Exhibit 99.16
SATISFACTION: The indebtedness
secured by this Leasehold Mortgage
has been satisfied in full.
By: _______________________
Name: _____________________
Title:_____________________
Date: _____________________
This instrument was prepared
by and when recorded please
return to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
Suite 0000
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-4006
LEASEHOLD MORTGAGE
[NEW YORK]
This Leasehold Mortgage is made and entered into as of this 21 day
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of July, 1995, by and among ACC SYRACUSE TELECOM CORP., a New York corporation
("Mortgagor"), and FIRST UNION NATIONAL BANK OF NORTH CAROLINA ("Mortgagee"), as
Administrative Agent for the financial institutions (the "Lenders") as are, or
may from time to time become, parties to the Credit Agreement (as defined
below).
WHEREAS, certain Affiliates of Mortgagor are indebted to the Lenders
in the principal sum of up to Thirty-Five Million Dollars ($35,000,000), as
evidenced by the Notes of even date executed by such Affiliates in favor of the
Lenders, and such other documents as may have been executed or given by such
Affiliates in connection with the transactions contemplated by the Credit
Agreement of even date between such Affiliates as Borrowers thereunder
(collectively, the "Borrowers"), the Lenders and the Mortgagee, as
Administrative Agent for the Lenders (as amended or supplemented, the "Credit
Agreement", and collectively with the Notes and such other documents, the "Loan
Documents"), the terms and conditions of which are incorporated herein by
reference;
NOW, THEREFORE, as security for the payment and performance of up to
$250,000 of the Obligations (as defined in the Credit Agreement), the Mortgagor
has created a security interest in, bargained, sold, given, granted, assigned
and conveyed and does by these presents create a security interest in, bargain,
sell, give, grant, assign and convey unto the Mortgagee, its or his successors
and assigns, all of Xxxxxxxxx's right, title and interest in and to that certain
leasehold estate under a lease agreement (as amended or supplemented, the
"Lease"), dated December 28, 1993, between the Mortgagor and State Tower of
Syracuse
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Associates, L.P., of the Premises commonly known as Suite 206 State Tower
Building, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx (the "Leasehold Estate"),
which is more particularly described on Exhibit A attached hereto and
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incorporated herein by reference.
TO HAVE AND TO HOLD the Leasehold Estate described herein unto the
Mortgagee, its heirs and successors in interest forever.
THIS CONVEYANCE IS MADE UPON THIS SPECIAL TRUST, that if the
Affiliates of Mortgagor shall satisfy all Obligations secured hereby, and shall
comply with all of the covenants, terms and conditions of this Leasehold
Mortgage and the Loan Documents, then this conveyance shall be null and void and
shall be canceled of record at the request and cost of Mortgagor. But if at any
time there shall be any default in satisfaction of any Obligations or under this
instrument or under the terms and conditions of any instrument secured hereby,
which default shall not have been cured within any applicable grace period (if
any) provided therefor, then, at the option of Mortgagee, with the consent of
the Required Lenders, the entire indebtedness hereby secured shall immediately
become due, payable and collectible without further notice, regardless of
maturity, and this Mortgage may be foreclosed by judicial proceedings, or the
Mortgagee is hereby authorized and empowered to expose to sale and to sell the
Leasehold Estate described herein at public sale for cash, in compliance with
the requirements of Article 14 of the New York Real Property Actions and
Proceedings Laws, or any subsequently enacted statute relating to nonjudicial
foreclosure sales in effect on the date foreclosure is commenced, and at the
time and place fixed for the sale to sell the Leasehold Estate described herein
to the highest bidder for cash, and Mortgagee shall execute a conveyance of said
Leasehold Estate to and deliver possession of same to the purchaser. Mortgagee
may bid and become the purchaser at any sale under this Leasehold Mortgage. The
proceeds of the sale shall, after the Mortgagee retains a reasonable
compensation, together with reasonable attorneys' fees incurred by Mortgagee in
such proceeding, be applied first to the payment of the costs and expenses of
such sale; second, to the payment to the whole amount of Obligations then owing
by the Affiliates of Mortgagor to the Lenders and secured hereby; and third to
the payment of the surplus, if any, to the Mortgagor or to whomever else may be
lawfully entitled thereto.
This Leasehold Mortgage is made as additional collateral to secure the
payment and performance of the Obligations. Other terms capitalized but not
otherwise defined herein shall have the meanings ascribed thereto in the Credit
Agreement.
XXXXXXXXX ACKNOWLEDGES, COVENANTS AND AGREES WITH MORTGAGEE AS FOLLOWS:
1. Mortgagor represents and warrants that there have been no prior
encumbrances, conveyances or assignments of its interest in the Lease which are
still in effect, and that the Lease is a valid and enforceable agreement, that
neither Mortgagor nor, to its knowledge, any other party, is in material default
thereunder and that all covenants, conditions
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and agreements have been performed as required therein, except those not due to
be performed until after the date hereof.
2. No change in the terms of the Lease shall be valid without the
written approval of Mortgagee, with the consent of the Required Lenders, and
Mortgagor shall not assign, sell, pledge, mortgage or otherwise transfer or
encumber its interest in the Lease so long as this Leasehold Mortgage is in
effect except as permitted by the Credit Agreement.
3. Mortgagor shall give prompt notice to Mortgagee of any notice of
default received by it under the Lease, together with a complete copy of any
such notice of default.
4. Mortgagor shall perform each and all of the covenants and
obligations of the tenant under the Lease for so long as this Leasehold Mortgage
is in effect, including, without limitation, the obligations to maintain,
rebuild and insure the improvements which constitute a portion of the premises
thereunder.
5. Should Mortgagor fail to make any payment or to do any act as
herein provided, then Mortgagee may, but without obligation to do so and without
notice to or demand on Mortgagor and without releasing Mortgagor from any
Obligation, make or do the same, including, without limitation, appearing in and
defending any action purporting to affect the security hereof or the rights or
powers of Mortgagee hereunder and performing any obligation of Mortgagor under
the Lease, and in exercising any such powers, paying all necessary costs and
expenses, including, without limitation, attorneys' fees. Xxxxxxxxx will pay
immediately upon demand all sums expended by Mortgagee under the authority
hereof, and the same shall be added to the Obligations and shall be secured
hereby and by the Loan Documents.
6. Upon the occurrence and continuation of an Event of Default,
Mortgagee may, with the consent of the Required Lenders, at its option, without
notice and without regard to the adequacy of security for the Obligations,
either in person or by agent and with or without bringing any action or
proceeding, or by a receiver to be appointed by a court, enter upon, take
possession of, and operate the premises which are the subject of the Lease,
make, enforce, modify and accept any provision of, or surrender, the Lease, and
do any other act or acts which Mortgagee deems proper to protect the security
hereof until all Obligations have been paid or performed in full. The entering
upon and taking possession of such premises shall not cure or waive any default
or waive, modify or affect any notice of default under the Credit Agreement or
any other security instrument, nor invalidate any act done pursuant to any such
notice.
7. Mortgagor hereby irrevocably constitutes and appoints Mortgagee
as its attorney-in-fact to demand, receive, and enforce Mortgagor's rights with
respect to the Lease for and on behalf of and in the name of Mortgagor or, with
the same force and effect as Mortgagor could do if this Leasehold Mortgage had
not been made. Mortgagee may, without affecting any of its rights or remedies
against Mortgagor under any other instrument, document or agreement, exercise
its rights under this Leasehold Mortgage as Mortgagor's attorney-in-fact in any
other manner permitted by law, and in addition Mortgagee shall have and possess,
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without limitation, any and all rights and remedies of a secured party under the
Uniform Commercial Code or otherwise as provided by law.
8. At Mortgagor's sole cost and expense, Xxxxxxxxx will appear in
and defend any action growing out of or in any manner connected with the Lease
or the obligations or liabilities or Mortgagor thereunder. In addition,
Xxxxxxxxx shall indemnify and hold Mortgagee harmless from and against any and
all claims, demands, liabilities, losses, lawsuits, judgments, and costs and
expenses, including, without limitation, reasonable attorneys' fees to which
Mortgagee may become exposed or which Mortgagee may incur in exercising any of
its rights under this Leasehold Mortgage.
9. This Leasehold Mortgage is for security purposes only.
Accordingly, Mortgagee shall not have the right under this Leasehold Mortgage to
enforce the provisions of said Lease or exercise rights hereunder unless and
until there shall have occurred an Event of Default.
10. Subject to the limitation on further assignment by Xxxxxxxxx set
forth above, this Leasehold Mortgage shall be binding upon and inure to the
benefit of the legal representatives, assigns and successors in interest of
Xxxxxxxxx and Mortgagee, including any subsequent holders of Notes.
11. All notices hereunder shall be sent to the addresses and pursuant
to the procedures set forth in Section 13.1 of the Credit Agreement.
12. Mortgagor warrants and represents that it is the Lessee of the
Leasehold Estate under the Lease; such Leasehold Estate is free and clear of all
liens, charges and encumbrances whatsoever, except those which have been
approved by Mortgagee; and Xxxxxxxxx has full right and power to make this
conveyance.
13. In addition to the rights and remedies set forth herein,
Mortgagee shall have all rights and remedies set forth in the Loan Documents.
IN WITNESS WHEREOF, Xxxxxxxxx has executed and sealed this Leasehold
Mortgage this 10 day of July, 1995.
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ACC SYRACUSE TELECOM CORP.
[CORPORATE SEAL] By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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ATTEST:/s/ Xxxxxx X. Xxxxxx Title: Controller
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Name: Xxxxxx X. Xxxxxx
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Title: Asst. Secretary
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STATE OF NORTH CAROLINA)
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)
COUNTY OF MECKLENBURG )
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I, Xxxxx X. Xxxxx, a Notary Public of the county and state aforesaid,
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certify that Xxxxxx X. Xxxxxx personally came before me this day and
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acknowledged that (s)he is Assistant Secretary of ACC SYRACUSE TELECOM CORP., a
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New York corporation, and that by authority duly given and as the act of the
corporation, the foregoing instrument was signed in its name by its Controller,
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sealed with its corporate seal and attested by himself as its Assistant
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Secretary.
WITNESS my hand and official stamp, this 10th day of July, 1995.
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/s/ Xxxxx X. Xxxxx
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Notary Public
My commission expires:
August 5, 1997
Exhibit A
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to
Leasehold Mortgage
between
ACC Syracuse Telecom Corp.
and
First Union National Bank of North Carolina,
as Administrative Agent
Description of Leased Premises
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Suite 206
State Tower Building
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx
ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, with the buildings and
improvements thereon created, situate, lying and being in the City of Syracuse,
County of Onondaga, and State of New York, known and designated as Lots Nos. 1,
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2, 3, 4, 5, 6, 7, part of 19 and Lot 20, the latter Lot also known as Lot A,
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all being in Block 103 in said City, bounded and described as follows:
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Beginning at the intersection of the east line of South Xxxxxx Street and the
south line of East Water Street, thence south 0 degrees 03 30" west on the east
line of South Xxxxxx Street, 67.68 feet to the northerly line of East Genesee
Street; thence south 59 degrees 45' 20" east along the northeasterly line of
East Genesee Street, 196.49 feet; thence north 29 degrees 58' 40" east 79.51
feet to a point; thence north 0 degrees 26' 20" west 1.42 feet; thence north
30 degrees 14' 40" east 15.69 feet to a point; thence north 0 degrees 26'29"
east 0.67 feet to a point, thence south 89 degrees 33' 40" east 1.21 feet to a
point; thence south 0 degrees 26' 20" east 5.33 feet to a point in the south
line of Falker property; thence north 0 degrees 03' 40" west 75 feet to the
south line of East Water Street; thence north 89 degrees 33' 40" west along the
southerly line of East Water Street 217.83 feet to the point and place of
beginning.
