Loan Mortgage and the
Lien thereof, and the Revolving Loan Mortgage and the Lien thereof to the extent
set forth in and subject to the terms and conditions of the Intercreditor
Agreement.
SECTION 7.27. SUBJECT TO RETAIL UNIT CONTRACT OF SALE. Notwithstanding
anything to the contrary contained herein, no Potential Default or Event of
Default shall occur under this Mortgage, and Mortgagee may not claim a Potential
Default or Event of Default hereunder, by reason of any action or omission taken
or permitted by Mortgagor for the purpose of satisfying or complying with any
term or condition of the Retail Unit Contract of Sale which, if not satisfied or
complied with by Mortgagor, would constitute a breach or default under the
Retail Unit Contract of Sale. Further, the modification or suspension of the
obligations under the Declaration, the License Agreement and/or the Improvements
Agreement in accordance with the terms and provisions of the Retail Unit
Contract of Sale, provided that the same does not arise by reason of the default
by Mortgagor thereunder, shall not constitute a Potential Default or an Event of
Default under this Mortgage.
ARTICLE VIII
NEW YORK LAW PROVISIONS
SECTION 8.1. EXECUTION OF FINANCING STATEMENTS. Pursuant to Section
9-402 of the Uniform Commercial Code, Mortgagor authorizes Mortgagee to file
financing statements with respect to the Mortgaged Property without the
signature of Mortgagor in such form and in such filing offices as Mortgagee
reasonably determines appropriate to perfect the security interests of Mortgagee
under this Mortgage. A carbon, photographic or other reproduction of this
Mortgage shall be sufficient as a financing statement for filing in any
jurisdiction. Without limiting the foregoing, Mortgagor acknowledges that it is
responsible for the execution, delivery and filing of financing statements and
continuation statements with respect to the Mortgaged Property to perfect the
security interests of Mortgagee under this Mortgage.
SECTION 8.2. LIEN LAW. In compliance with Section 13 of the New York
Lien Law, Mortgagor shall receive any advances secured hereby, and shall hold
the right to receive such advances, as a trust fund to be applied first for the
purpose of paying the cost of any improvement, and shall apply the same first to
the payment of the cost of such improvement before using any part of the total
of the same for any other purpose. Mortgagor hereby represents and warrants in
favor of Mortgagee that, during the period commencing eight (8) months prior to
the date of this Mortgage and ending on the date of this Mortgage, no work has
been performed in connection with the Property or the Improvements which could
give rise to the filing of a mechanic's or materialmen's lien that would attach
to the Property or the Improvements.
SECTION 8.3. PROVISION REGARDING RESIDENTIAL DWELLING UNITS. This
Mortgage does not cover 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 having their own separate cooking facilities.
SECTION 8.4. INSURANCE. The provisions of subsection 4 of Section 254
of the New York Real Property Law covering the insurance of buildings against
loss by fire shall not apply to this Mortgage, the Indenture or the other
Security Documents. In the event of any conflict, inconsistency or ambiguity
between the provisions of this Mortgage, the Indenture and the other Security
Documents and the provisions of subsection 4 of Section 254 of the New York Real
Property Law covering the insurance of buildings against loss by fire, the
provisions of this Mortgage and the Indenture shall prevail.
SECTION 8.5. LEASES. In addition to all of Mortgagee's other rights
and remedies herein, in the Indenture or in the other Security Documents,
Mortgagee shall also have all of the rights against lessees of the Property, if
any, set forth in Section 291-f of the Real Property Law of New York.
SECTION 8.6. STATUTORY CONSTRUCTION. The provisions of this Mortgage
shall be in addition to the provisions set forth in Section 254 of the Real
Property Law of New York, and the provisions contained in this Mortgage, the
Indenture and the other Security Documents shall afford rights supplemental to
and not exclusive of the rights conferred by the provisions set forth in said
Section 254 and shall not impair, modify, alter or defeat such rights (except as
provided in Section 8.4 above), notwithstanding that such provisions may relate
to the same subject matter or provide for different or additional rights in the
same or similar contingencies as the provisions set forth in said Section 254.
The rights of Mortgagee arising under the provisions contained in this Mortgage,
the Indenture and the other Security Documents shall be separate, distinct and
cumulative, and none of them shall be in exclusion of the others. No act of
Mortgagee shall be construed as an election to proceed under any one provision
herein to the exclusion of any other provision, anything herein or otherwise to
the contrary notwithstanding. Except as provided in Section 8.4 above, in the
event of any conflict between the provisions of Section 254 of the New York Real
Property Law and the provisions of this Mortgage, the Indenture and the other
Security Documents, the provisions affording Mortgagee greater rights or
protection shall prevail.
SECTION 8.7. TRANSFER TAXES.
(a) In the event of a sale or other disposition of the Mortgaged
Property or an interest in an entity having an interest in the Mortgaged
Property, including a sale pursuant to a judgment of foreclosure or a transfer
in lieu thereof, or any other transaction with respect to the Mortgaged
Property, which would result in any transfer tax liability, Mortgagor shall
fully and accurately complete and execute all forms and documents which
Mortgagee may reasonably require, and shall deliver such forms and documents,
together with the amount of any tax liability that will be due, to Mortgagee at
least fifteen (15) days prior to the scheduled date of the sale or other
disposition in question. If Mortgagor fails to pay any such tax liability and
Mortgagee pays all or any part thereof, the amount of any such payment, together
with interest thereon at the Default Rate from the date incurred by Mortgagee
until actually paid by Mortgagor, shall be immediately paid by Mortgagor on
demand and shall be secured by this Mortgage and by all of the other Security
Documents securing all or any part of the Secured Obligations.
(b) Mortgagor shall pay when due any and all mortgage recording and
other taxes payable or determined to be payable in connection with the
execution, delivery, recording or enforcement of this Mortgage, the Indenture
and the other Security Documents, and any interest and penalties thereon.
(c) Mortgagor hereby indemnifies and agrees to hold Mortgagee harmless
from and against any and all Losses with respect to or resulting from any delay
in paying or any omission or failure to pay any taxes described in this Section
(including all costs of responding to any audits and any and all penalties and
interest imposed).
SECTION 8.8. MORTGAGE RECORDING TAX. If, by the laws of the United
States of America, or of any state or political subdivision having jurisdiction
over Mortgagor, any stamp, mortgage recording or other tax (other than real
estate taxes) is due or becomes due in respect of the issuance of the Notes, the
execution and delivery of the Credit Agreement or the execution, delivery or
recording of this Mortgage or any assignment of leases and rents given as
security for the Notes or is otherwise required to be paid in order to enforce
this Mortgage or to foreclose the lien hereof, Mortgagor covenants and agrees to
pay such tax at the time and in the manner required by any such law, Mortgagor
further covenants to defend and hold harmless and agrees to indemnity each
Secured Party from and against any and all Losses incurred by reason of any such
imposition of any such tax or any claim therefor.
SECTION 8.9. POWER OF SALE.
(a) The provisions of Section 6.2 of this Mortgage are hereby
supplemented to provide that Mortgagee may, either with or without entry or
taking possession of the Property as provided in this Mortgage or otherwise,
personally or by its agents or attorneys, and without prejudice to the right to
bring an action for foreclosure of this Mortgage, sell the Mortgaged Property or
portion thereof, and all estate, right, title and interest of Mortgagor therein,
and terminate all rights of redemption with respect thereto, pursuant to any
procedures provided by applicable law, including, without limitation, the
procedures set forth in Article 14 of the New York Real Property Actions and
Proceedings Law and any amendments or substitute statutes in regard thereto (the
"RPAPL"). Any sale or sales pursuant hereto shall be for the Mortgaged Property
as a whole or in parcels and shall be held at such time and place, upon such
terms and after such notice thereof as may be required or permitted by
applicable law.
(b) All notices hereunder or under any applicable law pertaining
hereto (including, without limitation, Article 14 of the RPAPL) shall be in
writing and shall be deemed sufficiently served for all purposes when given
pursuant to Section 7.5 of this Mortgage or as otherwise permitted by Article 14
of the RPAPL. For purposes hereof, notices may be given by the parties hereto or
by their respective attorneys.
(c) The provisions of this Section are intended to supplement, and not
limit, the other provisions of this Mortgage; provided, however, that in the
event the provisions of this Section contradict any other provision of this
Mortgage, the provisions of this Section shall govern.
[-REMAINDER OF PAGE IS BLANK.-]
IN WITNESS WHEREOF, Mortgagor has duly executed and delivered this Mortgage as
of the date first written above.
PLANET HOLLYWOOD (REGION III), INC.,
a Florida corporation
By:
Name:
Title:
Attest:
Name:
Title:
ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of March in the year 2000, 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
My commission expires:
[affix notarial seal]
EXHIBIT A
TO MORTGAGE
DESCRIPTION OF LAND
EXHIBIT B
TO MORTGAGE
PERMITTED EXCEPTIONS
1. [Zoning laws and regulations]
2. [Attach acceptable title exceptions described in Schedule B to the
title insurance policy.]
EXHIBIT C
TO MORTGAGE
INFORMATION FOR FINANCING STATEMENTS
Chief Executive Office: c/o Planet Hollywood International, Inc.
Corporate Office
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Principal Place of Business: c/o Planet Hollywood International, Inc.
Corporate Office
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Location of Each Required Filing Office:
1. Secretary of State of New York.
2. New York County, State of New York
3. Florida Secretary of State
Appendix A
1. INSURANCES FOR THE MORTGAGED PROPERTY
(i) REQUIRED INSURANCE. Planet Hollywood, Region III and/or
Hospitality will maintain, or cause to be maintained, property and liability
insurance (in addition to that which is required by section 2 below) with
respect to the Mortgaged Property as reasonably requested from time to time by
the Mortgagee (but in any event in an amount sufficient to prevent the Mortgagee
or any Guarantor from becoming a co-insurer of any loss under the terms of the
policy), including: (A) "all risk" property insurance against direct physical
loss or damages caused by any of the perils customarily insured under the
standard fire insurance policy with broad form extended coverage, vandalism and
malicious mischief and sprinkler leakage endorsements added thereto covering the
Mortgaged Property in at least the amount of its full insurable value on a
replacement cost basis; (B) comprehensive general liability insurance with a
combined single limit of $5,000,000 for each occurrence providing coverage for
bodily injury, including death, and property damage, including loss of use of
such property, arising out of the ownership, maintenance or use of the Mortgaged
Property and premises liability insurance, blanket contractual liability
insurance and products liability insurance (during the period of any
construction or restoration work at the Mortgaged Property); (C) if the
Mortgaged Property or any portion thereof is located in any area designated by
the Federal Emergency Management Agency as a special flood hazard area (Zone A
or Zone V) (the "Flood Zone"), flood insurance covering the Mortgaged Property
(and the Mortgagee reserves the right to require that the applicable Guarantor
secure flood insurance in excess of the amount required by applicable law if
such insurance is commercially available, up to the amount provided in clause
(A) above); (D) steam boiler and machinery breakdown direct-damage insurance and
third-party liability coverage (if not covered under the comprehensive general
liability policy described in clause (B) above), with full comprehensive
coverage on a repair and replacement cost basis, for all boilers and machinery
which form a part of the Mortgaged Property; (E) to the extent not covered under
clauses (A) and (D) above, difference-in-conditions coverage (including flood
and earthquake to the extent available), in an amount satisfactory to the
Mortgagee; (F) during any period of construction or restoration of the Mortgaged
Property, a policy or policies of builder's risk coverage written on a completed
value basis insuring against such risks (including, without limitation, fire and
extended coverage, collapse of the Mortgaged Property and earthquake coverage to
agreed limits) as the Mortgagee may request, in form and substance acceptable to
the Mortgagee; and (G) such other insurance with respect to the Mortgaged
Property as the Mortgagee from time to time may reasonably require.
(ii) FORM. All insurance required by this Section 1 shall be taken out
and maintained with an insurer licensed to do business in the State of New York,
having a general policy holder's rating of not less than ["A"] and a financial
rating of not less than Class ["XII"] as rated by the most recent A.M. Best &
Co. insurance reports and otherwise reasonably acceptable to the Mortgagee, and
shall have a deductible, and shall otherwise be in form and substance,
reasonably satisfactory to the Mortgagee. Each such policy with respect to the
Mortgaged Property shall name the Mortgagee as an additional insured and loss
payee and shall contain standard clauses waiving all rights of subrogation
against the Mortgagee and requiring that, subject to the terms of the
Intercreditor Agreement, all Insurance Proceeds resulting from any claim be paid
to the Mortgagee notwithstanding (A) any act or negligence of any Guarantor or
its agents or employees which might, absent such agreement, result in a
forfeiture of all or part of such insurance payment, (B) the occupation or use
of the Mortgaged Property or any part thereof for purposes more hazardous than
permitted by the terms of such policy, (C) any foreclosure or other action or
proceeding taken pursuant to the Mortgage, or (D) any change in title to or
ownership of the Mortgaged Property or any part thereof. Each policy shall
contain an undertaking by the insurer that such policy shall not be modified
without at least thirty (30) days' prior notice to, and the prior written
consent of, the Mortgagee.
(iii) DELIVERY OF POLICIES; PAYMENT OF PREMIUMS. Deliver, or cause to
be delivered, all insurance policies or certificates therefor (or the underlying
policies in the case of blanket insurance) required under this Section to the
Mortgagee with premiums paid, which delivery shall constitute an assignment by
the applicable Guarantor to the Mortgagee of all of its rights thereunder,
including return of premium. If the Company shall fail to deliver, or cause to
be delivered, renewal policies therefor and receipts showing payment of premiums
not less than thirty (30) days prior to their respective dates of expiration,
the Mortgagee may procure such insurance as it may elect and may make payment of
premiums thereon, which payment shall be payable immediately upon demand,
together with interest at the rate specified in the Indenture from the date of
payment by the Mortgagee, and shall be added to and become part of the
Obligations. In no event, and whether or not default hereunder has occurred,
shall the Mortgagee, by the fact of approving, accepting or obtaining such
insurance, incur any liability for the amount of such insurance, the form or
legal sufficiency of insurance contracts, solvency of insurers or payment of
losses by insurers, and the Company hereby expressly assume full responsibility
therefor and liability, if any, thereunder.
(iv) NOTICE OF LOSS. If damage to, destruction or loss of or other
casualty with respect to any of the Mortgaged Property (a "Casualty") occurs,
immediately take such action or cause such action to be taken as may be
necessary or reasonably appropriate to protect the Mortgaged Property or
remaining portion thereof. The Company will also give the Mortgagee prompt
notice of damage to or destruction of any portion of the Mortgaged Property and
in case of loss covered by policies of insurance, the Mortgagee is hereby
authorized to make proof of loss if not made promptly by the Company. Any
expenses incurred by the Mortgagee in the collection of the proceeds of such
policies of insurance, together with interest thereon from date of any such
expense at the rate specified in the Indenture (or such lesser rate of interest
as may be the maximum not prohibited by applicable law), shall be added to and
become part of the Obligations and shall be reimbursed to the Mortgagee
immediately upon demand.
(v) NO SEPARATE INSURANCE. Except as set forth in section 2 below,
Planet Hollywood (Region III), Inc. ("Region III"), or Planet Hospitality
Holdings, Inc. ("Hospitality"), both a Florida corporation shall not take out
separate insurance concurrent in form or contributing in the event of loss with
that required to be maintained hereunder unless the Mortgagee is named as an
additional insured thereon under a standard mortgagee clause acceptable to the
Mortgagee and each such policy is otherwise in form and substance acceptable to
the Mortgagee. Planet Hollywood, Region III or Hospitality, as the case may be,
shall notify the Mortgagee at least thirty (30) days prior to the date that any
such separate insurance is to be taken out and, if such insurance is permitted
by the Mortgagee, shall promptly deliver to the Mortgagee the policy or policies
of such insurance satisfactory to the Mortgagee.
2. MAINTENANCE OF INSURANCE.
(i) Maintain, and cause each of their respective Subsidiaries to
maintain, with responsible and reputable insurance companies or associations
insurance (including, without limitation, comprehensive general liability,
hazard, rent and business interruption insurance) with respect to their
properties and business, in such amounts and covering such risks, as is required
by any Governmental Authority or other regulatory body having jurisdiction with
respect thereto or as is carried generally in accordance with sound business
practice by companies in similar businesses similarly situated and in any event
in amount, adequacy and scope reasonably satisfactory to the Mortgagee as of the
on the date as of which the Indenture is dated and with such deductibles or
self-insured retentions as are in accordance with normal industry practice and
all applicable laws, rules and regulations; PROVIDED, HOWEVER, that in no event
will any such deductible or self-insured retention in respect of liability
claims or in respect of casualty damage exceed, in each such case, $250,000 per
occurrence. Each insurance policy referred to in this section 2 shall specify
the Mortgagee as loss payee thereof and contain a standard endorsement
satisfactory to the Mortgagee effecting such specification. All policies
covering the Collateral are to be made payable to the Mortgagee, in case of
loss, under a standard non-contributory "lender" or "secured party" clause and
are to contain such other provisions as the Mortgagee may require to fully
protect the Mortgagee's interest in the Collateral and to any payments to be
made under such policies. All original policies or true copies thereof are to be
delivered to the Mortgagee, premium prepaid, with the additional insured
endorsement in the Mortgagee's favor, and shall provide for not less than thirty
(30) days prior written notice to the Mortgagee of the exercise of any right of
modification or cancellation. So long as no Event of Default has occurred or is
continuing or would occur after giving effect to the loss giving rise to the
insurance proceeds, amounts received by the Mortgagee as payee shall, if in
excess of $1,000,000, be credited to the borrowings and shall be available for
reborrowing, subject to the terms and conditions hereof. Insurance proceeds of
$1,000,000 or less may be reinvested in the replacement of items which were the
subject of the insurance recovery. At the Company's request, the Mortgagee may
arrange for such insurance, but at the Company's expense and without any
responsibility on the Mortgagee's part for obtaining the insurance, the solvency
of the insurance companies, the adequacy of the coverage, or the collection of
claims.
(b) After the on the date as of which the Indenture is dated, the
Company shall have the right to change insurance carriers to one or more other
insurance carriers having the same "Best" rating or to modify existing insurance
policies upon notice to the Mortgagee without the Mortgagee's consent; PROVIDED,
HOWEVER, that on the effective date of such changes and modifications, (i) the
Company remains insured in such amounts and covering such risks as is required
by any Governmental Authority or other regulatory body having jurisdiction with
respect thereto, (ii) such insurance is adequate in amount and scope as is
carried generally in accordance with sound business practice by companies in
similar businesses similarly situated, (iii) the amount, adequacy and scope of
such insurance is substantially similar to that in existence as of the on the
date as of which the Indenture is dated, and (iv) a loss payee endorsement is
delivered to Mortgagee simultaneously with the effective date thereto (there
being no grace period for any Event of Default based on the requirements of this
section 2.
(c) Upon the occurrence and during the continuance of an Event of
Default, the Mortgagee shall have the sole right, in the name of the Mortgagee,
to file claims under any insurance policies insuring any of the Collateral
(other than with respect to the Bridge Loan Collateral until such time that the
holders of the notes issued pursuant to the Note Purchase Agreement have been
paid in full), provided that the Mortgagee gives prompt notice thereof to the
Company, to receive, receipt and give acquittance for any payments that may be
payable thereunder, and to execute any and all endorsements, receipts, releases,
assignments, reassignments or other documents that may be necessary to effect
the collection, compromise or settlement of any claims under any such insurance
policies.
Appendix B
[Insert Part A of Schedule 9.01]
