Exhibit 2.4
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SECTION: 4
BLOCK: 4877
LOTS: 20, 100, 200, 250
Premises: 0000 Xxxxxxx Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxx
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MORTGAGE AMOUNT: $17,760,000
LEASEHOLD MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES RENTS AND PROFITS AND
FIXTURE FINANCING STATEMENT
from
NEW HORIZONS OF YONKERS, INC.
to
IBJ WHITEHALL BANK & TRUST COMPANY
as Trustee
Dated as of February 2, 1999
===============================================================================
WHEN RECORDED, RETURN TO:
Xxxxxxx X. Xxxxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
THIS MORTGAGE DOES NOT COVER REAL PROPERTY PRINCIPALLY IMPROVED OR TO BE
IMPROVED BY ONE (1) OR MORE STRUCTURES CONTAINING IN THE AGGREGATE NOT MORE THAN
SIX (6) RESIDENTIAL DWELLING UNITS, EACH HAVING ITS OWN SEPARATE COOKING
FACILITIES.
MORTGAGE AMOUNT: $17,760,000
LEASEHOLD MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT
OF LEASES, RENTS AND PROFITS AND FIXTURE FINANCING STATEMENT
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THIS LEASEHOLD MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES,
RENTS AND PROFITS AND FIXTURE FINANCING STATEMENT, made as of February 2, 1999,
by, NEW HORIZONS OF YONKERS, INC., a Delaware corporation, having an address at
Xxx Xxxxxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
(together with its permitted successors and assigns, the "Mortgagor"), in favor
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of IBJ WHITEHALL BANK & TRUST COMPANY, having an address at Xxx Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, as Trustee for the benefit of the Noteholders (as such
terms are defined in the Indenture, hereinafter defined, together with its
successors in interest, the "Mortgagee").
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WITNESSETH:
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WHEREAS, the Mortgagee, Bradlees Stores, Inc. (the "Issuer") and
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Bradlees, Inc. have entered into an Indenture of even date herewith (as the same
may be amended, supplemented, renewed or extended from time to time, the
"Indenture") pursuant to which the Issuer issued the Notes in the aggregate
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principal amount of $29,000,000, dated the date hereof. (ALL CAPITALIZED TERMS
USED IN THIS MORTGAGE AND NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS
SET FORTH IN THE INDENTURE.)
NOW, THEREFORE, to secure (i) payment of a portion of the indebtedness
evidenced by the Notes, in the Mortgage Amount (as defined above), together with
all interest accrued thereon as provided for in the Notes, and (ii) payment of
all other amounts due under the Indenture and the other Security Documents, and
(iii) the performance of the covenants and agreements contained herein and in
the Indenture and the other Security Documents; and also in consideration of the
sum of Ten Dollars in hand paid, the receipt and sufficiency of which are hereby
acknowledged:
GRANTING CLAUSE
The Mortgagor, intending to be legally bound, hereby mortgages, gives,
grants, assigns, transfers, pledges, grants a security interest and sets over to
the Mortgagee, to secure (i) payment of a portion of the indebtedness evidenced
by the Notes, in the Mortgage Amount, together with all interest accrued thereon
as provided for in the Notes, and (ii) payment of all other amounts due under
the Indenture and the other Security Documents, and (iii) the performance of the
covenants and agreements contained herein and in the Indenture and the other
Security Documents, any and all of the Mortgagor's right, title and interest in
and to the following property (collectively as set forth in this Granting Clause
the "Mortgaged Property"):
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(a) the leasehold estate of the Mortgagor created pursuant to the lease (the
"Lease") described in Schedule A hereto covering the property described in
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Schedule A hereto and any additions thereto covered by the Lease
(collectively the "Premises");
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(b) all buildings, plants, structures and other improvements now or hereafter
constructed or located on the Premises, or within the Easement Areas (as
hereinafter defined) to the extent constructed and/or owned by the
Mortgagor, and all right, title and interest of the Mortgagor, if any, in
and to all fixtures now or hereafter located on the Premises, within the
Easement Areas or in any such improvements (such of the Mortgaged Property
as is referred to in this paragraph (b) being hereinafter collectively
called the "Improvements"), including, without limitation, all heating,
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lighting, pipes, pipelines, pumps, conduits, plumbing, lifting, cleaning,
fire prevention, fire extinguishing, refrigerating, ventilating,
communications, air cooling and air conditioning apparatus, elevators,
escalators, shades, awnings, screens, storm doors and windows, permanently
attached cabinets, partitions, ducts and compressors, and all of the right,
title and interest of the Mortgagor in and to any Improvements which may be
subject to any title retention or security agreement superior in lien to
the lien of this Mortgage; it being understood and agreed that all
Improvements are part and parcel of the Premises and appropriated to the
use of the Premises and, whether affixed or annexed or not, shall for the
purpose of this Mortgage be deemed conclusively to be real estate and
conveyed hereby;
(c) any insurance proceeds, and the right to receive the same, and any and all
awards or payments, including interest thereon, and the right to receive
the same, which may be made with respect to the Mortgaged Property as a
result of (i) the exercise of the right of eminent domain, (ii) the
alteration of the grade of any street, or (iii) any other injury to or
decrease in the value of the Mortgaged Property;
(d) to the extent permitted by law, all franchises, permits, licenses and
contract rights regarding the use, occupancy or operation of the Mortgaged
Property, including, without limitation, all warranties, all rights with
respect to contracts for utilities, maintenance, service or repair of the
Mortgaged Property and all development and water rights, if any;
(e) all and singular the easements, rights-of-way or use, licenses, privileges,
servitudes, tenements, hereditaments and appurtenances now or hereafter
belonging to or in anywise appertaining to any of the foregoing, including,
without limitation, all easements, interests and rights created and granted
pursuant to the terms of the Lease(all of the foregoing hereinafter
collectively being referred to the "Easements" and the areas subject to the
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Easements being referred to as the "Easement Areas"); all rents, income,
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issues, profits and proceeds thereof; and all the estate, right, title,
interest, property, claim and demand whatsoever, in law as well as in
equity, which the Mortgagor now has or may hereafter acquire, in and to any
of the foregoing;
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(f) all other title, estates, interests or rights of the Mortgagor in the
Premises, the Improvements and the Easement Areas, whether now existing or
hereafter acquired; and
(g) any proceeds, and the right to receive the same, arising from or relating
to any conversion (voluntary or involuntary) of the Mortgaged Property,
including, without limitation, proceeds of any sale, assignment, sublease
or transfer of the Lease, Premises or Improvements.
AND without limiting any of the other provisions of this Mortgage, the
Mortgagor expressly grants to the Mortgagee, as secured party, a security
interest in all of those portions of the Mortgaged Property (for the avoidance
of doubt, expressly excluding any and all "inventory", "equipment" and other
personal property (other than, with respect to such other personal property, as
expressly set forth in paragraphs (a) through (g) above) as such terms are
defined or used in the New York Uniform Commercial Code (the "New York UCC"))
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which are or may be subject to the New York UCC provisions applicable to secured
transactions (including, without limitation, Article 9 of the New York UCC).
The Mortgagor agrees to execute and deliver, from time to time such further
instruments (including, without limitation, further security agreements, as
defined in subdivision (1) of Section 9-105 of the New York UCC) as may be
reasonably requested by the Mortgagee to confirm the security interest and lien
of this Mortgage on the Mortgagor's interest in such portions of the Mortgaged
Property.
SUBJECT, HOWEVER, to the encumbrances, if any, listed in the title
insurance policies issued to and approved by the Mortgagee in connection
herewith (which encumbrances are hereinafter collectively referred to as the
"Permitted Encumbrances").
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TO HAVE AND TO HOLD the Mortgaged Property with all privileges and
appurtenances hereby granted, pledged, transferred, conveyed, mortgaged and
assigned, or agreed or intended so to be, unto the Mortgagee and its successor
and assigns, forever.
The Mortgagor covenants that (i) it is lawfully seized and possessed
of good and marketable title to the Premises, the Easement Areas and the
Improvements; (ii) the Mortgaged Property is subject only to the Permitted
Encumbrances; (iii) it has a good right and full power and authority to make
this Mortgage; and (iv) the Mortgagor at its expense will warrant and defend to
the Mortgagee such title to the Mortgaged Property and the lien and interest of
the Mortgagee thereon and therein against all claims and demands and will
maintain and preserve such lien and will keep this Mortgage a first lien upon
the Mortgaged Property subject only to Permitted Encumbrances.
The Mortgagor further represents, warrants, covenants and agrees as
follows:
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ARTICLE I
Payment of Taxes, Insurance, etc.
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1.1. Certain Definitions.
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Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Indenture.
1.2. Payment of Taxes and Claims.
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The Mortgagor shall pay, or cause to be paid when due, all taxes assessments or
similar charges, payments in lieu of taxes, assessments, or similar charges and
all charges, betterments, or other assessments relating to or imposed upon the
Mortgaged Property and all other lawful claims required to be paid by the
Mortgagor (including, without limitation, claims for labor, services, materials
and supplies) pursuant to the terms and provisions of the Lease.
1.3. Compliance with Insurance Requirements Instruments.
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The Mortgagor shall at all times (a) obtain and maintain, or cause to be
obtained and maintained, the types and amounts of insurance required by the
Lease, and (b) comply or cause compliance with any instruments of record at the
time in force affecting the Mortgaged Property or any part thereof.
1.4. Compliance with Laws.
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The Mortgagor shall comply with all Laws, and shall not do or permit any act or
thing to be done which is contrary to any Law in respect of the ownership and
use of the Mortgaged Property, provided, however, that the Mortgagor shall have
the right to contest same in good faith.
1.5. Government Approvals.
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The Mortgagor shall maintain all Government Approvals as required by Law
relating to the Premises.
1.6. Liens.
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The Mortgagor shall not create, incur, assume or suffer to exist, directly or
indirectly, any Lien on or with respect to the Mortgaged Property or any portion
thereof, or the Mortgagor's or the Mortgagee's interest therein, or any income
or profits arising therefrom, except for the Permitted Encumbrances.
1.7. The Lease.
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1.7.1. Modifications. The Mortgagor shall neither cancel, terminate or
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surrender the Lease, nor amend or modify the Lease in any respect, nor request
or grant any consent or waiver thereunder.
1.7.2. Performance. The Mortgagor shall faithfully keep and perform all of its
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obligations as lessee under the Lease. The Mortgagor, on behalf of the
Mortgagee, shall send written notice (by certified mail, return receipt
requested) to the Landlord, with a copy to the Mortgagee, setting forth (i) the
terms of this Section 1.7, (ii) the name and address of the
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Mortgagee, and (iii) the recording date and other recording information for this
Mortgage, together with a true copy of this Mortgage, within sixty (60) days
after the execution of this Mortgage. (The Premises being located in New York
State, reference is made to Section 291-f of the Real Property Law in applying
the provisions of Section 1.7.) Mortgagor shall provide copies to Mortgagee of
all material notices and communications to or from the Landlord.
1.8. Utility Services.
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The Mortgagor shall (i) pay or cause to be paid all charges for all public and
private utility services, all public or private rail and highway services and
all other public or private transportation services, if any, all public or
private communications services, and all sprinkler systems and protective
services at any time rendered to or in connection with the Premises to the
extent required by the Lease, (ii) comply or cause compliance with all contracts
relating to any such services, and (iii) do all other things required for the
maintenance and continuance of all such services.
1.9. Maintenance and Repair, etc.
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The Mortgagor shall maintain and operate (or cause to be maintained and
operated) the Premises and the Easement Areas in accordance with good business
practices consistent with those used by prudent operators of similar facilities.
The Mortgagor shall keep, or cause to be kept, in good working order and
condition, ordinary wear and tear excepted, the Improvements necessary or useful
in the proper conduct of its business on the Premises. The Mortgagor shall not
permit the Improvements or any portion thereof to be removed, demolished or
materially altered, except where such events involve less than $250,000 per
event or $1,000,000 in the aggregate in any fiscal year. To the extent required
by Law, the Lease or the Easements, the Mortgagor shall keep or cause to be kept
the adjoining sidewalks, curbs, vaults and vault space, if any, and streets and
ways located on or adjacent to the same, and all means of access to the
Premises, in good and clean order and condition and in such a fashion that the
value and utility of the Premises will not be diminished, subject only to
ordinary wear and tear. The Mortgagor promptly, at its own expense, shall make
or cause to be made all necessary or appropriate repairs, replacements and
renewals of the Improvements, whether interior or exterior, structural or
nonstructural, ordinary or extraordinary, foreseen or unforeseen to the extent
required pursuant to the Lease. All repairs, replacements and renewals shall be
equal or superior in quality, utility and class to the original work. The
Mortgagor, at its expense, shall do or cause others to do every act necessary or
appropriate for the preservation and safety of the Premises by reason of or in
connection with any excavation or other building operation upon the Premises and
upon any adjoining property, whether or not the Mortgagor or any other Person
shall be required to take such action or be liable for failure to do so.
1.10. Alterations, Changes, etc.
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So long as no Event of Default shall have occurred and be continuing, the
Mortgagor shall have the right to make or cause to be made reasonable
replacements in the ordinary course of business for, alterations of and
additions to the Premises or any part thereof,
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provided that any replacement, alteration or addition (a) shall not change the
general character or affect adversely the structural integrity of the Premises,
or reduce the fair market value thereof below its value immediately before such
replacement, alteration or addition or impair the usefulness of the Premises,
(b) is effected with due diligence, in a good and workmanlike manner and in
compliance with all Laws and insurance requirements, as set forth in the
Indenture, (c) is promptly and fully paid for, or caused to be paid for, by the
Mortgagor, (d) is made, if the estimated cost of such replacement, alteration or
addition exceeds $2,000,000, (i) under the supervision of an engineer or
architect and in accordance with the plans, specifications and cost estimates
reasonably satisfactory to the Mortgagee, and (ii) only after the Mortgagor
shall have furnished or caused to be furnished to the Mortgagee a contractor's
payment and performance bond. In any event in which the Mortgagor shall furnish
the Mortgagee with plans and specifications for any such replacement, alteration
or addition, the Mortgagee may engage, at the Mortgagor's reasonable expense, an
architect or engineer to review such plans and specifications on the Mortgagee's
behalf. All replacements for, alterations of and additions to the Premises shall
immediately constitute a part of the Mortgaged Property subject to this
Mortgage.
1.11. Acquired Property Subject to Lien.
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All property at any time acquired by the Mortgagor which is located at the
Premises and required by this Mortgage to become subject to the lien hereof,
including any property acquired as provided in Section 1.11, whether such
property is acquired by exchange, purchase, construction or otherwise, shall
forthwith become subject to the lien of this Mortgage without further action on
the part of the Mortgagor or the Mortgagee. The Mortgagor, at its expense, will
execute and deliver to the Mortgagee, upon request (and will record and file as
provided in the Granting Clause), an instrument supplemental to this Mortgage,
satisfactory in substance and form to the Mortgagee, whenever such an instrument
is, in the opinion of the Mortgagee, necessary or desirable under applicable law
to subject to the lien of this Mortgage all right, title and interest of the
Mortgagor in and to all property required by this Mortgage to be subjected to
the lien hereof and acquired by the Mortgagor since the date of this Mortgage or
the date of the most recent supplemental instrument so subjecting property to
the lien hereof, whichever is later.
ARTICLE II
Covenants of the Mortgagor
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2.1. Compliance with Indenture.
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The Mortgagor shall comply or cause compliance with all of the covenants,
conditions and agreements contained in the Indenture applicable to the
Mortgagor, all of which covenants, conditions and agreements are hereby
incorporated herein by reference as though set forth herein in their entirety.
2.2. Obligations Secured by Mortgage.
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This Mortgage shall secure the payment of the principal sum of, interest on,
additional
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interest as provided in and any prepayment premiums due under, the Notes and
shall further secure all advances for the payment of taxes, assessments,
insurance premiums and all other costs incurred for the protection of the
Mortgaged Property, together with interest thereon from the date of such
advances at the highest rate then borne by any of the Notes or at the highest
rate permitted by law, whichever is less.
2.3. Prohibitions on Sale Transfer etc.
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Except as provided herein or permitted under the Indenture, the Mortgagor shall
not, directly or indirectly, voluntarily sell, lease, assign, transfer or
convey, or permit the sale, lease, assignment, transfer or conveyance of the
Premises or Improvements or any additions, alterations or changes to existing
improvements on, the Mortgaged Property or any part thereof or interest therein.
If the Mortgaged Property is sold, transferred, assigned or conveyed by
operation of law without compliance with the terms of the Indenture, the
Mortgagee may, at its option as provided in the Indenture, declare the entire
indebtedness secured hereby to be immediately due and payable. Subject to the
terms of the Lease and except for the assignment effected hereby, by the
Security Documents and the liens created by the Permitted Encumbrances, the
Mortgagor will not assign the whole or any part of the rents, income or profits
arising from the Mortgaged Property, and all other assignments thereof shall be
null and void.
2.4. Recordation.
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The Mortgagor agrees that, at its expense, it will cause this Mortgage and all
Security Documents, UCC-1 Financing Statements and each supplement or extension
hereto or thereto to be recorded, registered and filed, as applicable, and shall
cause the recording, registering and filing, of the same to be kept current in
the same manner and in such places, and will pay or cause to be paid all such
recording, registration, filing or other taxes, fees and other charges. The
Mortgagor shall comply or cause compliance with all such statutes and
regulations, as may be required by law in order to establish, preserve and
protect the lien of this Mortgage as a valid, direct first mortgage lien on the
Mortgaged Property, including all right, title and interest of the Mortgagor in
and to all property required by this Mortgage to be subject to the lien hereof
and acquired by the Mortgagor after the date of this Mortgage, subject only to
the Permitted Encumbrances. The Mortgagor hereby indemnifies the Mortgagee in
respect of any of such costs which may at any time be incurred by the Mortgagee.
2.5. No Waste.
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The Mortgagor shall not commit or permit to be committed any physical waste upon
the Mortgaged Property, or do any act that would materially impair or depreciate
the value of the Mortgaged Property.
2.6. Inspection, etc.
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The Mortgagor shall permit the Mortgagee and any representatives designated by
the Mortgagee to visit and inspect the Mortgaged Property or any part thereof,
to inspect all property, books of record and account and other records of the
Mortgagor relating to the Mortgaged Property and to make copies thereof and
extracts therefrom, and to discuss its
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affairs, finances and accounts with, and to be advised as to the same by, any
officer and any employee or independent accountant or the Mortgagor, all at such
reasonable times and intervals as from time to time may be requested upon two
(2) days' prior notice. The Mortgagee shall not have any duty to make any such
inspection and shall not incur any liability or obligation for not making the
same carefully or properly, or for not completing the same; nor shall the fact
that such inspection may not have been made by the Mortgagee relieve the
Mortgagor of any obligations that it may otherwise have under this Mortgage.
2.7. Notice of Event of Default, Default or Claimed Default.
---- ------------------------------------------------------
The Mortgagor shall deliver, without request or demand, a notice to the
Mortgagee within four (4) business days of becoming aware of the existence of
any condition or event which constitutes an Event of Default or which, after
notice or lapse of time or both, would constitute an Event of Default, which
notice shall specify (i) the nature and period of existence thereof, and (ii)
what action the Mortgagor is taking, or causing to be taken, or intends to take,
or to cause to be taken, with respect thereto.
2.8. No Credit for Payment of Taxes.
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The Mortgagor shall not be entitled to any credit against the principal or
premium, if any, or interest or additional interest on the Notes or any other
sum which may become payable under the terms of the Indenture or any Security
Document by reason of the payment of any tax on the Mortgaged Property or any
part thereof or by reason of the payment of any other taxes, assessments or
similar charges, and shall not apply for or claim any deduction from the taxable
value of the Mortgaged Property or any part thereof by reason of this Mortgage.
2.9. Use of Mortgagee's Name.
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The Mortgagor shall not use the Mortgagee's name or the name of any Person
controlling, controlled by or under common control with the Mortgagee in
connection with the Mortgaged Property, or any part thereof, or any of the
Mortgagor's activities, except as such use may be required by applicable
requirements of law.
2.10. The Lease.
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(a) The Mortgagor shall:
(i) pay all rents, additional rents and other sums required to be paid
by the Mortgagor under and pursuant to the provisions of the Lease;
(ii) diligently perform and observe before the expiration of applicable
cure periods all of the terms, covenants and conditions of the Lease on the
part of the Mortgagor, as tenant thereunder, to be performed and observed,
unless such performance or observance shall be waived or not required by
the Landlord;
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(iii) promptly advise the Mortgagee of any default under the Lease on the
part of the Landlord or any successor landlord; and
(iv) upon written request of Mortgagee, use reasonable efforts to obtain a
certificate of estoppel of the Landlord or any successor landlord at such
intervals as the same may be obtained under the Lease.
(b) The Mortgagor shall not surrender the leasehold estate created by the Lease
or terminate or cancel the Lease or modify, change, supplement, alter or
amend the Lease, in any respect, either orally or in writing, and the
Mortgagor hereby assigns to the Mortgagee, as further security for the
payment and performance of the obligations and indebtedness secured hereby
and for the performance and observance of the terms, covenants and
conditions of this Mortgage, all of the rights, privileges and prerogatives
of the Mortgagor, as tenant under the Lease, to surrender the leasehold
estate created by the Lease or to terminate, cancel, modify, change,
supplement, alter or amend the Lease, and any such surrender of the
leasehold estate created by the Lease or termination, cancellation,
modification, change, supplement, alteration or amendment of the Lease
shall be void and of no force and effect. Simultaneously with the
execution of this Mortgage, the Mortgagor has delivered to the Mortgagee a
true copy of an executed counterpart of the Lease, together with a true
copy of an executed counterpart of any and all assignments thereof and
amendments thereto and an executed counterpart of any memorandum of lease
recorded in connection therewith, all of which shall be retained by the
Mortgagee until the entire indebtedness secured hereby has been paid in
full.
(c) If the Mortgagor shall default in the performance or observance of any
term, covenant or condition of the Lease on the part of the Mortgagor, as
tenant thereunder, to be performed or observed, then, without limiting the
generality of the other provisions of this Mortgage, and without waiving or
releasing the Mortgagor from any of its obligations hereunder, the
Mortgagee shall have the right, but shall be under no obligation, to pay
any sums and to perform any act or take any action as may be appropriate to
cause all of the terms, covenants and conditions of the Lease on the part
of the Mortgagor, as tenant thereunder, to be promptly performed or
observed on behalf of the Mortgagor, to the end that the rights of the
Mortgagor in, to and under the Lease shall be kept unimpaired and free from
default. If the Mortgagee shall make any payment or perform any act or
take action in accordance with the preceding sentence, the Mortgagee will
use its diligent efforts to notify the Mortgagor of the making of any such
payment, the performance of any such act, or taking of any such action.
All sums so paid and expended by the Mortgagee and the interest thereon
shall be secured by the lien of this Mortgage. In any such event, the
Mortgagee and any person designated by the Mortgagee shall have, and are
hereby granted, the right to enter upon the Mortgaged Property at any time
and from time to time for the purpose of taking any such action.
(d) If the Landlord shall deliver to the Mortgagee a copy of any notice of
default sent by the Landlord to the Mortgagor, as tenant under the Lease,
such notice shall constitute full protection to the Mortgagee for any
action taken or omitted to be taken by the Mortgagee, in good faith, in
reliance thereon.
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(e) The Mortgagor shall, from time to time, use reasonable efforts to obtain
from the Landlord such certificates of estoppel with respect to compliance
by the Mortgagor with the terms of the Lease as may be requested by the
Mortgagee.
(f) If the Lease is for any reason whatsoever terminated prior to the natural
expiration of its term, and if, pursuant to any provision of the Lease or
otherwise, the Mortgagee or its designee shall acquire from the Landlord a
new lease of the Premises, the Mortgagor shall have no right, title or
interest in or to such new lease or the leasehold estate created thereby.
(g) No release or forbearance of any of the "Tenant" obligations under the
Lease, pursuant to the Lease or otherwise, shall release the Mortgagor from
any of its obligations under this Mortgage.
(h) In the event of any arbitration or court proceedings pursuant to the Lease,
the Mortgagor hereby authorizes the Mortgagee to participate in such
arbitration or court proceedings in order to protect the Mortgagee's
interests hereunder and provided same shall not be exercised prior to an
Event of Default hereby irrevocably appoints the Mortgagee its agent and
attorney-in-fact (which appointment shall be deemed to be an agency coupled
with an interest) to exercise all of its rights in connection with such
arbitration or court proceedings, including the right to appoint
arbitrators and to conduct arbitration proceedings on its behalf, after the
occurrence of any event of default, but nothing contained herein shall
obligate the Mortgagee to participate in any such arbitration or court
proceedings.
(i) (i) The Mortgagor shall not, without the Mortgagee's prior written
consent, elect to treat the Lease or the leasehold estate created thereby as
terminated under Subsection 365(h)(1) of the Bankruptcy Code, after rejection or
disaffirmance of the Lease by the Landlord thereunder or by any trustee of such
party, and any such election made without such consent shall be void and
ineffective.
(ii) The Mortgagor hereby unconditionally assigns, transfers and sets
over to the Mortgagee all of the Mortgagor's claims and rights to the
payment of damages that may hereafter arise as a result of any rejection or
disaffirmance of the Lease by the Landlord thereunder or by any trustee of
such party, pursuant to the Bankruptcy Code. The Mortgagee shall have and
is hereby granted the right to proceed, in its own name or in the name of
the Mortgagor, in respect of any claim, suit, action or proceeding relating
to the rejection or disaffirmance of the Lease (including, without
limitation, the right to file and prosecute, to the exclusion of the
Mortgagor, any proofs of claim, complaint, motions, applications, notices
and other documents) in any case in respect of the Landlord under the
Bankruptcy Code. This assignment constitutes a present, irrevocable and
unconditional assignment of the foregoing claims, rights and remedies, and
shall continue in effect until all of the indebtedness and obligations
secured by this Mortgage shall have been satisfied and discharged in full.
Any amounts received by the Mortgagee as damages arising out of any such
rejection of the Lease shall be applied first to all reasonable costs and
expenses of the Mortgagee (including, without limitation, reasonable legal
fees) in connection with the exercise of its rights under this paragraph
and then, in such manner as the Mortgagee shall determine, to the reduction
and payment of the indebtedness secured by this Mortgage, and thereafter
any balance shall be remitted to the Mortgagor.
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(iii) The Mortgagee shall not, pursuant to Subsection 365(h)(2) of
the Bankruptcy Code, offset against the rent payable under the Lease the amount
of any damages caused by the nonperformance by the Landlord of such party's
obligations under the Lease after rejection or disaffirmance thereof under the
Bankruptcy Code, without the prior written consent of the Mortgagee if such
offset would result in a forfeiture of the Lease. The Mortgagee shall have the
right to object to all or any part of such offset, and, in the event of such
objection, the Mortgagor shall not effect any offset of the amounts so objected
to by the Mortgagee. The Mortgagor shall indemnify and hold the Mortgagee
harmless from and against any and all claims, demands, actions, suits,
proceedings, damages, losses, costs and expenses of every nature whatsoever
(including, without limitation, reasonable legal fees) arising from or relating
to any such offset by the Mortgagor.
(iv) The Mortgagor shall, promptly after obtaining knowledge thereof,
give written notice to the Mortgagee of any actual filing by or against the
Landlord of a petition under the Bankruptcy Code. The aforesaid written notice
shall set forth any information possessed by the Mortgagor concerning the date
of such filing and the court in which such petition was filed.
(v) In the event that any action, proceeding, motion or notice shall
be commenced or filed in respect of the Landlord under the Lease or the
Mortgaged Property or any part thereof, in connection with any case under the
Bankruptcy Code, following an Event of Default hereunder the Mortgagee shall
have, and is hereby granted, the option, to the exclusion of the Mortgagor,
exercisable upon notice from the Mortgagee to the Mortgagor, to conduct and
control any such litigation with counsel of the Mortgagee's choice. The
Mortgagee may proceed, in its own name or in the name of the Mortgagor, in
connection with any such litigation, and the Mortgagor agrees to execute any and
all powers, authorizations, consents and other documents required by the
Mortgagee in connection therewith. The Mortgagor shall, upon demand, pay to the
Mortgagee all reasonable costs and expenses (including, without limitation,
reasonable legal fees) paid or incurred by the Mortgagee in connection with the
prosecution or conduct of any such proceedings, and, to the extent permitted by
law, such costs and expenses shall be added to the indebtedness secured by this
Mortgage. The Mortgagor shall not, without the prior written consent of the
Mortgagee, commence any action, suit, proceeding or case, or file any
application or make any motion, in respect of the Lease in any such case under
the Bankruptcy Code.
(vi) In the event that a petition under the Bankruptcy Code shall be
filed by or against the Mortgagor, and the Mortgagor or any trustee of the
Mortgagor shall decide to reject the Lease pursuant to Section 365(a) of the
Bankruptcy Code or the Lease shall be subject to rejection pursuant to Section
365(d)(4) of the Bankruptcy Code,
12
the Mortgagor shall give the Mortgagee at least ten (10) days' prior written
notice of the date on which application shall be made to the court for authority
to reject the Lease. The Mortgagee shall have the right, but not the obligation,
to serve upon the Mortgagor or such trustee within such ten (10) day period a
notice stating that (A) the Mortgagee demands that the Mortgagor or such trustee
assume and assign the Lease to the Mortgagee pursuant to Section 365 of the
Bankruptcy Code, and (B) the Mortgagee covenants to cure, or provide adequate
assurance of prompt cure of, all defaults and provide adequate assurance of
future performance under the Lease. In the event that the Mortgagee serves such
notice upon the Mortgagor or such trustee, neither the Mortgagor nor such
trustee shall seek to reject the Lease, and the Mortgagor and such trustee shall
comply with such demand within thirty (30) days after such notice shall have
been given, subject to the Mortgagee's performance of such covenant.
(vii) In the event that a petition under the Bankruptcy Code shall be
filed by or against the Mortgagor, neither the Mortgagor nor any trustee of the
Mortgagor shall seek to extend any of the deadlines set forth in Section 365 of
the Bankruptcy Code without the written consent of the Mortgagee.
(viii) The Mortgagor hereby assigns, transfers and sets over to the
Mortgagee a nonexclusive right to apply to the Bankruptcy Court under Subsection
365(d)(4) of the Bankruptcy Code for an order extending the period during which
the Lease may be rejected or assumed after the entry of any order for relief in
respect to the Mortgagor under Chapter 7 or Chapter 11 of the Bankruptcy Code.
2.11. The Easements.
----- -------------
(a) The Mortgagor shall:
(i) pay or cause to be paid all sums required to be paid by the
Mortgagor under and pursuant to the provisions of the Easements;
(ii) diligently perform and observe before the expiration of
applicable cure periods all of its obligations under the Easements; and
(iii) promptly notify the Mortgagee of the giving of any notice to the
Mortgagor of any default by the Mortgagor in the performance or observance of
any of its obligations under the Easements and promptly deliver to the Mortgagee
a true copy of each such notice.
(b) The Mortgagor shall not terminate or cancel any Easement or modify,
change, supplement, alter or amend any Easement, in any respect either orally or
in writing, and the Mortgagor hereby assigns to the Mortgagee, as further
payment and performance of the obligations and indebtedness secured hereby and
for the performance and observance of the terms, covenants and conditions of
this Mortgage, all
13
of the rights, privileges and prerogatives of the Mortgagor to terminate,
cancel, modify, change, supplement, alter or amend any Easement and any
termination, cancellation, modification, change, supplement, alteration or
amendment of any Easement shall be void and of no force and effect.
Simultaneously with the execution of this Mortgage, the Mortgagor has delivered
to the Mortgagee true and complete certified copies of the Easements, together
with certified copies of any and all assignments thereof and amendments thereto.
(c) If the Mortgagor shall default in the performance or observance of its
obligations under the Easements, then without limiting the generality of the
other provisions of this Mortgage, and without waiving or releasing the
Mortgagor from any of its obligations hereunder, the Mortgagee shall have the
right, but shall be under no obligation, to pay any sums and to perform any act
or take any action as may be appropriate to cause all of the terms, covenants
and conditions of the Easements on the part of the Mortgagor to be promptly
performed or observed on behalf of the Mortgagor, to the end that the rights of
the Mortgagor in, to and under the Easements shall be kept unimpaired and free
from default. All sums so paid and expended by the Mortgagee and the interest
thereon shall be secured by the lien of this Mortgage. In any such event, the
Mortgagee and any Person designated by the Mortgagee shall have, and are hereby
granted, the right to enter upon the Mortgaged Property at any time and from
time to time for the purpose of taking any such action.
ARTICLE III
Eminent Domain, Insurance Proceeds, Etc.
----------------------------------------
3.1. Damage, Destruction or Taking; the Mortgagor to Give Notice; Assignment of
---- --------------------------------------------------------------------------
Awards. In case of (a) any damage to or destruction of the Premises or any
------
part thereof, or (b) any condemnation proceedings or exercise of any right of
eminent domain (hereinafter a "Taking") of all or any part of the Premises, or
to the commencement of any proceedings or negotiations which might result in any
such Taking, the Mortgagor will promptly give or cause to be given written
notice thereof to the Mortgagee, generally describing the nature and extent of
such damage or destruction or of such Taking or the nature of such proceedings
or negotiations and the nature and extent of the Taking which might result
therefrom, as the case may be. Subject to the terms and provisions of the Lease,
the Mortgagee shall be entitled to all insurance proceeds payable on account of
such damage or destruction and to all awards or payments allocable to the
Mortgaged Property on account of such Taking and the Mortgagor hereby
irrevocably assigns, transfers and sets over to the Mortgagee all rights of the
Mortgagor to any such proceeds, award or payment and irrevocably authorizes and
empowers the Mortgagee, at its option, in the name of the Mortgagor or
otherwise, to file and prosecute what would otherwise be the Mortgagor's claim
for any such proceeds, award or payment and to collect, receipt for and retain
the same for disposition in accordance with Section 3.2, in the case of proceeds
received in connection with damage or destruction to the Premises, and Section
3.3, in the case of proceeds received in connection with a Taking. The Mortgagor
will pay or cause to be
14
paid all reasonable costs and expenses incurred by the Mortgagee in connection
with any such damage, destruction or Taking and seeking and obtaining any
insurance proceeds, award or payment in respect thereof. Notwithstanding the
foregoing, provided no Event of Default exists, the Mortgagor shall be entitled
to file and prosecute all claims and to apply any proceeds or awards to
restoration.
3.2. Application of Insurance Proceeds.
---- ---------------------------------
All insurance proceeds received by or payable to the Mortgagee on account of any
damage to or destruction of the Premises or any part thereof (less the actual
costs, fees and expenses incurred by the Mortgagee, including, without
limitation, attorneys' fees and expenses, in connection therewith, for which the
Person incurring the same shall be reimbursed from such proceeds) shall be paid
to the Mortgagee and applied in accordance with Section 8.4 of the Indenture.
3.3. Application of Awards, etc.
---- ---------------------------
All awards and payments received by or payable to the Mortgagor and the
Mortgagee or either of them on account of a Taking (less the actual costs, fees
and expenses incurred by the Mortgagee, including, without limitation,
attorneys' fees and expenses, in connection therewith, for which the Person
incurring the same shall be reimbursed from such award or payment), together
with any interest or other income earned on such awards from the investment
thereof and any other interest paid on any such awards prior to disbursement
hereunder shall be paid to the Mortgagee and applied in accordance with Section
8.4 of the Indenture, provided, however, that if the terms of the Indenture are
inconsistent or conflict with the terms and provisions of the Lease, the terms
and provisions of the Lease shall control.
ARTICLE IV
Events of Default
-----------------
4.1. Events of Default; Indebtedness Due.
---- -----------------------------------
If any one or more of the following events (herein sometimes called "Events of
---------
Default") shall occur:
-------
(a) if there shall occur any "Event of Default" as defined in the Indenture or
in any other Security Documents; or
(b) if the Mortgagor defaults in the observance or performance of any covenant
or agreement on its part to be performed contained in this Mortgage beyond
applicable cure or grace periods; or
(c) if subsequent to the date of this Mortgage the law of the State of New York
shall be changed by statutory enactment judicial decision, regulation or
otherwise, so as (i) to tax the holder of any lien or charge upon real
property (for state, county, municipal or other purpose) based on the value
of the real property subject to such lien or charge, or (ii) to change the
15
taxation (other than income taxes imposed on the income of the holder
thereof) of deeds of trust, mortgages or debts secured by land or property
or the manner of collecting any such taxation, in either such case in a
manner such as to affect adversely this Mortgage or the indebtedness
secured hereby or the holder of this Mortgage, unless, within thirty (30)
days following receipt of a written request from the Mortgagee, the
Mortgagor shall have entered into a lawful and binding agreement
satisfactory in substance and form to the Mortgagee, obligating the
Mortgagor to pay or reimburse the Mortgagee for any tax (other than income
taxes imposed on the income of the holder thereof) imposed on the Mortgagee
by reason of any of the foregoing; then, (1) if such event is an Event of
Default specified in the Indenture in Section 8.1 (d),(e) or (f) with
respect to the Mortgagor, the outstanding principal of the Notes (with
accrued interest thereon) and all other amounts owing under the Indenture
or any other Security Document shall automatically become immediately due
and payable at par together with interest accrued thereon without
presentment, demand, protest or notice of any kind all of which are hereby
waived by the Mortgagor, and (2) in the case of any other Event of Default,
the Mortgagee may, in addition to any right, power or remedy permitted by
law or equity, by Acceleration Notice and in accordance with Section 8.2 of
the Indenture, declare the outstanding principal of the Notes (with accrued
interest thereon) and all other amounts owing under the Indenture or any
Security Document to be, and the outstanding principal of the Notes and
such amounts shall thereupon be and become, immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Mortgagor. The Mortgagor shall pay on
demand all reasonable costs and expenses (including, without limitation,
attorneys' fees) incurred by or on behalf of the Mortgagee in enforcing the
payment of such Notes or other obligations, or occasioned by any default or
Event of Default under this Mortgage.
The Mortgagor hereby waives any notice of default except as
specifically required hereby or in the Indenture.
Notwithstanding the foregoing, if the Event of Default occurs solely
as a result of a notice of default by Landlord to the Mortgagor, the Mortgagor
shall have the right to cure the default so noticed within applicable grace
periods under the Lease. The foregoing is not intended to limit the rights of
the Mortgagee pursuant to Section 4.12 hereof and in the event the Mortgagee
exercises such rights, the Mortgagor shall have ten (10) days after notice from
the Mortgagee within which to reimburse the Mortgagee for all costs and expenses
incurred by the Mortgagee in the exercise thereof.
4.2. Enforcement; Foreclosure.
---- ------------------------
If an Event of Default shall have occurred and be continuing beyond any
applicable grace or cure period provided for herein or in the Indenture, the
Mortgagee, at any time, at its election may, subject to Sections 8.3, 8.5, and
8.8 of the Indenture, proceed at law or in equity or otherwise to enforce the
payment of any outstanding Notes in accordance with the terms hereof and
thereof, obtain specific performance of any agreement contained herein, obtain
an injunction against the violation of any of the terms hereof, or in the aid
16
of the exercise of any power granted hereby, or by law, in accordance with the
terms hereof or institute foreclosure or other proceedings according to law.
All procedural errors in said proceedings, together with any stay of or
exemption from execution, or extension of time of payment, which may be given by
any statute now in force or enacted hereafter, are hereby forever irrevocably
waived and released.
4.3. Power of Sale.
---- -------------
If the unpaid principal amount of and the premium, if any, and interest on the
Notes at the time outstanding shall have become due and payable and shall not
have been paid, the Mortgagee may, subject to Sections 8.3, 8.5, and 8.8 of the
Indenture, sell, assign, transfer and deliver the whole or, from time to time,
any part of the Mortgaged Property, or any interest in any part thereof, at any
private sale or at public auction, with or without demand, advertisement or
notice, for cash, on credit or for other property, for immediate or future
delivery, and for such price or prices and on such terms as the Mortgagee in its
uncontrolled discretion may determine, or as may be required by law.
4.4. The Mortgagee Authorized to Execute Deeds, etc.
---- -----------------------------------------------
The Mortgagor irrevocably appoints the Mortgagee the true and lawful attorney of
the Mortgagor, coupled with an interest, 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, upon the occurrence and during the continuance of an
Event of Default to execute and deliver all such deeds, bills of sale,
assignments and other instruments as the Mortgagee may consider necessary or
appropriate, with full power of substitution, the Mortgagor hereby ratifying and
confirming all that its said attorney or any substitute shall lawfully do by
virtue hereof. Nevertheless, if so requested by the Mortgagee or any purchaser,
the Mortgagor will ratify and confirm any such sale, assignment, transfer or
delivery by executing and delivering to the Mortgagee or such purchaser all such
proper deeds, bills of sale, assignments, releases and other instruments as may
be designated in any such request.
4.5. Purchase of Mortgaged Property by the Mortgagee.
---- -----------------------------------------------
Any Holder may be a purchaser of the Mortgaged Property or of any part thereof
or of any interest therein at any sale thereof, whether pursuant to power of
sale, foreclosure or otherwise, and may apply upon the purchase price thereof
the indebtedness secured hereby owing to such Holder, to the extent of such
Holder's distributive share of the purchase price. Any such Holder shall, upon
any such purchase, acquire good title to the properties so purchased, free of
the lien of this Mortgage and free of all rights of redemption in the Mortgagor.
4.6. 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 of the Mortgagee or the officer making the sale under judicial
proceedings shall be a sufficient discharge to the purchaser for the purchase
money, and such purchaser shall not be obliged to see to the application
thereof.
17
4.7. Waiver of Appraisement, Valuation, etc.
---------------------------------------
The Mortgagor hereby waives, to the fullest extent it may lawfully do so, the
benefit of all appraisement, valuation, stay, extension and redemption laws now
or hereafter in force and all rights of marshalling in the event of any sale of
the Mortgaged Property or any part thereof or any interest therein.
4.8. Sale a Bar Against the 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 foreclosure or power of
sale or otherwise, shall forever be a perpetual bar against the Mortgagor.
4.9. Application of Proceeds of Sale and Other Monies.
------------------------------------------------
The proceeds of any sale of the Mortgaged Property or any part thereof or any
interest therein upon foreclosure of this Mortgage or otherwise and all other
sums at any time received or held by the Mortgagee hereunder, shall (except as
otherwise provided herein or by law) be applied as follows:
First: to the payment of all court costs, all reasonable expenses of
-----
sale, all reasonable costs and expenses of any receiver and any taxes,
assessments or charges, which are prior to the lien of this Mortgage;
Second: to the payment of any indebtedness secured by this Mortgage
------
other than indebtedness evidenced by the Notes; and
Third: to the Mortgagee for pay out in accordance with Section 8.4
-----
of the Indenture.
4.10. Appointment of Receiver.
-----------------------
If an Event of Default shall have occurred and be continuing, the Mortgagee
shall, as a matter of right, be entitled to the appointment of a receiver for
all or any part of the Mortgaged Property, whether such receivership be
incidental to an action of foreclosure or otherwise, and the Mortgagor hereby
consents to the appointment of such a receiver and will not oppose any such
appointment. Such appointment may be made either before or after sale, without
notice, without regard to the solvency of the Mortgagor at the time of
application for such receiver and without regard to the then value of the
Mortgaged Property or whether the same shall be then occupied as a homestead or
not, and the Mortgagee or any other person may be appointed as such receiver.
Such receiver shall have the power to collect the rents, issues and profits of
the Mortgaged Property during the pendency of such foreclosure suit and, in case
of a sale and a deficiency, during the full statutory period of redemption, if
any, whether there be redemption or not, as well as during any further times
when the Mortgagor, except for the intervention of such receiver, would be
entitled to collect such rents, issues and profits, and all other powers which
may be necessary or are usual in such cases for the protection, possession,
control, management and operation of the Mortgaged Property during the whole of
said period. All sums paid by such receiver and all costs and expenses
(including, without limitation, reasonable attorneys' fees) incurred by such
receiver in exercising such powers, together with interest thereon at the
highest rate then borne by any of the Notes from the date of payment or
incurring, shall constitute additional indebtedness secured by this Mortgage.
18
4.11. Possession, Management and Income.
---------------------------------
At any time after the occurrence of an Event of Default, the Mortgagee, upon
notice to the Mortgagor and without the appointment of a receiver or an
application therefor, may enter upon and take possession of the Mortgaged
Property or any part thereof by force, summary proceedings, ejectment or
otherwise and may remove the Mortgagor and all other Persons and any and all
property therefrom and may hold, operate, maintain, repair, preserve, lease
either in its name or in the name of the Mortgagor) and manage the same and
receive all earnings, income, rents, issues, proceeds and profits accruing with
respect thereto or any part thereof. The Mortgagee shall be under no liability
(other than liability for its own gross negligence or willful misconduct) for or
by reason of any such taking of possession, entry, removal, holding, operation
or management, except that any amounts so received by the Mortgagee shall be
applied to pay all reasonable costs and expenses of so entering upon, taking
possession of, holding, operating, maintaining, repairing, preserving, leasing
and managing the Mortgaged Property or any part thereof, and any taxes,
assessments or other charges prior to the lien of this Mortgage which the
Mortgagee may consider it necessary or desirable to pay, and any balance of such
amounts shall be applied as provided in Section 4.9 hereof.
4.12. Right to Perform the Mortgagor's Covenants.
------------------------------------------
If the Mortgagor shall fail to make any payment or perform any term, covenant or
condition required to be performed hereunder or under the Notes, the Indenture
or any Security Document and such failure either constitutes an Event of Default
hereunder or thereunder, the Mortgagee, without waiving or releasing any
obligation or default, may (but shall be under no obligation to) at any time
thereafter upon five days' prior written notice to the Mortgagor (which notice
shall not be deemed to be required in the event that the Mortgagee reasonably
believes that any delay will impair the value of the Mortgaged Property or its
rights hereunder) make such payment or perform such act for the account and at
the expense of the Mortgagor, and may enter upon the Mortgaged Property for such
purpose and take all such action thereon as may be necessary or appropriate
therefor. No such entry and no such action shall be deemed an eviction of any
lessee of the Mortgaged Property or any part thereof. All sums so paid by the
Mortgagee and all costs and expenses (including, without limitation, reasonable
attorneys' fees) so incurred, together with interest thereon at the highest rate
per annum applicable to the Notes, from the date of payment or incurring, shall
constitute additional indebtedness secured by this Mortgage, and the Mortgagor
agrees to pay such sums to the person incurring the same on demand.
4.13. Cumulative Remedies.
-------------------
Each right, power and remedy of the Mortgagee provided for in this Mortgage, the
Indenture or the other Security Documents or now or hereafter existing at law or
in equity or by statute or otherwise shall be separate, distinct, cumulative and
concurrent and shall be in addition to every other right, power or remedy
provided for in this Mortgage, the
19
Indenture or the other Security Documents now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of the exercise
by the Mortgagee of any one or more of the rights, powers or remedies provided
for in this Mortgage, the Indenture or the other Security Documents or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Mortgagee of any or all such
other rights, powers or remedies, and no act of the Mortgagee shall be construed
as an election to exercise any one such right, power or remedy to the exclusion
of any other such right, power or remedy, anything herein or otherwise to the
contrary notwithstanding. The Mortgagor expressly waives (i) all demands,
presentments, notices of protest and of dishonor and notices of every kind or
nature (other than notices expressly provided for in the Indenture, the Notes or
the Security Documents), including without limitation those of any action or
non-action on the part of the Mortgagee or any guarantor, or any other person
whomsoever, (ii) the right to require the Mortgagee to proceed against any
guarantor or any other party, (ii) the right to require the Mortgagee to proceed
against or apply any other security it may hold, and (iv) the right to require
the Mortgagee to pursue any other remedy for the benefit of the Mortgagor.
Furthermore, the Mortgagor agrees that the Mortgagee may in its sole discretion
without prejudice to or in any way limiting or lessening its rights hereunder,
and without affecting or impairing in any way the liability of the Mortgagor
hereunder or under any obligation secured hereby (A) exercise its rights under
this Mortgage without taking any action against any guarantor or any other
party, and without proceeding against or applying any other security it may
hold, (B) at its election, exercise any right or remedy it may have against any
security held by the Mortgagee, including without limitation the right to
foreclose upon any such security by judicial or non-judicial sale, and the
Mortgagor hereby irrevocably and unconditionally waives, releases and forever
agrees not to assert any defense arising out of the absence, impairment or loss
of any right of reimbursement or subrogation or any other right or remedy of the
Mortgagor against any such security, whether resulting from such election by the
Mortgagee or otherwise, and (C) take or give up, or modify, vary, exchange,
renew or abstain from perfecting or taking advantage of, any security for any
such obligation secured hereby.
4.14. Provisions Subject to Applicable Law.
----- ------------------------------------
All rights, powers and remedies provided in this Mortgage may be exercised only
to the extent that the exercise thereof does not violate any provisions of
applicable law and are intended to be limited to the extent necessary so that
they will not render this Mortgage invalid, unenforceable or not entitled to be
recorded, registered or filed under the provisions of any applicable law. If
any term of this Mortgage or any application thereof shall be invalid or
unenforceable, the remainder of this Mortgage and any other application of such
term shall not be affected thereby.
4.15. No Waiver.
----- ---------
Any failure by the Mortgagee to insist upon the strict performance by the
Mortgagor of any of the terms and provisions hereof shall not constitute a
waiver of any such term or provision or of any Event of Default. The Mortgagee,
notwithstanding any such failure, shall have the right thereafter to insist upon
the strict performance by the Mortgagor of
20
any and all of the terms and provisions of this Mortgage to be performed by the
Mortgagor and no waiver of any Event of Default shall affect or alter this
Mortgage, which shall continue in full force and effect with respect to any
other then existing or subsequent Event of Default. By accepting payment of any
amount secured hereby after its due date, the Mortgagee shall not be deemed to
waive its right either to require prompt payment when due of all other amounts
payable hereunder or otherwise secured hereby or to declare a default for
failure to effect such prompt payment. Regardless of consideration and without
the necessity for any notice to or consent by the holder of any subordinate lien
on the Mortgaged Property, the obligation of anyone at any time liable for any
of the indebtedness secured by this Mortgage or any part of the security held
for the indebtedness may be released and the time of payment may be extended and
the terms of any of the Notes and/or this Mortgage may otherwise be modified
without, as to the security for the remainder thereof, in anywise impairing or
affecting the lien of this Mortgage or the priority of such lien, as security
for the payment of the indebtedness as it may be so extended or modified, over
any subordinate lien. The Mortgagee may resort for the payment of the
indebtedness secured hereby to any other security therefor, including without
limitation the Security Documents, in such order and manner as the Mortgagee may
elect. By exercising or failing to exercise any right, power or remedy under
this Mortgage or the Indenture or any of the other Security Documents separately
from or independent of any other of such instruments, no such person or persons
shall be deemed to have waived, released or in any way limited its or their
right to exercise any right, power or remedy under any other of such
instruments. In no event shall the indebtedness secured by this Mortgage be
deemed to be discharged, released or reduced by the exercise of any right, power
or remedy hereunder, except to the extent of the actual net proceeds received by
the Mortgagee from such enforcement of any said right, power or remedy
(including without limitation judicial or non-judicial sale or deed in lieu of
foreclosure), after deducting all legally permitted costs of such sale or other
disposition.
4.16. Compromise of Actions.
----- ---------------------
Following an Event of Default any action, suit or proceeding brought by the
Mortgagee pursuant to any of the terms of this Mortgage or otherwise, and any
claim made by the Mortgagee hereunder (other than against Mortgagor) may be
compromised, withdrawn or otherwise dealt with without any notice to or approval
of the Mortgagor.
4.17. Expenses Incurred in Protecting or Enforcing Rights.
----- ---------------------------------------------------
If the Mortgagee shall incur or expend any sums, including reasonable attorneys'
fees, to the extent permitted by law, whether in connection with any action or
proceeding or not, to sustain the lien of this Mortgage or its priority, or to
protect or enforce any of its rights hereunder, or to recover any indebtedness
hereby secured, or for any title examination or title insurance policy relating
to the title to the Mortgaged Property if obtained for any of the purposes
herein above in this paragraph set forth, all such sums, to the extent permitted
by law, shall on notice and demand be paid by the Mortgagor, together with
interest thereon at the rate per annum applicable to the Notes, and shall be a
lien on the Mortgaged Property, if and to the extent permitted by applicable
law, prior to any right of title to, interest in, or claim upon, the Mortgaged
Property subordinate to the lien of this Mortgage, and shall be deemed to be
part of the indebtedness secured hereby.
21
4.18. Power of Attorney.
----- -----------------
The Mortgagor hereby irrevocably and unconditionally appoints the Mortgagee as
the Mortgagor's true and lawful attorney-in-fact, to act for the Mortgagor in
the Mortgagor's name, place and stead, and for the Mortgagor's use and benefit,
to execute, deliver and file all applications and any and all other necessary
documents or things, to effect a transfer, reinstatement, renewal and/or
extension of any and all licenses, permits, certifications, consents and
approvals from all applicable governmental agencies or authorities
("Governmental Authorizations") issued to the Mortgagor in connection with the
-----------------------------
Mortgagor's use or occupancy of the Mortgaged Property or operation of the
Premises, to permit any transferee of the Premises to operate under the
authority of the Governmental Authorizations issued to the Mortgagor, and to do
any and all other acts incidental to any of the foregoing. The Mortgagor
irrevocably and unconditionally grants to the Mortgagee, as its attorney-in-
fact, full power and authority to do and perform every act necessary and proper
to be done in the exercise of any of the foregoing powers as fully as the
Mortgagor might or could do if personally present or acting, with full power of
substitution, hereby ratifying and confirming all that said attorney shall
lawfully do or cause to be done by virtue hereof. This power of attorney is
coupled with an interest and is irrevocable prior to payment in full of the
obligations secured hereby. The Mortgagee agrees not to exercise such powers as
attorney-in-fact of the Mortgagor unless an Event of Default under the Indenture
has occurred and is continuing.
ARTICLE V
Financing Statement and Miscellaneous Provisions
------------------------------------------------
5.1. Further Assurances.
---- ------------------
The Mortgagor, at its expense shall execute, acknowledge and deliver all such
instruments and take all such action as the Mortgagee may from time to time
reasonably request for assuring to the Mortgagee the properties and rights now
or hereafter subjected to the lien hereof or assigned hereunder or intended so
to be, including without limitation, the execution of a supplemental mortgage or
mortgages relating to any land or other interest in real estate acquired after
the date hereof and referred to in clause (ii) of paragraph (a) of the granting
clause hereof.
5.2. Fixtures; Financing Statement.
---- -----------------------------
This Mortgage constitutes a security agreement under the Uniform Commercial Code
as enacted in the State of New York. The Mortgagor covenants and agrees that,
upon the request of the Mortgagee or upon the subsequent acquisition of any
proceeds, fixtures and other real property, the Mortgagor will provide to the
Mortgagee such further assurances and take such further actions as may be
required by the Mortgagee to establish the Mortgagee's first and prior security
interest in any such proceeds, fixtures and other real property, including,
without limitation, execution and filing or recording in all necessary public
offices, at the Mortgagor's sole cost and expense, any UCC financing statements
in
22
form acceptable to the Mortgagee. Upon request, the Mortgagor shall execute,
deliver and cause to be recorded and filed from time to time with all necessary
public offices, at the Mortgagor's sole cost and expense, continuances and such
other instruments as will maintain the Mortgagee's priority of security in all
such proceeds, fixtures and other property. IT IS INTENDED BY THE MORTGAGOR AND
THE MORTGAGEE THAT THIS MORTGAGE BE EFFECTIVE AS A FINANCING STATEMENT FILED
WITH THE REAL ESTATE RECORDS AS A FIXTURE FILING. FOR THIS PURPOSE, THE
FOLLOWING INFORMATION IS SET FORTH:
(a) Debtor shall mean the Mortgagor, and the address of Debtor shall be its
address set forth on the cover hereof.
(b) Secured Party shall mean the Mortgagee, and the address of Secured Party
shall be its address set forth on the cover hereof.
(c) This document covers goods which are or are to become fixtures related to
the real estate.
(d) The record owners of the real estate are set forth in Schedule A.
5.3. Assignment of Leases, Rents and Profits.
---- ---------------------------------------
To further secure the Obligations, the Mortgagor hereby sells, assigns and
transfers unto the Mortgagee all the rents, issues and profits of the Mortgaged
Property (collectively, "Rents") now due and which may hereafter become due
-----
under or by virtue of any lease, whether written or verbal, or any letting of,
or of any agreement for the use or occupancy of the Mortgaged Property or any
part thereof, which may have been heretofore or may be hereafter made or agreed
to or which may be made or agreed to by the Mortgagee under the powers herein
granted, it being the intention hereby to establish an absolute transfer and
assignment of all such leases and agreements, and all the avails thereunder, to
the Mortgagee and not merely the passing of a security interest. The Mortgagor,
to the extent permitted by applicable law, hereby irrevocably appoints the
Mortgagee its true and lawful attorney (coupled with an interest) in its name,
place and stead (with or without taking possession of the Premises) to rent,
lease or let all or any portion of the Mortgaged Property to any party or
parties at such rental and upon such terms as the Mortgagee shall, in its
reasonable discretion, determine, and to collect all of said Rents arising from
or accruing at any time hereafter, and all now due or that may hereafter become
due under each and every one of the leases and agreements, written or verbal, or
other tenancy existing, or which may hereafter exist on the Mortgaged Property,
with the same rights and powers and subject to the same immunities, exoneration
of liability and rights of recourse and indemnity as the Mortgagee would have
upon taking possession pursuant to the provisions of Article 4 hereof. The
Mortgagor represents and agrees that no Rent has been or will be paid by any
person or entity in possession of any portion of the Mortgaged Property for more
than one installment in advance and that the payment of none of the Rents to
accrue for any portion of the Mortgaged Property will be waived, released,
reduced, discounted or otherwise discharged or compromised by the Mortgagor. As
between the Mortgagor and the Mortgagee, the Mortgagor waives any rights to set-
off disputed amounts due from any person or entity in possession of any portion
of the
23
Mortgaged Property against sums due to the Mortgagee (but the Mortgagor
shall not be deemed hereunder to have waived any rights or remedies against such
person or entity). The Mortgagor agrees that it will not assign any of the
Rents of the Mortgaged Property. Nothing herein contained shall be construed as
constituting the Mortgagee a mortgagee in possession in the absence of the
taking of actual possession of the Mortgaged Property by the Mortgagee pursuant
to Article 4 hereof. In the exercise of the powers herein granted the
Mortgagee, no liability shall be asserted or enforced against the Mortgagee, all
such liability being expressly waived and released by the Mortgagor, except
liability arising out of the gross negligence or willful misconduct of the
Mortgagee. The Mortgagor further agrees to assign and transfer to the Mortgagee
all future leases upon all or any part of the Mortgaged Property and to execute
and deliver, at the request of the Mortgagee, all such further assurances and
assignments in the Mortgaged Property as the Mortgagee shall from time to time
reasonably require. Although it is the intention of the parties that the
assignment contained in this section shall be a present absolute assignment, it
is expressly understood and agreed, anything herein contained to the contrary
notwithstanding, that the Mortgagee shall not exercise any of the rights or
powers conferred upon it by this section except after the occurrence and during
the continuance of an Event of Default and until such time the Mortgagor may
continue to collect and use the rents and operate and manage the Mortgaged
Property.
5.4. Partial Release.
---- ---------------
The Mortgagee, at any time and from time to time, without liability therefor,
without prior notice to the Mortgagor and without affecting the lien of this
Mortgage on any Mortgaged Property or the liability of the Mortgagor except as
expressly provided by such release, easement or other agreement, may release any
part of the Mortgaged Property, consent to the making of any map or plat of all
or any part of the Mortgaged Property, join in granting any easement thereon or
join in any extension agreement or agreement subordinating the lien of this
Mortgage or enter into any other agreement in connection with the Mortgaged
Property.
5.5. Release and Discharge of Mortgage.
---- ---------------------------------
If (i) all of the outstanding principal of and interest on all of the Notes
shall be paid in accordance with the terms thereof and of the Indenture and any
and all sums payable by the Issuer or the Mortgagor under the Indenture and
under the Security Documents shall be paid or (ii) if all of the interests of
the Mortgagor in the Mortgaged Property under the Mortgage shall be Disposed of
and if each of the Issuer and the Mortgagor shall be in compliance with all the
terms, covenants and conditions applicable to it to be complied with under the
Notes, the Indenture and the Security Documents, including, without limitation,
payment of the Net Proceeds to the Trustee, then in either such case, this
Mortgage shall be null and void and of no further force and effect and the
Mortgaged Property hereunder shall thereupon be, and shall be deemed to have
been, reconveyed, released and discharged from the lien of this Mortgage without
further notice on the part of the Mortgagor or Mortgagee hereunder, and the
Mortgagee, at the Mortgagor's expense, will execute and deliver such reasonable
or necessary instruments, if any, as the Mortgagor may request evidencing or
confirming the reconveyance, release and discharge
24
of the Mortgaged Property from the lien of this Mortgage, and any such
instrument, when duly executed by the Mortgagee and duly recorded in the place
where this Mortgage is recorded, shall conclusively evidence such reconveyance,
release and discharge, all as set forth in Section 12.1(d) of the Indenture.
Notwithstanding the foregoing, if (i) or (ii) above shall occur, then the
Mortgagor shall have the option to request to request an assignment of this
Mortgage without recourse, representation or warranty in lieu of the termination
of this Mortgage as described above, and, at the Mortgagor's written request,
which request may be denied in Mortgagee's sole discretion, this Mortgage shall
remain in full force and effect and the Mortgagee shall assign this Mortgage,
and the Mortgagee, at the Mortgagor's expense, will execute and deliver such
reasonable or necessary instruments, if any, as the Mortgagor may request
evidencing or confirming the assignment of this Mortgage, and any such
instrument, when duly executed by the Mortgagee and duly recorded in the place
where this Mortgage is recorded, shall conclusively evidence the assignment of
this Mortgage, and the release and discharge of the Mortgagor from its
obligations hereunder, as set forth in Section 12.1(d) of the Indenture.
Notwithstanding the foregoing, any release of this Mortgage in connection with a
sale of the Mortgaged Property shall not include a release of the security
interests of the Mortgagee in the proceeds of such sale and shall expressly
reserve the Mortgagee's security interests in such proceeds unless and until
such proceeds are actually received by the Mortgagee.
5.6. Mortgagor, Mortgagee, Person(s).
---- -------------------------------
Wherever used in this Mortgage, unless the context clearly indicates a contrary
intent or unless otherwise specifically provided herein, the word "the
Mortgagor" shall mean "the Mortgagor or any subsequent owner or owners of the
Mortgaged Property, or both", and the word "the Mortgagee" shall mean "the
Mortgagee or any holder or holders from time to time of the Notes."
5.7. Cessation of Mortgagor's Interest.
---- ---------------------------------
No cessation of the Mortgagor's interest in the Mortgaged Property shall affect
this Mortgage or any of the Notes.
5.8. Notices.
---- -------
All notices, demands, requests, consents, approvals and other instruments under
this Mortgage or any of the Notes shall be in writing and shall be sent by first
class mail, registered mail or overnight courier and, if to the Mortgagee,
addressed to the Mortgagee at the address set forth for communications in the
Indenture, and, if to the Mortgagor, addressed to it at the address set forth
for communications in the Indenture, or to such other address with respect to
any party as such party shall notify the other in writing; provided any such
--------
communication to the Mortgagor may also, at the option of the Mortgagee, be hand
delivered to the Mortgagor at its address set forth above.
5.9. No Merger of Fee and Leasehold Estates.
---- --------------------------------------
So long as any portion of the obligations and indebtedness secured hereby
remains unpaid or has not been performed, unless the Mortgagee shall otherwise
consent, the fee title to
25
the Premises and the leasehold estate therein created pursuant to the provisions
of the Lease shall not merge but shall always be kept separate and distinct,
notwithstanding the union of such estates in the Mortgagor, or in any other
person by purchase, operation of law or otherwise. If the Mortgagee shall
acquire the fee title to the Premises and the leasehold estate therein created
pursuant to the provisions of the Lease, by foreclosure of this Mortgage or
otherwise, such estates shall not merge as a result of such acquisition and
shall remain separate and distinct for all purposes after such acquisition
unless and until the Mortgagee shall elect to merge such estates.
5.10. No Claims Against the Mortgagee, etc.
----- -------------------------------------
Nothing contained in this Mortgage shall constitute any consent or request by
the Mortgagee, express or implied, for 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, or shall be construed to permit the making of any
claim against the Mortgagee in respect of labor or services or the furnishing of
any materials or other property or any claim that any lien based on the
performance of such labor or services or the furnishing of any such materials or
other property is prior to the lien of this Mortgage.
5.11. Waiver of Right to Bring Counterclaim in Foreclosure Action.
----- -----------------------------------------------------------
In any action to foreclose the lien or liens of this Mortgage, including a
partial foreclosure, no defense, counterclaim, or setoff shall be available to
the Mortgagor other than a compulsory counterclaim or one which denies the
existence or sufficiency of the facts upon which the action is grounded. If any
defense, counterclaim or setoff, other than one permitted by the preceding
sentence, is timely raised in such foreclosure action, such defense,
counterclaim, or setoff shall be dismissed; provided, however, that if such
-------- -------
defense, counterclaim, or setoff is based on a claim which could be tried in an
action for money damages, such claim may be brought in a separate action which
shall not thereafter be consolidated with such foreclosure action. The bringing
of such separate action for money damages shall not be deemed to afford any
grounds for staying the foreclosure action. Any assignee of this Mortgage and
the Notes shall take the same free and clear of all offsets, counterclaims, or
defenses of any nature whatsoever which the Mortgagor may have against any
assignor of this Mortgage and the Notes and no such offset, counterclaim, or
defense shall be interposed or asserted by the Mortgagor in any action or
proceeding brought by any such assignee upon this Mortgage or the Notes and any
such right to interpose or assert any such offset, counterclaim, or defense in
any such action or proceeding is hereby expressly waived by the Mortgagor. In
addition, the Mortgagor shall not make, nor be entitled to make, any claim for
money damages against the Mortgagee based upon any claim or assertion that the
Mortgagee has unreasonably withheld or delayed the Mortgagee's consent and/or
approval with respect to any provision contained in the Notes, this Mortgage or
the other Security Documents which provides, in effect, that the Mortgagee's
consent and/or approval is required and shall not be unreasonably withheld or
delayed. The Mortgagor's sole remedy in such event shall be limited to an
action or proceeding to enforce any such provision pursuant to specific
performance, injunction, or declaratory judgment.
26
5.12. Usury Laws.
----- ----------
It is the intent of the Mortgagor and the Mortgagee to comply at all times with
applicable usury laws. If at any time such laws would render usurious any
amounts called for under the Notes or any of the Security Documents, then it is
the Mortgagor's and the Mortgagee's express intention that such excess amount be
immediately credited on the principal balance of the Notes (or, if the Notes
have been fully paid, refunded by the Mortgagee to the Mortgagor and the
Mortgagor shall accept such refund), and the provisions hereof and thereof be
immediately deemed to be reformed to comply with the then applicable laws,
without the necessity of the execution of any further documents, but so as to
permit the recovery of the fullest amount otherwise called for hereunder and
thereunder. Any such crediting or refund shall not cure or waive any default by
the Mortgagor under the Notes or under the Security Documents. If, at any time
following any such reduction in the interest rate payable by the Mortgagor,
there remains unpaid any principal amounts under the Notes and the maximum
interest rate permitted by applicable law is increased or eliminated, then the
interest rate payable hereunder shall be readjusted, to the extent permitted by
applicable law, so that the total dollar amount of interest payable hereunder
shall be equal to the dollar amount of interest which would have been paid by
the Mortgagor without giving effect to the applicable usury laws theretofore in
effect. The Mortgagor agrees, however, that in determining whether or not any
interest payable under the Notes or any of the Security Documents exceeds the
highest rate permitted by law, any non-principal payment (except payments
specifically stated in the Notes or in any Security Document to be "interest"),
including, without limitation, prepayment fees and late charges, shall be
deemed, to the extent permitted by law, to be an expense, fee, premium, or
penalty rather than interest.
5.13. FIRPTA.
----- ------
If the Mortgagee purchases the Mortgaged Property pursuant to a foreclosure
under this Mortgage, or accepts an assignment of the Mortgaged Property in lieu
of the foreclosure, the Mortgagor hereby authorizes the Mortgagee to withhold
the amount of tax, if any, required to be withheld under Section 1445 of the
Internal Revenue Code of 1986, as amended (or any successor provision thereto),
out of any sums payable to the Mortgagor from such foreclosure sale or
assignment in lieu thereof, as the case may be, after payment of all parties
other than the Mortgagor who are entitled to be paid out of any foreclosure or
assignment proceeds, as if the Mortgagor were a foreign person, unless the
Mortgagor certifies its nonforeign status at the time of such foreclosure sale
or assignment, as the case may be, by executing and delivering to the Mortgagee
a certificate satisfactory to the Mortgagee.
5.14. Conflicts with Indenture.
----- ------------------------
Notwithstanding any other provision hereof, in the event of any conflict between
the terms of this Mortgage and the Indenture, the provisions of the Indenture
will apply.
5.15. Trust Funds.
----- -----------
The Mortgagor shall receive the advances secured hereby subject to the trust
fund provisions of Section 13 of the Lien Law of the State of New York.
27
5.16. Miscellaneous.
----- -------------
All the terms of this Mortgage shall apply to and be binding upon and inure to
the benefit of the successors and assigns of the Mortgagor and all persons
claiming under or through the Mortgagor or any such successor or assign and the
Mortgagee and its successors in interest. The headings in this Mortgage are for
convenient reference only and shall not limit or otherwise affect any of the
terms hereof. This Mortgage may be executed in several counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument. This Mortgage is to be construed according to the laws of the State
of New York. The clauses and covenants contained in this Mortgage which are
construed by Section 254 of the Real Property Law of the State of New York shall
be construed as provided in those sections, except that the provisions of
subsection 4 of said Section 254 shall not in any manner apply to or construe
the provisions of this Mortgage; the additional clauses and covenants contained
herein shall afford rights supplemental to and not exclusive of the rights
conferred by the clauses and covenants construed by said Section 254 and shall
not impair, modify, alter or defeat such rights (except that the provisions
hereof shall be exclusive of and shall be in substitution for the rights which
would be conferred by the clauses and covenants construed by said subsection 4
of said Section 254), notwithstanding that such additional clauses and covenants
may relate to the are subject matter or provide for different or additional
rights in the same or similar contingencies as the clauses and covenants
construed by said Section 254; in the event of any inconsistencies between the
provisions of Section 254 and the provisions of this Mortgage, the provisions of
this Mortgage shall prevail.
5.17. Mortgagee Waiver and Consent Agreement.
----- --------------------------------------
A Mortgagee Waiver and Consent Agreement, among the Mortgagee, the Mortgagor and
BankBoston Retail Finance, Inc. exists with respect to the Mortgaged Property.
5.18. WAIVER OF JURY TRIAL.
----- --------------------
BOTH THE MORTGAGOR AND THE MORTGAGEE HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS MORTGAGE.
28
IN WITNESS WHEREOF, this Mortgage has been duly executed by the
Mortgagor on the day and year first above written.
WITNESS: NEW HORIZONS OF YONKERS, INC.
By By
----------------------------- ------------------------------
Title: Xxxxxxxxx X. Xxxxx, III
Senior Vice President and
Chief Financial Officer
By By
----------------------------- ------------------------------
Title: Xxxxx X. Xxxxxxx
Senior Vice President and
General Counsel
[Corporate Seal]
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this 29th day of January, 1999, before me, the undersigned officer,
personally appeared Xxxxxxxxx X. Xxxxx, III, having an address c/o New Horizons
of Yonkers, Inc., Xxx Xxxxxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxxxxxx
00000, personally known and acknowledged himself to me to be the Senior Vice
President and Chief Financial Officer of New Horizons of Yonkers, Inc., and that
as such officer, being duly authorized to do so pursuant to its bylaws or a
resolution of its board of directors, executed, subscribed and acknowledged the
foregoing instrument for the purposes therein contained, by signing the name of
the corporation by himself in his authorized capacity as such officer as his
free and voluntary act and deed and the free and voluntary act and deed of said
corporation.
IN WITNESS WHEREOF, hereunto set my hand and official seal.
Notary Public
NOTARIAL SEAL
My Commission Expires:
/s/
----------------------
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this 29th day of January, 1999, before me, the undersigned officer,
personally appeared Xxxxx X. Xxxxxxx, having an address c/o New Horizons of
Yonkers, Inc., Xxx Xxxxxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxxxxxx
00000, personally known and acknowledged himself to me to be the Senior Vice
President and General Counsel of New Horizons of Yonkers, Inc., and that as such
officer, being duly authorized to do so pursuant to its bylaws or a resolution
of its board of directors, executed, subscribed and acknowledged the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by himself in his authorized capacity as such officer as his free
and voluntary act and deed and the free and voluntary act and deed of said
corporation.
IN WITNESS WHEREOF, hereunto set my hand and official seal.
Notary Public
NOTARIAL SEAL
My Commission Expires:
/s/
--------------------------
31
Schedule A
----------
Lease
32
TABLE OF CONTENTS
Page
----
ARTICLE I PAYMENT OF TAXES, INSURANCE, ETC........................... 5
1.1. Certain Definitions........................................ 5
1.2. Payment of Taxes and Claims................................ 5
1.3. Compliance with Insurance Requirements Instruments......... 5
1.4. Compliance with Laws....................................... 5
1.5. Government Approvals....................................... 5
1.6. Liens...................................................... 5
1.7. The Lease.................................................. 5
1.8. Utility Services........................................... 6
1.9. Maintenance and Repair, etc................................ 6
1.10. Alterations, Changes, etc.................................. 6
1.11. Acquired Property Subject to Lien.......................... 7
ARTICLE II COVENANTS OF THE MORTGAGOR................................. 7
2.1. Compliance with Indenture.................................. 7
2.2. Obligations Secured by Mortgage............................ 7
2.3. Prohibitions on Sale Transfer etc.......................... 8
2.4. Recordation................................................ 8
2.5. No Waste................................................... 8
2.6. Inspection, etc............................................ 8
2.7. Notice of Event of Default, Default or Claimed Default..... 9
2.8. No Credit for Payment of Taxes............................. 9
2.9. Use of Mortgagee's Name.................................... 9
2.10. The Lease.................................................. 9
2.11. The Easements.............................................. 13
ARTICLE III EMINENT DOMAIN, INSURANCE PROCEEDS, ETC.................... 14
3.1. Damage, Destruction or Taking; the Mortgagor to
Give Notice; Assignment of Awards.......................... 14
3.2. Application of Insurance Proceeds.......................... 15
3.3. Application of Awards, etc................................. 15
ARTICLE IV EVENTS OF DEFAULT.......................................... 15
4.1. Events of Default; Indebtedness Due........................ 15
4.2. Enforcement; Foreclosure................................... 16
4.3. Power of Sale.............................................. 17
4.4. The Mortgagee Authorized to Execute Deeds, etc............. 17
4.5. Purchase of Mortgaged Property by the Mortgagee............ 17
4.6. Receipt a Sufficient Discharge to Purchaser................ 17
4.7. Waiver of Appraisement, Valuation, etc..................... 18
4.8. Sale a Bar Against the Mortgagor........................... 18
4.9. Application of Proceeds of Sale and Other Monies........... 18
4.10. Appointment of Receiver.................................... 18
4.11. Possession, Management and Income.......................... 19
4.12. Right to Perform the Mortgagor's Covenants................. 19
4.13. Cumulative Remedies........................................ 19
4.14. Provisions Subject to Applicable Law....................... 20
4.15. No Waiver.................................................. 20
4.16. Compromise of Actions...................................... 21
4.17. Expenses Incurred in Protecting or Enforcing Rights........ 21
4.18. Power of Attorney.......................................... 22
ARTICLE V FINANCING STATEMENT AND MISCELLANEOUS PROVISIONS........... 22
5.1. Further Assurances......................................... 22
5.2. Fixtures; Financing Statement.............................. 22
5.3. Assignment of Leases, Rents and Profits.................... 23
5.4. Partial Release............................................ 24
5.5. Release and Discharge of Mortgage.......................... 24
5.6. Mortgagor, Mortgagee, Person(s)............................ 25
5.7. Cessation of Mortgagor's Interest.......................... 25
5.8. Notices.................................................... 25
5.9. No Merger of Fee and Leasehold Estates..................... 25
5.10. No Claims Against the Mortgagee, etc....................... 26
5.11. Waiver of Right to Bring Counterclaim in
Foreclosure Action......................................... 26
5.12. Usury Laws................................................. 27
5.13. FIRPTA..................................................... 27
5.14. Conflicts with Indenture................................... 27
5.15. Trust Funds................................................ 27
5.16. Miscellaneous.............................................. 28
5.17. Mortgagee Waiver and Consent Agreement..................... 28
5.18. WAIVER OF JURY TRIAL....................................... 28
SCHEDULE A - Lease
