EXHIBIT 4.113
Prepared by and mail to:
Xxxxxxxx Chance US LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
DU PAGE COUNTY, ILLINOIS
LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT, FINANCING STATEMENT AND FIXTURE FILING
THIS LEASEHOLD MORTGAGE (this "Instrument") entered into as of
the 15th day of May, 2003 but effective as of the 19th day of May, 2003 by
MARCONI COMMUNICATIONS, INC. (formerly known as Reltec Corporation), a Delaware
corporation ("Mortgagor"), having an address at c/o Marconi Corporation plc, Xxx
Xxxxxx Xxxxxx, Xxxxxx X0X 0XX Xxxxxx Xxxxxxx, to THE LAW DEBENTURE TRUST
CORPORATION p.l.c., a public limited company organized under the laws of England
and Wales, as Security Trustee for the Secured Creditors (as defined in the
Intercreditor Agreement) (together with any co-trustee, co-agent or other entity
appointed pursuant to clause 16 of the Intercreditor Agreement (as defined
below)) ("Mortgagee") under the Security Trust and Intercreditor Deed dated the
date hereof and made among Marconi Corporation plc as Issuer; Beneficiary; the
persons listed in Schedule 1 thereto as Guarantors; Law Debenture Trust Company
of New York as Senior Note Trustee; JPMorgan Chase Bank as Junior Note Trustee;
HSBC Bank plc as New Bonding Facility Agent; The Bank of New York as Depositary,
Paying Agent and Registrar; the persons listed in Part A Schedule 2 thereto as
Intra-Group Creditors; the persons listed in Part B Schedule 2 thereto as
Intra-Group Borrowers and the persons listed in Schedule 3 thereto as New
Bonding Facility Banks (as amended, modified or supplemented from time to time,
the "Intercreditor Agreement"), having an address at Xxxxx Xxxxx, 000 Xxxx
Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx. Capitalized terms used herein without
definition shall have the respective meanings assigned to such terms in the
Intercreditor Agreement.
W I T N E S S E T H:
WHEREAS, Mortgagor is a United States wholly-owned subsidiary
of Marconi Corporation, plc (the "Issuer"), which is the Issuer under the
Indentures, the Notes and the New Bonding Facility Agreement;
WHEREAS, as of the date hereof and in favor of Mortgagee,
Mortgagor has entered into a Guarantee of the Senior Notes and Senior Note
Indenture, a Guarantee of the Junior Notes and the Junior Note Indenture and a
Composite Guarantee of certain other obligations under the Relevant Documents,
including the New Bonding Facility Agreement (collectively, the "Guarantees"),
pursuant to which Mortgagor has agreed to guarantee the "Guaranteed Obligations"
(as such term is defined in each of the Guarantees) and has agreed to secure the
Guaranteed Obligations and other obligations;
WHEREAS, Mortgagor has received substantial benefit from the
Secured Obligations (as defined below) secured hereby, which consist of, among
other things, term notes and a revolving bonding facility, have been made in the
aggregate principal amount of up to One Billion Two Hundred Eighty-
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Four Million Nine Hundred Twenty-Five Thousand and No/100 Dollars (U.S.
$1,284,925,000.00) with a maturity date of October 31, 2008;
WHEREAS, Mortgagor is the lessee under that certain lease
dated as of July 22, 1997 by and between XxXxxxx Corporation, predecessor in
interest to Xxxxxx Parkway, L.L.C., as landlord, and Mortgagor
(successor-in-interest to Reltec Corporation), as tenant, as amended by that
certain First Amendment to Lease dated March 3, 1998 and as further amended by
that certain Second Amendment to Lease dated as of May 30, 2001 (the "Xxxxxx
Lease") a memorandum of which Xxxxxx Lease was recorded on July 24, 1998 as
Document R98-148129 in the Recorder of Du Page County, with regard to the real
estate (the "Land") further described on Exhibit "A" attached hereto, located in
Du Page County, Illinois (the "State"); and
WHEREAS, Mortgagee and the Secured Creditors have required
that Mortgagor execute and deliver this Instrument (i) in order to secure the
prompt and complete payment, observance and performance of all of the Secured
Obligations (as defined below) and (ii) as a condition precedent to Mortgagee
and the Secured Creditors entering into the Relevant Documents.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
GRANTING CLAUSE
To secure the payment in full of the Secured Obligations (as
hereinafter defined), Mortgagor has bargained, sold, given, granted and conveyed
and does hereby bargain, sell, grant, remise, release, and convey, mortgage and
warrant to Mortgagee, its successors and assigns, and grant a security interest
to Mortgagee, its successors and assigns, in and to its interest in the
following real property and personal property which Mortgagor may now have or
hereafter acquire (the "Mortgaged Property"):
All improvements, buildings and structures on the Land of
every nature whatsoever (herein collectively, called the "Improvements").
TOGETHER WITH all of Mortgagor's right, title and interest in
the Xxxxxx Lease and the leasehold estate conveyed thereby (the "Leasehold
Estate").
TOGETHER WITH all right, title and interest, if any, including
ny after-acquired right, title and interest, and including any right of use or
occupancy, which Mortgagor may now have or hereafter acquire in and to (a) all
easements, rights of way, gores of land or any lands occupied by streets, ways,
alleys, passages, sewer rights, air rights, development rights, water courses,
water rights and powers, and public places adjoining said Land, and any other
interests in property constituting appurtenances to the Land or Improvements, or
which hereafter shall in any way belong, relate or be appurtenant thereto and
(b) all hereditaments, gas, oil, minerals (with the right to extract, sever and
remove such gas, oil and minerals), and easements, of every nature whatsoever,
located in or on the Land or Improvements and all other rights and privileges
thereunto belonging or appertaining and all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to, or of any rights and
interests described in subparagraph (a) above and this subparagraph (b)
(hereinafter collectively called the "Property Rights").
TOGETHER WITH all xxxxxxxxxx xxxxx, xxxxxxx and development
rights hereafter acquired by Mortgagor for use in connection with and the
development of the Land, the Improvements or
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the Property Rights and all additional lands and estates therein which may, from
time to time, by supplemental mortgage or otherwise, be expressly made subject
to the lien of this Instrument.
TOGETHER WITH all right, title and interest, if any, including
any after-acquired right, title and interest which Mortgagor may now or
hereafter acquire in and to fixtures and appurtenances of every nature
whatsoever now or hereafter located in, on or attached to, and used or intended
to be used in connection with, or with the operation of, the Land and
Improvements, including, but not limited to, (a) all apparatus, machinery, and
equipment of Mortgagor; (b) all extensions, additions, improvements,
betterments, renewals, substitutions, and replacements to or of any of the
foregoing (the items described in the foregoing (a) and (b) being the
"Fixtures"); and (c) all personal property and equipment of every nature
whatsoever now or hereafter located in or on the Land, including, but not
limited to, (i) all screens, window shades, blinds, wainscoting, storm doors and
windows, floor coverings, and awnings of Mortgagor; (ii) all apparatus,
machinery, equipment and appliances of Mortgagor not included as Fixtures; (iii)
all items of furniture, furnishings, and personal property of Mortgagor; and
(iv) all extensions, additions, improvements, betterments, renewals,
substitutions, and replacements to or of any of the foregoing (i)-(iii) (the
items described in the foregoing (i)-(iv) and any other personal property
referred to in this paragraph being the "Personal Property") and in and to the
proceeds of the Personal Property. It is mutually agreed, intended and declared
that the Improvements and all of the Property Rights and Fixtures owned by
Mortgagor (referred to collectively herein as the "Real Property") shall, so far
as permitted by law, be deemed to form a part and parcel of the Land and for the
purpose of this Instrument to be real estate and covered by this Instrument. It
is also agreed that if any of the property herein conveyed is of a nature so
that a security interest therein can be perfected under the Uniform Commercial
Code as enacted by the State ("UCC"), this Instrument shall constitute a
security agreement, fixture filing and financing statement, and Mortgagor agrees
to execute, deliver and file or refile any financing statement, continuation
statement, or other instruments Mortgagee may require from time to time to
perfect or renew such security interest under the UCC. To the extent permitted
by law, (x) all of the Fixtures are or are to become fixtures on the Land; and
(y) this Instrument, upon recording or registration in the real estate records
of the proper office, shall constitute a "fixture-filing" within the meaning of
Sections 9-334 and 9-502 of the UCC. Subject to the terms and conditions of the
Intercreditor Agreement, the remedies for any violation of the covenants, terms
and conditions of the agreements herein contained shall be as prescribed herein
or by general law, or, as to that part of the security in which a security
interest may be perfected under the UCC, by the specific statutory consequences
now or hereafter enacted and specified in the UCC, all at the Mortgagee's sole
election.
TOGETHER WITH all the estate, right, title and interest of the
Mortgagor, in and to all (i) judgments, insurance proceeds, unearned premiums,
awards of damages and settlements, and any interest thereon, resulting from
condemnation proceedings or the taking of the Real Property, or any part
thereof, under the power of eminent domain or for any damage (whether caused by
such taking or otherwise) to the Real Property, the Personal Property or any
part thereof, or to any rights appurtenant thereto, and all proceeds of any
sales or other dispositions of the Real Property, the Personal Property or any
part thereof; and (subject to the terms of the Intercreditor Agreement) the
Mortgagee is hereby authorized to collect and receive said awards and proceeds
and to give proper receipts and acquittances therefor, and to apply the same as
provided in the Intercreditor Agreement; (ii) contract rights, general
intangibles, actions and rights in action, relating to the Real Property or the
Personal Property, including, without limitation, all rights to insurance
proceeds and unearned premiums arising from or relating to damage to the Real
Property or the Personal Property; and (iii) proceeds, products, replacements,
additions, substitutions, renewals and accessions of and to the Real Property or
the Personal Property. (The rights and interests described in this paragraph
shall hereinafter be collectively called the "Intangibles.")
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As additional security for the Secured Obligations, Mortgagor
does (i) hereby absolutely, continually and unconditionally presently pledge and
assign to Mortgagee from and after the date hereof (including any period of
redemption), primarily and on a parity with said real estate, and not
secondarily, all the rents, issues and profits of the Real Property and all
rents, issues, profits, revenues, royalties, bonuses, rights and benefits due,
payable or accruing (including all deposits of money as advance rent, for
security or as xxxxxxx money or as downpayment for the purchase of all or any
part of the Real Property or the Personal Property) (the "Rents") under any and
all present and future leases, contracts or other agreements relating to the
ownership of the Real Property or the Personal Property or to the occupancy of
all or any portion of the Real Property and, (ii) except to the extent such a
transfer or assignment is not permitted by the terms thereof (and a consent to
the transfer or assignment has not been obtained), does hereby transfer and
assign to Mortgagee all such leases, contracts and agreements (including all
Mortgagor's rights (x) under any contracts for the sale of any portion of the
Mortgaged Property (as hereinafter defined) and (y) to all revenues and
royalties under any oil, gas and mineral leases relating to the Real Property)
(the "Leases"). Mortgagee hereby grants to Mortgagor the right and license to
occupy the Mortgaged Property as landlord or otherwise and to collect, use and
enjoy the Rents as they become due and payable under the Leases, but not more
than one (1) month in advance thereof, so long as no Trigger Event shall have
occurred, provided that the existence of such right shall not operate to
subordinate this assignment to any subsequent assignment, in whole or in part,
by Mortgagor, and any such subsequent assignment shall be subject to the rights
of Mortgagee under this Instrument. Mortgagor further agrees to execute and
deliver such assignments of leases or assignments of land sale contracts as
Mortgagee may from time to time request solely for the purpose of creating,
protecting, perfecting, or maintaining an enforceable lien thereon and an
enforceable and valid assignment of Leases and Rents. Upon the occurrence of a
Trigger Event, (i) the Mortgagor agrees, upon demand, to deliver to the
Mortgagee all of the Leases with such additional assignments thereof as the
Mortgagee may request and agrees that the Mortgagee may assume the management of
the Real Property and collect the Rents (provided that such assumption of
management shall be done solely to the extent necessary to collect the Rents in
the event of a Material Default), applying the Rents upon the Secured
Obligations (as defined below) in the manner provided in the Intercreditor
Agreement, and (ii) the Mortgagor hereby authorizes and directs all tenants,
purchasers or other persons occupying or otherwise acquiring any interest in any
part of the Real Property to pay the Rents due under the Leases to the Mortgagee
upon request of the Mortgagee. Mortgagor hereby appoints Mortgagee as its true
and lawful attorney-in-fact to manage said property and collect the Rents, with
full power to bring suit for collection of the Rents and possession of the Real
Property (provided that such possession shall be taken solely to the extent
necessary to collect such Rents in the event of a Material Default), giving and
granting unto said Mortgagee and unto its agent or attorney full power coupled
with an interest and authority to do and perform all and every act and thing
whatsoever requisite and necessary to be done in the protection of the security
hereby conveyed, including, without limitation, the right to exercise
Mortgagor's renewal options under the Xxxxxx Lease (provided that such acts
shall be limited to those necessary to collect the Rents in the event of a
Material Default); provided, however, that (i) this power of attorney and
assignment of Rents shall not be construed as an obligation upon said Mortgagee
to make or cause to be made any repairs that may be needful or necessary, and
(ii) Mortgagee agrees that so long as no Trigger Event shall have occurred,
Mortgagee shall permit Mortgagor to perform the aforementioned management
responsibilities. Upon Mortgagee's receipt of the Rents, at Mortgagee's option,
it may: (i) pay charges for collection hereunder, costs of necessary repairs and
other costs requisite and necessary during the continuance of this power of
attorney and assignment of Rents, (ii) pay general and special taxes, insurance
premiums, and, thereafter, (iii) distribute the balance of the Rents pursuant to
the provisions of the Intercreditor Agreement. This power of attorney and
assignment of rents shall be irrevocable until this Instrument shall have been
satisfied and released of record and the releasing or reconveyance of this
Instrument shall act as a revocation of this power of attorney and assignment of
rents. Subject to Mortgagee's grant to Mortgagor of the collection and use of
the Rents set forth above, Mortgagee shall have and hereby expressly
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reserves the right and privilege (but assumes no obligation) to demand, collect,
xxx for, receive and recover the Rents, or any part thereof, now existing or
hereafter made, and apply the same in accordance with the provisions of the
Intercreditor Agreement. For purposes of this Instrument, a "Trigger Event"
shall mean (i) an Enforcement Event or (ii) a "Material Default" which for
purposes of this Instrument shall mean any event that is (A) an Insolvency Event
which is also an Event of Default or (B) any Event of Default that the
Instructing Trustee notifies and instructs the Mortgagee to act in response to
pursuant to the Intercreditor Agreement. Notwithstanding anything herein, upon
an Enforcement Event, Mortgagee shall have the absolute right and option to
exercise any and all rights and remedies provided for in this Instrument and
available at law or in equity.
As used herein, "Secured Obligations" means all present and
future indebtedness, liabilities and obligations (for the avoidance of doubt,
including any liabilities and obligations that have been cash-collateralized by
the Mortgagor), at any time of Mortgagor under the Relevant Documents (including
this Instrument), including any liability in respect of any further advances, if
any, made under the Relevant Documents, both actual and contingent and whether
incurred solely or jointly or in any other capacity together with any of the
following matters relating to or arising in respect of those liabilities and
obligations: (1) any refinancing, novation, deferral or extension; (2) any
obligation relating to any increase in the amount of such obligations; (3) any
claim for damages or restitution; and (4) any claim as a result of any recovery
by Mortgagor of a payment or discharge, or non-allowability, on the grounds of
preference; and any amounts that would be included in any of the above but for
any discharge, non-provability or unenforceability of those amounts in any
insolvency or other proceedings (and including interest accruing after the
commencement of any insolvency or other proceedings).
Nothing herein contained shall be construed as constituting
the Mortgagee or any of its Delegates or any of the Secured Creditors a
mortgagee-in-possession in the absence of the taking of actual possession of the
Mortgaged Property by the Mortgagee or any of its Delegates or any of the
Secured Creditors. Nothing contained in this Instrument shall be construed as
imposing on Mortgagee any of the obligations of the lessor under any lease of
the Mortgaged Property in the absence of an explicit assumption thereof by
Mortgagee. 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 Mortgagor.
TO HAVE AND TO HOLD the Mortgaged Property, properties, rights
and privileges hereby conveyed or assigned, or intended so to be, unto
Mortgagee, its successors and assigns, for the benefit of Mortgagee, its
successors and assigns, forever upon the trusts, terms and conditions and for
the uses and purposes herein set forth. The conveyance of the Mortgaged Property
provided for herein is made upon this special trust. If the Secured Obligations
are paid and performed in full and completely as and when due in accordance with
their respective terms, the conveyance provided for herein shall be released
upon satisfaction of the conditions set forth in Section 5.3 of the
Intercreditor Agreement and shall be thereafter null and void and may be
canceled of record at the request and cost of the Mortgagor and title shall
revest as provided by law. If, however, a Trigger Event shall have occurred,
then Mortgagee shall be entitled to invoke the remedies provided for in the
granting clause above in connection with the assignment of Leases and Rents, and
if an Enforcement Event shall have occurred, then Mortgagee shall, in addition
to all other rights and remedies at law or equity provided, be entitled to
invoke the remedies provided for in Section 4.02 below including without
limitation the right to foreclose this Instrument by judicial proceedings, and
upon such demand by Mortgagee, the Mortgagee shall have the right and the duty
to foreclose this Instrument as herein provided. Mortgagor hereby releases and
waives all rights under and by virtue of the homestead exemption laws of the
State.
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The following provisions shall also constitute an
integral part of this Instrument:
ARTICLE I
[Reserved]
ARTICLE II
COVENANTS OF MORTGAGOR
Section 2.01. [Reserved]
Section 2.02. Leases Affecting the Real Property. All future
lessees under any Lease of the Real Property, or any part thereof, made after
the date of recording of this Instrument shall, at Mortgagee's option and
without any further documentation, attorn to Mortgagee as lessor if for any
reason Mortgagee becomes lessor thereunder, and, thereafter, upon demand, to pay
Rent to Mortgagee, and Mortgagee shall not be responsible under such Lease for
matters arising prior to Mortgagee becoming lessor thereunder. In respect of
each Lease which may be entered into on or after the date hereof, the lien and
estate, as well as the provisions, terms and conditions of each Lease shall in
all respects be subordinate and junior to the lien of this Instrument.
Section 2.03. The Xxxxxx Lease.
(a) Upon Mortgagee's request, Mortgagor will execute any
modification of the Xxxxxx Lease consented to in writing by the lessor at
Mortgagee's request for the purpose of maintaining or preserving Mortgagee's
lien on the Mortgaged Property (provided that such modification does not
increase Mortgagor's obligations or liabilities under the Xxxxxx Lease or this
Instrument).
(b) There shall be no merger of the Xxxxxx Lease or of
the Leasehold Estate of any building, building service equipment or other
improvement now or hereafter constituting a portion of the Mortgaged Property,
with the fee estate of the owner or owners of the land and premises described in
the Xxxxxx Lease, by reason of the fact that the Xxxxxx Lease or the leasehold
interest created thereby, or any interest in any such building, equipment or
other improvements, may be held by or for the account of any person or persons
who shall be the owner or owners of such fee estate in said land and premises,
unless and until all persons at the time having an interest in the fee estate in
said land and premises and all persons, including Mortgagee, at the time having
an interest in the Xxxxxx Lease, leasehold estate, buildings, equipment and
improvements, shall join in a written instrument effecting such merger and shall
duly record the same.
Section 2.04. Further Assurances. Mortgagor, at its sole cost and
expense, shall (i) upon request of Mortgagee promptly correct any defect or
error which may be discovered in this Instrument or any financing statement or
other document relating hereto solely to the extent necessary to create,
effectuate, complete, perfect, continue or preserve the lien of this Instrument
on the Mortgaged Property, and (ii) promptly execute, acknowledge, deliver,
record and re-record, register and re-register, and file and re-file this
Instrument, any amendment to this Instrument and any financing statements or
other documents which Mortgagee may request in writing from time to time (all in
form and substance reasonably satisfactory to Mortgagee) in order (A) to create,
effectuate, complete, perfect, continue or preserve the lien of this Instrument
as a first priority lien on the Mortgaged Property, whether now owned or
hereafter acquired, subject only to the matters set forth on Exhibit B attached
hereto and made a part hereof and except for the Permitted Liens (as defined in
the Indentures), or (B) to create, effectuate,
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complete, perfect, continue, preserve or validate any right, power or privilege
granted or intended to be granted to the Mortgagee hereunder or otherwise
accomplish the purposes of this Instrument. To the extent permitted by law and
to the extent that Mortgagor fails to do so as required hereunder, the Mortgagor
hereby authorizes Mortgagee to file financing statements or continuation
statements covering the Mortgaged Property.
Section 2.05. Casualty Proceeds. Mortgagor hereby assigns to
Mortgagee, as additional security, all proceeds or awards of damage resulting
from a casualty event or condemnation proceedings or the taking of or injury to
the Real Property for public use. All such proceeds or awards paid to Mortgagee
hereunder shall be applied in accordance with the Indentures.
Section 2.06. Inspections. Mortgagor hereby authorizes Mortgagee,
its agents, employees and representatives, upon reasonable prior written notice
to Mortgagor (except in an emergency or following the occurrence of any Trigger
Event, in which case notice shall not be required) to visit and inspect the
Mortgaged Property or any portion(s) thereof, all at such reasonable times and
as often as Mortgagee may reasonably request.
Section 2.07. Indemnity. Mortgagor hereby indemnifies Mortgagee or
any person designated by it and keep Mortgagee or such person designated by it
indemnified against any and all costs, claims and liabilities which it may incur
as a result of anything done by it as an attorney-in-fact for Mortgagor in the
proper exercise of any of the powers conferred, or purported to be conferred,
thereon by this Instrument unless such cost, claim or liability arises as a
result of the negligence or wilful misconduct of Mortgagee or such person
designated by it. For clarification purposes, the indemnity in this Section 2.07
shall apply solely in those instances where Mortgagee or a Delegate acts as an
attorney-in-fact for Mortgagor for purposes of this Instrument.
Section 2.08. After Acquired Property Interests. All right, title
and interest of Mortgagor in and to all of the Mortgaged Property, hereafter
acquired by Mortgagor ("After Acquired Property Interests"), immediately upon
such acquisition, without any further mortgage, conveyance, assignment or other
act by Mortgagor, shall become subject to the lien of this Instrument as fully
and completely, and with the same effect, as though owned by Mortgagor on the
date hereof and specifically described in the granting clauses hereof. Mortgagor
shall execute and deliver to Mortgagee all such other deeds of trust or
mortgages and other agreements as Mortgagee may require for the purpose of
expressly and specifically subjecting such After Acquired Property Interests to
the lien of this Instrument. Mortgagor hereby irrevocably authorizes and
appoints Mortgagee as the agent and attorney-in-fact of Mortgagor to execute all
such documents and instruments on behalf of Mortgagor, which appointment shall
be irrevocable and coupled with an interest, if the Mortgagor fails or refuses
to do so within ten (10) days after written request therefor by Mortgagee.
Section 2.09. The Xxxxxx Lease. Mortgagor further covenants as
follows:
(a) During the existence of an Enforcement Event,
Mortgagor shall not modify, change, supplement, alter or amend the Xxxxxx Lease
in any respect, either orally or in writing, nor shall Mortgagor terminate,
cancel, sever or surrender, or permit or suffer the termination, cancellation,
severance or surrender of, the Xxxxxx Lease or the Leasehold Estate, nor waive,
excuse, condone or in any way release or discharge the fee owner of the Land
("Fee Owner") from the obligations, covenants, conditions and agreements by Fee
Owner to be kept, performed, observed or complied with thereunder, and any such
action taken by Mortgagor without the prior written consent of Mortgagee during
the existence of an Enforcement Event shall be void and of no force and effect.
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(b) During the existence of an Enforcement Event,
Mortgagor shall not, without Mortgagee's prior written consent, exercise any
right to terminate, cancel, sever or surrender the Xxxxxx Lease or the Leasehold
Estate under any bankruptcy or similar laws providing for the relief of debtors,
whether now in effect or hereafter enacted. Without limiting the generality of
the foregoing sentence, during the existence of an Enforcement Event, Mortgagor
shall not, without Mortgagee's prior written consent, elect to treat the Xxxxxx
Lease or the Leasehold Estate as terminated under Xxxxxxx 000 xx xxx Xxxxxx
Xxxxxx Bankruptcy Code, after rejection or disaffirmance of the Xxxxxx Lease by
Fee Owner (whether as debtor in possession or otherwise) or by any trustee of
Fee Owner, and any such election made without such consent shall be void and
ineffective. The immediately preceding provisions of this paragraph shall not
limit the generality of paragraph (a) above.
(c) Mortgagor hereby unconditionally assigns, transfers
and sets over unto Mortgagee all of Mortgagor's claims and rights to the payment
of damages that may hereafter arise as a result of any rejection or
disaffirmance of the Xxxxxx Lease by Fee Owner (whether as debtor in possession
or otherwise) or by any trustee of Fee Owner pursuant to the United States
Bankruptcy Code. Mortgagee shall have and is hereby granted the right to
proceed, in its own name or in the name of Mortgagor, in respect of any claim,
suit, action or proceeding relating to the rejection or disaffirmance of the
Xxxxxx Lease (including, without limitation, the right to file and prosecute, to
the exclusion of Mortgagor, any proofs of claim, complaints, motions,
applications, notices and other documents) in any case in respect of Fee Owner
under the United States Bankruptcy Code. This assignment constitutes a present,
irrevocable and unconditional assignment of the foregoing claims, rights and
remedies, and shall continue in effect until the conditions set forth in Section
5.3 of the Intercreditor Agreement are satisfied. Any amounts received by
Mortgagee as damages arising out of any such rejection or disaffirmance of the
Xxxxxx Lease shall be applied in accordance with the provisions of the
Intercreditor Agreement. Any of the foregoing provisions notwithstanding, so
long as there shall exist no Enforcement Event, Mortgagee shall not exercise its
rights under this Section 2.09(c), but rather Mortgagee shall cooperate with
Mortgagor's efforts to proceed in respect of any claim, suit, action or
proceeding relating to the rejection or disaffirmance of the Xxxxxx Lease in any
case in respect of Fee Owner under the United States Bankruptcy Code.
(d) In the event that a petition under the United States
Bankruptcy Code shall be filed by or against Mortgagor and Mortgagor (whether as
debtor in possession or otherwise) or any trustee of Mortgagor shall decide to
reject or disaffirm the Xxxxxx Lease pursuant to the United States Bankruptcy
Code, Mortgagor shall give 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 or disaffirm the Xxxxxx Lease. Mortgagee shall have the right, but not
the obligation, to serve upon Mortgagor or such trustee within such ten (10) day
period a notice stating that (i) Mortgagee demands that Mortgagor (whether as
debtor in possession or otherwise) or such trustee assume and assign the Xxxxxx
Lease to Mortgagee pursuant to the United States Bankruptcy Code, and (ii)
Mortgagee covenants to cure, or to provide adequate assurance of prompt cure of,
all defaults and to provide adequate assurance of future performance under the
Xxxxxx Lease. In the event that Mortgagee serves any such notice as provided
above, neither Mortgagor (whether as debtor in possession or otherwise) nor such
trustee shall seek to reject or disaffirm the Xxxxxx Lease and Mortgagor
(whether as debtor in possession or otherwise) and such trustee shall comply
with such demand within thirty (30) days after such notice shall have been
given, subject to Mortgagee's performance of such covenant.
(e) In the event that a petition under the United States
Bankruptcy Code shall be filed by or against Mortgagor, and if within thirty
(30) days after the date of filing of such petition neither Mortgagor (whether
as debtor in possession or otherwise) nor any trustee of Mortgagor shall take
any affirmative action to assume, reject or disaffirm the Xxxxxx Lease pursuant
to the United States Bankruptcy Code, then Mortgagee shall have the right, but
not the obligation, to serve upon Mortgagor or such trustee a notice stating
that (i) Mortgagee demands that Mortgagor (whether as debtor in possession or
otherwise) or such trustee assume and assign the Xxxxxx Lease to Mortgagee
pursuant to the United States
8
Bankruptcy Code, and (ii) Mortgagee covenants to cure, or to provide adequate
assurance of prompt cure of, all defaults and to provide adequate assurance of
future performance under the Xxxxxx Lease. In the event that Mortgagee serves
any such notice as provided above, neither Mortgagor (whether as debtor in
possession or otherwise) nor such trustee shall seek to reject or disaffirm the
Xxxxxx Lease and Mortgagor (whether as debtor in possession or otherwise) and
such trustee shall comply with such demand within fifteen (15) days after such
notice shall have been given, subject to Mortgagee's performance of such
covenant.
(f) Mortgagor hereby assigns, transfers and sets over to
Mortgagee a non-exclusive right to apply to the Bankruptcy Court under Section
365 of the United States Bankruptcy Code for an order extending the period
during which the Xxxxxx Lease may be rejected, disaffirmed or assumed after the
entry of any order for relief in respect of Mortgagor under Chapter 7 of the
Bankruptcy Code.
(g) The provisions of this Section 2.09 that purport to
provide Mortgagee certain rights, remedies, privileges and protections, and/or
to impose certain obligations, restrictions and limitations upon Mortgagor
(whether as a debtor in possession or otherwise) or any trustee of Mortgagor, in
connection with any action, proceeding, motion or notice commenced or filed by
or against Fee Owner or Mortgagor, or with respect to all or any part of the
Property, in connection with any case under the United States Bankruptcy Code
shall be limited to the extent any such right, remedy, privilege, protection,
obligation, restriction or limitation is prohibited or otherwise not permitted
pursuant to the United States Bankruptcy Code or by the court in which such
action, proceeding, motion or notice is commenced or filed.
Section 2.10. Expenses and Costs. Mortgagor shall, from time to
time and promptly on demand by Mortgagee reimburse to Mortgagee all costs and
expenses (including legal fees) on a full indemnity basis incurred by Mortgagee
and any Delegate in connection with:
1. the execution, release and discharge of this Instrument and
the security created hereby or intended to be created hereby
in respect of the Mortgaged Property and the completion of the
transactions and perfection of the security contemplated in
this Instrument or forming part of the security created hereby
or intended to be created hereby in respect of the Mortgaged
Property;
2. the actual or contemplated exercise, preservation and/or
enforcement of any of the rights, powers and remedies of, or
the performance of the duties and obligations of, Mortgagee or
any Delegate, or any amendment or waiver in respect of this
Instrument;
3. the foreclosure (whether judicial or by power of sale) of any
Mortgaged Property; and
4. the preservation and/or enforcement of the security created or
intended to be created in respect of the Mortgaged Property,
which shall carry interest from the date of such demand until so reimbursed at
the rate and on the basis as mentioned in Clause 18.4 of the Intercreditor
Agreement.
Section 2.11. Taxes. Mortgagor shall pay, promptly on demand of
Mortgagee all stamp, registration, notarial and other similar taxes or fees paid
or payable by Mortgagee in connection with any
9
action taken or contemplated by or on behalf of Mortgagee for perfecting,
maintaining, enforcing, releasing, cancelling, reassigning or resolving any
doubt concerning, or for any other purpose in relation to this Instrument, any
amendment thereto, any transfer and/or assignment of the rights and/or
obligations under the same or the security created hereby or intended to be
created hereby in respect of the Mortgaged Property and shall, from time to
time, indemnify Mortgagee promptly on demand against any liabilities, costs,
claims and expenses resulting from any failure to pay by Mortgagor or any delay
by Mortgagor in paying any such taxes or fees.
ARTICLE III
MORTGAGEE'S RIGHTS
Section 3.01. Performance of Mortgagor's Obligations. Mortgagor
agrees that, upon the occurrence of an Enforcement Event, Mortgagee may, but
need not, make any payment or perform any act hereinbefore required of
Mortgagor, in any form and manner deemed expedient. By way of illustration and
not in limitation of the foregoing, Mortgagee may, but need not, (i) make full
or partial payments of insurance premiums which are unpaid by Mortgagor,
coordinate liens or encumbrances, if any, (ii) purchase, discharge, compromise
or settle any tax lien or any other lien, encumbrance, suit, proceeding, title
or claim thereof, or (iii) redeem all or any part of the Real Property from any
tax or assessment. All moneys paid for any of the purposes herein authorized and
all other moneys advanced by Mortgagee to protect the Mortgaged Property and the
lien hereof shall be additional Secured Obligations and shall become immediately
due and payable without notice and shall bear interest thereon at the rate set
forth in Clause 18.4 of the Intercreditor Agreement until paid to Mortgagee in
full. In making any payment hereby authorized relating to taxes, assessments or
prior or coordinate liens or encumbrances, Mortgagee shall be the sole judge of
the legality, validity and priority thereof and of the amount necessary to be
paid in satisfaction thereof.
Section 3.02. Extension of Lien. If Mortgagor exercises any
applicable option to purchase, right of first refusal or right of first offer to
purchase the Land pursuant to the Ground Lease or otherwise acquires the fee
interest to the Land, contemporaneously with the consummation of the acquisition
of the Land by Mortgagor, the lien of this Instrument shall be automatically
extended to cover and include the Land as part of the Mortgaged Property, and
thereupon, the definition used herein for "Mortgaged Property" and "Real
Property" shall automatically and immediately be deemed to include the Land and
if required by law to create and maintain a security interest on the Land,
Mortgagor shall execute any instrument necessary to effectuate such extension of
the lien of this Instrument to encumber the Land.
ARTICLE IV
REMEDIES & RIGHTS
Section 4.01. Remedies of Mortgagee. Upon the occurrence of an
Enforcement Event, Mortgagee may, without notice to or demand upon Mortgagor,
declare this Instrument to be in default, and, in addition to all other rights
and remedies at law or in equity available to Mortgagee or as otherwise provided
for in the Intercreditor Agreement or the Indentures, to the extent permitted by
applicable law, the following provisions shall apply:
(a) Mortgagee's Power of Enforcement. It shall be lawful
for Mortgagee to (i) immediately sell the Mortgaged Property, either in whole or
in separate parcels, as prescribed by the State law, or (ii) immediately
foreclose this Instrument by judicial action. Mortgagee may become the purchaser
at any such foreclosure sale if it is the highest bidder. The court in which any
proceeding is
10
pending for the purpose of sale under or foreclosure of this Instrument if such
remedy is taken or any court of competent jurisdiction may, at once or at any
time thereafter, either before or after sale, without notice and without
requiring bond, and without regard to the solvency or insolvency of any person
liable for payment of the Secured Obligations, and without regard to the then
value of the Mortgaged Property or the occupancy thereof as a homestead, appoint
a receiver (the provisions for the appointment of a receiver and assignment of
rents being an express condition upon which the Secured Obligations hereby
secured are made) for the benefit of Mortgagee, with power to collect the Rents,
due and to become due, during such foreclosure suit or proceeding for such sale
and the full statutory period of redemption, notwithstanding any redemption. The
receiver, out of the Rents, when collected, may pay costs incurred in the
management and operation of the Real Property, prior and subordinate liens, if
any, and taxes, assessments, water and other utilities and insurance, then due
or thereafter accruing, and may make and pay for any necessary repairs to the
Real Property or the Personal Property, and may pay all or any part of the
Secured Obligations or other sums secured hereby or any deficiency decree
entered in such foreclosure proceedings. Upon or at any time after the filing of
a suit to foreclose this Instrument, the court in which such suit is filed shall
have full power to enter an order placing Mortgagee in possession of the Real
Property with the same power granted to a receiver pursuant to this subparagraph
and with all other rights and privileges of a mortgagee-in-possession under
applicable law.
(b) Mortgagee's Right to Enter and Take Possession,
Operate and Apply Income. Mortgagee shall, at its option, have the right, acting
through its agents or attorneys, either with or without process of law, forcibly
or otherwise, to enter upon and take possession of the Real Property, expel and
remove any persons, goods, or chattels occupying or upon the same, to collect or
receive all the Rents, and to manage and control the same, and to lease the same
or any part thereof, from time to time, and, after deducting all reasonable
attorneys' fees and expenses, and all reasonable expenses incurred in the
protection, care, maintenance, management and operation of the Real Property,
distribute and apply the remaining net income in accordance with the terms of
the Intercreditor Agreement or upon any deficiency decree entered in any
foreclosure proceedings.
Section 4.02. Application of the Rents or Proceeds from Foreclosure
or Sale. The Rents and the proceeds of any sale through a foreclosure proceeding
shall be distributed and applied in accordance with the terms of the
Intercreditor Agreement. In any foreclosure of this Instrument by judicial
action, subject to the terms and provisions of the Intercreditor Agreement,
there shall be allowed (and included in the decree for sale in the event of a
foreclosure by judicial action) to be paid out of the Rents or the proceeds of
such foreclosure proceeding and/or sale:
(a) Secured Obligations. All of the Secured Obligations
and other sums secured hereby which then remain unpaid;
(b) Other Advances. All other items advanced or paid by
Mortgagee pursuant to this Instrument, with interest thereon at the rate set
forth in Clause 18.4 of the Intercreditor Agreement from the date of
advancement; and
(c) Costs, Fees and Other Expenses. All court costs,
reasonable in-house and outside attorneys' and paralegals' fees and expenses,
costs of environmental surveys and guard or other security services, appraiser's
fees, advertising costs, notice expenses, expenditures for documentary and
expert evidence, stenographer's charges, publication costs, and costs (which may
be estimated as to items to be expended after entry of the decree) of procuring
all abstracts of title, title searches and examinations, title guarantees, title
insurance policies, surveys, and similar data with respect to title which
Mortgagee may deem necessary. All such expenses shall become additional Secured
Obligations and be immediately due and payable, with interest thereon at the
rate set forth in Clause 18.4 of the Intercreditor Agreement, when
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paid or incurred by Mortgagee in connection with any proceedings, including, but
not limited to, probate and bankruptcy proceedings, to which Mortgagee shall be
a party, either as plaintiff, claimant or defendant, by reason of this
Instrument or any indebtedness hereby secured or in connection with the
preparations for the commencement of any suit for the foreclosure, whether or
not actually commenced.
Section 4.03. Cumulative Remedies; Delay or Omission Not a Waiver.
Each remedy or right of Mortgagee shall not be exclusive of, but shall be in
addition to, every other remedy or right now or hereafter existing at law or in
equity. No delay in the exercise or omission to exercise any remedy or right
accruing on the occurrence or existence of any Material Default or Enforcement
Event shall impair any such remedy or right or be construed to be a waiver of
any such Material Default or Enforcement Event or acquiescence therein, nor
shall it affect any subsequent Material Default or Enforcement Event the same or
different nature. Every such remedy or right may be exercised concurrently or
independently and when and as often as may be deemed expedient by Mortgagee. The
acceptance by Mortgagee, any successor administrative agent or any secured party
of any payment less than the amount of the Secured Obligation in question shall
be deemed to be an acceptance on account only and shall not be construed as a
waiver of any Material Default or Enforcement Event with respect thereto, and
the acceptance by Mortgagee, any successor administrative agent or any secured
party of any payment of, or on account of, any Secured Obligation shall not be
deemed to be a waiver of any Material Default or Enforcement Event other
occurrence hereunder or under any Relevant Documents with respect to any other
Secured Obligation. If Mortgagee has proceeded to enforce any remedy or right
hereunder or with respect hereto by foreclosure, sale, entry or otherwise, it
may compromise, discontinue or abandon such proceeding for any reason without
notice to Mortgagor or any other party (except any other agent, the Secured
Creditors or the other secured parties to the extent required by any Relevant
Documents); and, if any such proceeding shall be discontinued, abandoned or
determined adversely for any reason, Mortgagor and Mortgagee shall retain and be
restored to their former positions and rights hereunder with respect to the
Mortgaged Property, subject to the lien hereof except to the extent any such
adverse determination specifically provides to the contrary.
Section 4.04. Mortgagee's Remedies against Multiple Parcels. If
more than one property, lot or parcel is covered by this Instrument, and if this
Instrument is foreclosed upon, or judgment is entered upon any Secured
Obligations, execution may be made upon any one or more of the properties, lots
or parcels and not upon the others, or upon all of such properties or parcels,
either together or separately, and at different times or at the same time, and
foreclosure sales herein granted may likewise be conducted separately or
concurrently, in each case at Mortgagee's election.
Section 4.05. No Merger. In the event of a foreclosure of this
Instrument or any other mortgage or deed of trust securing the Secured
Obligations, the Secured Obligations then due to the Mortgagee shall not be
merged into any decree of foreclosure entered by the court, and Mortgagee may
concurrently or subsequently seek to foreclose one or more other deeds of trust
which also secure said Secured Obligations.
Section 4.06. Waivers by Mortgagor. To the fullest extent permitted
under applicable law, Mortgagor shall not assert, and hereby irrevocably waives,
any right or defense Mortgagor may have under any statute or rule of law or
equity now or hereafter in effect relating to (a) homestead exemption,
extension, moratorium, stay, redemption, reinstatement, marshaling of the
Mortgaged Property or the other assets of Mortgagor, sale of the Mortgaged
Property in any order or notice of deficiency or intention to accelerate any
Secured Obligation, (b) impairment of any right of subrogation or reimbursement,
(c) any requirement that at any time any action must be taken against any other
party, any portion of the Mortgaged Property or any other asset of Mortgagor or
any other party, (d) any provision barring or limiting the right of Mortgagee to
sell any Mortgaged Property after any other sale of any other
12
Mortgaged Property or any other action against Mortgagor or any other party, (e)
any provision barring or limiting the recovery by Mortgagee of a deficiency
after any sale of the Mortgaged Property, (f) any other provision of applicable
law which shall defeat, limit or adversely affect any right or remedy of
Mortgagee or any secured party under or with respect to this Instrument or any
other Relevant Documents as it relates to any Mortgaged Property, (g) the right
of Mortgagee to foreclose this Instrument in its own name on behalf of all of
the secured parties by judicial action as the real party in interest without the
necessity of joining any secured party, or (h) the Guarantees, including,
without limitation, notice of existence, creation or incurring of any new or
additional indebtedness or obligation or of any action or non-action on the part
of Mortgagor or the Issuer, Mortgagee or any Secured Creditor or on the part of
any person whomsoever under the Intercreditor Agreement, this Instrument or any
of the other Relevant Documents in connection with any obligation or evidence of
indebtedness held by Mortgagee, as Security Trustee for the Secured Creditors or
held by any of the Secured Creditors. Appraisement of the Real Property is
hereby expressly waived, at the option of Mortgagee, which such option shall be
executed prior to the time any judgment is tendered at foreclosure.
Section 4.07. Jurisdiction and Process. (a) To the extent permitted
under applicable law, in any suit, action or proceeding arising out of or
relating to this Instrument or any other Relevant Documents insofar and only
insofar as it relates to any Mortgaged Property, Mortgagor (i) irrevocably
consents to the non-exclusive jurisdiction of any state or federal court sitting
in which the Real Property is located and irrevocably waives any defense or
objection which it may now or hereafter have to the jurisdiction of such court
or the venue of such court or the convenience of such court as the forum for any
such suit, action or proceeding, and (ii) irrevocably consents to the service of
(A) any process in accordance with applicable law in any such suit, action or
proceeding, or (B) any notice relating to any sale, or the exercise of any other
remedy by Mortgagee hereunder by mailing a copy of such process or notice by
United States registered or certified mail, postage prepaid, return receipt
requested to Mortgagor at its address specified in or pursuant to Section 5.01;
such service to be effective in accordance with applicable law.
(b) Nothing in this Section shall affect the right of
Mortgagee to bring any suit, action or proceeding arising out of or relating to
this Instrument, or any other Relevant Documents in any court having
jurisdiction under the provisions therein or applicable law or to serve any
process, notice of sale or other notice in any manner permitted by this
Instrument, the other Relevant Documents or applicable law.
Section 4.08. Concerning Mortgagee. (a) Mortgagee is authorized to
take all such action as is provided to be taken by it as Mortgagee hereunder and
all such other action incidental thereto, subject to the terms and provisions of
the Intercreditor Agreement. As to any matters not expressly provided for herein
(including the timing and methods of realization upon the Mortgaged Property),
Mortgagee shall, in addition, act or refrain from acting in accordance with the
terms and provisions of the Intercreditor Agreement. Mortgagee shall not be
responsible for the existence, genuineness or value of any of the Mortgaged
Property or for the validity, perfection, priority or enforceability of the lien
of this Instrument on any of the Mortgaged Property, whether impaired by
operation of law or by reason of any action or omission to act on its part
hereunder. Mortgagee shall have the right, but shall have no duty, to ascertain
or inquire as to the performance or observance of any of the terms of this
Instrument by Mortgagor.
(b) Mortgagee may, at any time, delegate by power of
attorney or otherwise to any person(s) or entity(ies) the ability to exercise
any or all of the rights, powers and discretions vested in it by this Instrument
or appoint any person or entity to act as additional Mortgagee or as co-trustee
for the purpose of this Instrument, in accordance with and subject to the terms
of Clause 16 of the Intercreditor Agreement.
13
(c) In the event that Mortgagee acts as Mortgagor's
attorney in fact or otherwise as its agent as provided for under this
Instrument, Mortgagor shall ratify and confirm all things done and all documents
executed by Mortgagee in the exercise or purported exercise of all or any of
such powers or acts.
ARTICLE V
MISCELLANEOUS
Section 5.01. Notices. Except as otherwise provided herein, all
communication required or permitted to be given in connection with this
Instrument shall be in writing, and shall be given or served in the manner and
to the address, and deemed received, as provided in clause 20 of the
Intercreditor Agreement.
Section 5.02. Extension of Payments. Mortgagor agrees that, without
affecting the liability of any person for payment of the Secured Obligations or
affecting the lien of this Instrument upon the Mortgaged Property or any part
thereof (other than persons or property explicitly released as a result of the
exercise by Mortgagee of its rights and privileges hereunder), Mortgagee may
(without obligation), at any time and from time to time, on request of the
Mortgagor made in accordance with the terms and provisions of the Intercreditor
Agreement, without notice to any person liable for payment of any Secured
Obligations; or to any other person or entity, extend the time, or agree to
alter or amend the terms of payment of such Secured Obligations; provided,
however, that such actions of Mortgagee are expressly limited by the terms and
provisions of the Intercreditor Agreement. Mortgagor further agrees that any
part of the security herein described may be released with or without
consideration without affecting the remainder of the Secured Obligations, the
remainder of the security, or the lien of this Instrument.
Section 5.03. Governing Law. Mortgagor agrees that this Instrument
is to be construed, governed and enforced in accordance with the laws of the
State. Wherever possible, each provision of this Instrument shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Instrument shall be prohibited by or invalid under applicable
law, such provision shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Instrument.
Section 5.04. Satisfaction of Mortgage. Upon satisfaction of the
conditions set forth in Section 5.3 of the Intercreditor Agreement, this
conveyance or lien shall be null and void and, upon demand therefor following
such satisfaction, a satisfaction of mortgage or reconveyance of the Mortgaged
Property and any other documents required to release the lien of this Instrument
shall promptly be provided by Mortgagee to Mortgagor, at Mortgagor's sole
expense, without recourse to, or any representation or warranty by, the
Mortgagee or any of its nominees.
Section 5.05. Successors and Assigns Included in Parties. This
Instrument shall be binding upon the Mortgagor and upon the successors, assigns
and vendees of the Mortgagor and shall inure to the benefit of the Mortgagee's
successors and assigns and any principals it represents as agent; all references
herein to the Mortgagor and to the Mortgagee shall be deemed to include their
successors and assigns and, as to Mortgagee, any principals it represents as
agent. Mortgagor's successors and assigns shall include, without limitation, a
receiver, trustee or debtor in possession of or for the Mortgagor. Wherever
used, the singular number shall include the plural, the plural shall include the
singular, and the use of any gender shall be applicable to all genders.
14
Section 5.06. Waiver of Appraisement, Valuation, Stay, Extension
and Redemption Laws. Mortgagor agrees, to the full extent permitted by law, that
in case of an Enforcement Event, neither Mortgagor nor anyone claiming through
or under it shall or will set up, claim or seek to take advantage of any
appraisement, valuation, stay, or extension laws now or hereafter in force, in
order to prevent or hinder the enforcement or foreclosure of this Instrument or
the absolute sale of the Mortgaged Property or the final and absolute putting
into possession thereof, immediately after such sale, of the purchaser thereat,
and Mortgagor, for itself and all who may at any time claim through or under it,
hereby waives, to the full extent that it may lawfully so do, the benefit of all
such laws, and any and all right to have the assets comprising the Mortgaged
Property marshalled upon any foreclosure of the lien hereof and agrees that
Mortgagee, or any court having jurisdiction to foreclose such lien may sell the
Mortgaged Property in part or as an entirety. Mortgagor represents that it has
been authorized to, and Mortgagor does hereby waive to the full extent permitted
by law any and all statutory or other rights of redemption from sale under any
order or decree of foreclosure of this Instrument, on its own behalf and on
behalf of each and every person acquiring any interest in or title to the
Mortgaged Property subsequent to the date hereof.
Section 5.07. Interpretation with Other Documents. Notwithstanding
anything in this Instrument to the contrary, (a) in the event of a conflict or
inconsistency between this Instrument and the provisions of the Intercreditor
Agreement, the provisions of the Intercreditor Agreement shall govern, and (b)
the exercise of any right or remedy by Mortgagee under this Instrument shall be
done in accordance with and is subject to the terms and provisions of the
Intercreditor Agreement.
Section 5.08. Future Advances. (a) The parties hereto intend that,
in addition to any other debt or obligation secured hereby, this Instrument
shall secure unpaid balances of loan advances and other extensions of credit
made after this Instrument is delivered to the appropriate recording offices of
the State, whether such advances or extensions of credit made are obligatory or
otherwise, and such future advances or extensions of credit shall be secured to
the same extent as if such advances or extensions of credit were made on the
date hereof, although there may be no advance or extensions of credit made at
the time of the execution hereof and although there may be no indebtedness
outstanding at the time any advance or extension of credit is made. Such unpaid
balances of loan advances and other extensions of credit may or may not be
evidenced by notes executed pursuant to the applicable Relevant Documents.
(b) This Instrument is given to secure, inter alia, the
Notes and a revolving bonding facility pursuant to and in accordance with the
New Bonding Facility Agreement and shall secure not only presently existing
indebtedness thereunder and under the Intercreditor Agreement but also future
advances and other extensions of credit, whether such advances or extensions of
credit are obligatory or otherwise, as are made within twenty (20) years from
the date hereof, to the same extent as if such future advances or extensions of
credit were made on the date of the execution of this Instrument, although there
may be no Secured Obligations outstanding at the time any advance or extensions
of credit is made. The lien of this Instrument shall be valid as to all Secured
Obligations, including future advances or extensions of credit, from the time of
its recording in the Recorder's Office of the County of Du Page, Illinois. This
Instrument shall be valid and have priority to the extent of the Secured
Obligations over all subsequent liens and encumbrances, including statutory
liens, excepting solely taxes and assessments levied on the Mortgaged Premises
given priority by law.
(c) The total amount of the indebtedness that may be
secured by this Instrument may increase or decrease from time to time, but the
total indebtedness secured at any one time shall not exceed One Billion Two
Hundred Eighty-Six Million Nine Hundred Twenty-Five Thousand and No/100 Dollars
(US$1,286,925,000.00).
Section 5.09. Additional Illinois Provisions.
15
(a) "Act" shall mean the Illinois Mortgage Foreclosure
Law, 735 ILCS 5/15-1101, as the same may have been or shall be amended. Except
as otherwise specifically provided for herein, Mortgagor and Mortgagee shall
have the benefit of all of the provisions of the Act, including all amendments
thereto which may become effective from time to time after the date hereof. In
the event any provision of the Act which is specifically referred to herein may
be repealed, Mortgagee shall have the benefit of such provision as most recently
existing prior to such repeal, as though the same were incorporated herein by
express reference. Notwithstanding anything to the contrary contained herein, to
the extent that any rights or remedies of Mortgagee contained in this Instrument
are limited, restricted or prohibited by the Act, then the provisions of the Act
shall govern, supercede and control the provisions of this Instrument that are
limited by, restricted by or inconsistent with the Act and this Instrument shall
be construed as if such limited, prohibited or inconsistent provisions had never
been included.
(b) In addition to any provision of this Instrument
authorizing the Mortgagee to take or be placed in possession of the Mortgaged
Premises, or for the appointment of a receiver, Mortgagee shall have the right,
in accordance with Sections 5/15-1701 and 5/15-1702 of the Act, to be placed in
possession of the Mortgaged Premises or at its request to have a receiver
appointed without posting any bond, and such receiver, or Mortgagee, if and when
placed in possession, shall have, in addition to any other powers provided in
this Instrument, all rights, power, immunities, and duties as provided for in
Sections 5/15-1701 and 5/15-1703 of the Act.
(c) Mortgagor acknowledges that the Mortgaged Property
does not constitute agricultural real estate, as said term is defined in Section
5/15-1201 of the Act or residential real estate as defined in Section 5/15-1219
of the Act. Pursuant to Section 5/15-1601(b) of the Act, Mortgagor hereby waives
any and all right of redemption.
(d) Mortgagor hereby waives any right to reinstate the
Secured Obligations as provided in Section 5/15-1602 of the Illinois Mortgage
Foreclosure Law, 735 ILCS 5/15-1101.
(e) This Instrument is cross-defaulted with the
Intercreditor Agreement and the Indentures and cross-collateralized with the
Secured Obligations.
Section 5.10. Invalid Provisions to Affect No Others. In the event
that any of the covenants, agreements, terms or provisions contained in this
Instrument shall be invalid, illegal or unenforceable in any respect, the
validity of the remaining covenants, agreements, terms or provisions contained
herein or in any other Relevant Documents shall not be in any way affected,
prejudiced or disturbed thereby. In the event that the application of any of the
covenants, agreements, terms or provisions of this Instrument is held to be
invalid, illegal or unenforceable, those covenants, agreements, terms and
provisions shall not be in any way affected, prejudiced or disturbed when
otherwise applied.
Section 5.11. Changes. Neither this Instrument nor any term hereof
may be changed, waived, discharged or terminated orally, or by any action or
inaction, but only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought. To the
extent permitted by law, any agreement hereafter made by Mortgagor and Mortgagee
relating to this Instrument shall be superior to the rights of the holder of any
intervening lien or encumbrance.
Section 5.12. Marshalling of Assets. Notice is hereby given that no
holder of any mortgage, lien or other encumbrance affecting all or a part of the
Mortgaged Property which is inferior to the lien of this Instrument shall have
any right to require the Mortgagee to marshal assets.
16
Section 5.13. Time of Essence. Time is of the essence with respect
to the provisions of this Instrument.
Section 5.14. Relevant Documents Revisions. In this Instrument,
references to this Instrument or to easement agreements, Leases, the
Intercreditor Agreement, and any other Relevant Documents include all
amendments, supplements, consolidations, replacements, restatements, extensions,
renewals and other modifications, to the extent applicable, and any refinancings
and refundings thereof, in whole or in part.
Section 5.15. WAIVER OF JURY TRIAL. MORTGAGOR AND MORTGAGEE
EXPRESSLY AND VOLUNTARILY WAIVE ANY AND ALL RIGHTS, WHETHER ARISING UNDER THE
UNITED STATES OR ANY STATE CONSTITUTION, ANY RULES OF CIVIL PROCEDURE, COMMON
LAW OR OTHERWISE, TO DEMAND A TRIAL BY JURY IN ANY ACTION, LAWSUIT, PROCEEDING,
COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE BASED UPON, OR ARISING OUT OF,
THIS INSTRUMENT OR THE OTHER RELEVANT DOCUMENTS, ANY AGREEMENTS ARISING UNDER OR
RELATING TO THIS INSTRUMENT, ANY MORTGAGED PROPERTY SECURING THE SECURED
OBLIGATIONS, OR THE DEALINGS OR RELATIONSHIPS BETWEEN MORTGAGOR AND MORTGAGEE.
NEITHER MORTGAGOR NOR MORTGAGEE, INCLUDING ANY ASSIGNEE OR SUCCESSOR OF
MORTGAGOR OR MORTGAGEE, SHALL SEEK A JURY TRIAL IN ANY SUCH ACTION. NEITHER
MORTGAGOR NOR MORTGAGEE SHALL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER
ACTION WHEN A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS
SHALL BE SUBJECT TO NO EXCEPTIONS. NEITHER MORTGAGOR NOR MORTGAGEE HAS IN ANY
WAY AGREED WITH OR REPRESENTED TO THE OTHER THAT THE PROVISIONS OF THIS
PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
Section 5.16. Reduction of Secured Amount. In the event that the
maximum principal amount secured by this Instrument is less than the aggregate
Secured Obligations then the amount secured hereby shall be reduced only by the
last and final sums that the Mortgagor repays with respect to the Secured
Obligations and shall not be reduced by any intervening repayments of the
Secured Obligations. So long as the balance of the Secured Obligations exceeds
the amount secured hereby, any payments of the Secured Obligations shall not be
deemed to be applied against, or to reduce, the portion of the Secured
Obligations secured by this Instrument. Such payments shall instead be deemed to
reduce only such portions of the Secured Obligations as are secured by deeds of
trust or mortgages encumbering real property located outside the State of
Illinois which secure the entire Secured Obligations (except to the extent, if
any, that specific deeds of trust or mortgages in such states contain specific
limitations on the amount secured).
[SIGNATURE PAGE FOLLOWS]
17
IN WITNESS WHEREOF, this Instrument is executed as of the day
and year first above written by the person identified below on behalf of
Mortgagor (and said person hereby represents that he or she possesses full power
and authority to execute this Instrument).
THE MORTGAGOR HEREBY DECLARES AND ACKNOWLEDGES THAT THE
MORTGAGOR HAS RECEIVED, WITHOUT CHARGE, A TRUE COPY OF THIS INSTRUMENT.
MORTGAGOR:
Attest: MARCONI COMMUNICATIONS, INC.
a Delaware corporation
By: _______________________________________ By: ____________________________
Name: XXXXX X. XXXXXX Name: XXXXXXXX X. XXXXXXX
Title: ASSISTANT SECRETARY Title: AUTHORIZED SIGNATORY
18
STATE OF ILLINOIS)
:
DU PAGE COUNTY )
I XXXXXX X. XXXXXXX, a Notary Public for said County and
State, hereby certify that XXXXXXXX X. XXXXXXX personally appeared before me
this day and acknowledged that she is an AUTHORIZED SIGNATORY of MARCONI
COMMUNICATIONS, INC., a Delaware corporation, and that, by authority duly given
and as an act of the corporation, the foregoing instrument was signed by its
AUTHORIZED SIGNATORY and attested by XXXXX X. HACKERas its Assistant Secretary.
Witness my hand and official seal, this 15TH day of MAY,
2003.
Notary Public XXXXXX X. XXXXXXX
My commission expires: 5/19/03
[Notarial Seal/Stamp]
(OFFICIAL SEAL XXXXXX X. XXXXXXX)
19
EXHIBIT A
Du Page County, Illinois
0000 Xxxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
Tax Parcel No. 00-00-000-000
Legal Description of the Premises
Lot 1 in final plat of resubdivision of Cantera H10 Resubdivision of Xxx 00 xx
Xxxxxxx Xxxxxxx X subdivision, of Part of the West 1/2 of Section 1 and Part of
the southeast 1/4 of Section 2, both in township 38 North, Range 9, east of the
Third Principal Meridian, according to the Plat thereof recorded June 27, 1995
as Document No. R95-79082, all according to the Final Plat of Resubdivision
recorded October 21, 1997 as document R97-160061, in Dupage Country, Illinois.
A-1
EXHIBIT B
Permitted Title Exceptions
1. General taxes for the year 2003 and subsequent years, which are not yet
due and payable.
2. Terms, provisions and conditions of Ordinance No. 1136, being an
ordinance granting special use for planned development - - Elmhurst - -
Chicago Stone Company, recorded February 13, 1991 as Document
R91-016174.
3. Declaration of protective covenants, conditions, restrictions and
easements made by Warrenville Development Limited Partnership, an
Illinois Limited Partnership, recorded June 27, 1995 as Document
R95-79083, regarding among other things the formation of the Cantera
Owner's Association; uses; approval of plans; signs; setbacks; parking
and paved areas; landscaping and stormwater; screening; lot sizes;
common areas; maintenance of lots; common area costs; and right of
assessment.
4. Restrictive covenant dated December 9, 1996 and recorded December 18,
1996 as document number R96-202493, relating to restrictions of the
uses of The Burden Land for a period of 20 years after the date of this
Restrictive Covenant, together with provisions for injunction in favor
of benefitted parties in the event the burdened land restrictions are
violated.
5. Restrictions and easement reservations contained in Special Warranty
Deed from Warrenville Development to Xxxxxx Parkway, L.L.C., recorded
August 27, 1997 as Document R97-127465 and the terms and provisions
therein contained.
6. Building setback line, as shown on the plat of Cantera Subarea H
recorded June 27, 1995 as Document R95-079082 and as disclosed on the
final plat of resubdivision of Cantera H-10 resubdivision in Cantera
Subarea H recorded October 21, 1997 as Document R97-160061.
7. Easement for public utilities, as shown on the plat of Cantera Subarea
H recorded June 27, 1995 as Document R95-079082 and as disclosed on the
final plat of resubdivision of Cantera H-10 resubdivision in Cantera
Subarea H recorded October 21, 1997 as Document R97-160061.
8. Easement for sanitary sewer, as shown on the final plat of
resubdivision of Cantera H-10 resubdivision in Cantera Subarea H
recorded October 21, 1997 as Document R97-160061.
9. Easement for pedestrian pathway easement, as shown on the final plat of
resubdivision of Cantera H-10 resubdivision in Cantera Subarea H
recorded October 21, 1997 as Document R97-160061.
10. Notes appended to the plat of Cantera Subarea H recorded June 27, 1995
as Document R95-079082 and the final plat of resubdivision of Cantera
H10 resubdivision recorded October 21, 1997 as Document R97-160061
relating to storm water management easements and storm water management
area maintenance provisions.
11. Encroachment of Gravel Path outside the pathway easement as Delineated
on the survey executed by SDI Consultants Ltd. dated June 11, 1998 as
Project No: 8935H10REL.
12. UCC Financing Statement from Marconi Communications, Inc. (Debtor) to
The Law Debenture Trust Corporation p.l.c., as Security Trustee
(Secured Party).
B-1
13. Mortgage and Security Agreement recorded on July 29, 1998 as Document
R98-151437 made by Xxxxxx Parkway, L.L.C. to WMF Capital Corp.
14. Assignment of Leases and Rents recorded on July 29, 1998 as Document
R98-151438 made by Xxxxxx Parkway, L.L.C. to WMF Capital Corp.
15. UCC Financing Statement filed on July 29, 1998 as Document R98-151440
made by Xxxxxx Parkway, L.L.C. to WMF Capital Corp.
16. UCC Financing Statement from Marconi Communications, Inc. (Debtor) to
The Law Debenture Trust Corporation p.l.c., as Security Trustee
(Secured Party).
B-2
