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EXHIBIT 4.5
Drawn By and Return To:
Xxxxx & Xxx Xxxxx, PLLC (MBG)
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
AMENDED AND RESTATED
MORTGAGE AND
SECURITY AGREEMENT
COLLATERAL IS OR INCLUDES FIXTURES
THIS AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT (the
"Mortgage"), dated as of October 2, 1997, is by and between IPC, INC., a
Delaware corporation (the "Borrower"), successor in title by merger to Ivex
Coated Products Corporation, a Massachusetts corporation ("Ivex") and
NATIONSBANK, N.A., as Collateral Agent for the Lenders under the Credit
Agreement hereinafter defined (in its capacity as Collateral Agent hereunder,
together with any successor in such capacity, hereinafter the "Collateral
Agent").
RECITALS:
WHEREAS, the Borrower, Ivex Packaging Corporation, a Delaware
corporation ("Holdings"), each of the Borrower's Domestic Subsidiaries (the
Borrower's Domestic Subsidiaries, together with Holdings, individually a
"Guarantor" and collectively the "Guarantors"), the lenders party thereto and
NationsBank, N.A., as agent entered into that certain Amended and Restated
Credit Agreement dated as of March 24, 1997 which provided a $205 million
credit facility to the Borrower (the "Prior Credit Agreement"). The credit
facility provided pursuant to the Prior Credit Agreement replaced and
refinanced the credit facilities provided to the Borrower by NationsBank, N.A.,
as agent and certain other lenders pursuant to a credit agreement dated as of
December 7, 1995.
WHEREAS, the obligations of the Borrower to NationsBank, N.A., as
agent and various other lenders under the Prior Credit Agreement are secured by
a Mortgage and Security Agreement dated as of December 7, 1995 recorded as
Document No. __________ in the land records of ____________________, as
modified by that certain First Amendment to Mortgage and Security Agreement
dated as of January 12, 1996 recorded as Document No. __________ in the land
records of ____________________, and that certain Second Amendment to Mortgage
and Security Agreement dated as of March 24, 1997 recorded as Document No.
__________ in the land records of ____________________, covering certain real
property located in __________ as particularly described on Exhibit A attached
thereto
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and hereto, and the improvements and personal property located thereon (the
"Prior Mortgage").
WHEREAS, pursuant to that certain Amended and Restated Credit
Agreement dated as of the date hereof (as amended, modified, extended, renewed
or replaced from time to time, the "Credit Agreement") among the Borrower, the
Guarantors, the Collateral Agent in its capacity as Administrative Agent (the
"Administrative Agent"), Bankers Trust Company, as Documentation Agent (the
"Documentation Agent") and various other banks and financial institutions as
may now or hereafter become a party thereto (such banks and financial
institutions, together with their successors and assigns, may hereafter be
referred to collectively as the "Lenders" and individually as a "Lender"), the
Lenders have agreed to amend and restate the Prior Credit Agreement to (i)
provide up to $475 million of indebtedness to the Borrower and (ii) extend the
final maturity of the credit facilities provided under the Prior Credit
Agreement. Terms used herein and not otherwise defined shall have the meaning
ascribed to such terms in the Credit Agreement.
WHEREAS, the Lenders have required, as a condition precedent to making
Extensions of Credit pursuant to the terms of the Credit Agreement, that the
Borrower amend and restate the Prior Mortgage as set forth herein.
W I T N E S S E T H:
The Borrower, in consideration of the indebtedness herein recited and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, irrevocably grants, releases, sells, remises, bargains,
assigns, pledges, warrants, mortgages, transfers and conveys to the Collateral
Agent and the Collateral Agent's successors and assigns, subject to the further
terms of this Mortgage, all of the following described land, real property
interests, buildings, improvements, fixtures, furniture and appliances and
other personal property:
(a) All that tract or parcel of land and other real property
interests in ____________________ more particularly described in Exhibit A
attached hereto and made a part hereof (the "Land"); and
(b) All buildings and improvements of every kind and description
now or hereafter erected or placed on the aforesaid Land (the "Improvements")
and all materials intended for construction, reconstruction, alteration and
repair of such Improvements now or hereafter erected thereon, all of which
materials shall be deemed to be included within the premises hereby conveyed
immediately upon the delivery thereof to the aforesaid Land, and all fixtures
and articles of personal property now or hereafter owned by the Borrower and
attached to or contained in and used in connection with the aforesaid Land and
Improvements including, but not limited to, all furniture, furnishings,
apparatus, machinery, equipment, motors, elevators, fittings, radiators,
ranges, refrigerators, awnings, shades, screens, blinds, carpeting, office
equipment and other furnishings and all plumbing, heating, lighting, cooking,
laundry,
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ventilating, refrigerating, incinerating, air conditioning and sprinkler
equipment and fixtures and appurtenances thereto and all renewals or
replacements thereof or articles in substitution thereof, whether or not the
same are or shall be attached to the Land and Improvements in any manner (the
"Tangible Personalty") and all proceeds of the Tangible Personalty
(hereinafter, the Land, Improvements and Tangible Personalty may be
collectively referred to as the "Premises").
TO HAVE AND HOLD the same, together with all privileges,
hereditaments, easements and appurtenances thereunto belonging, to the
Collateral Agent and the Collateral Agent's successors and assigns to secure
the indebtedness herein recited;
And, as additional security for said indebtedness, the Borrower hereby
conditionally assigns to the Collateral Agent all right, title and interest of
the Borrower in and to the security deposits, rents, issues, profits and
revenues of the Premises from time to time accruing (the "Rents and Profits"),
reserving only the right to the Borrower to collect and enjoy the same as long
as there shall exist no Event of Default (as defined in Article III).
As additional collateral and further security for the indebtedness,
the Borrower does hereby assign to the Collateral Agent and grants to the
Collateral Agent a security interest in all of the right, title and interest of
the Borrower in and to any and all insurance policies and proceeds thereof and
any and all leases (including equipment leases), rental agreements, sales
contracts, management contracts, franchise agreements, construction contracts,
architects' contracts, technical services agreements, or other contracts,
licenses and permits now or hereafter affecting the Premises (the "Intangible
Personalty") or any part thereof, and the Borrower agrees to execute and
deliver to the Collateral Agent such additional instruments, in form and
substance reasonably satisfactory to the Collateral Agent, as may hereafter be
requested by the Collateral Agent to evidence and confirm said assignment;
provided, however, that acceptance of any such assignment shall not be
construed as a consent by the Collateral Agent to any lease, rental agreement,
management contract, franchise agreement, construction contract, technical
services agreement or other contract, license or permit, or to impose upon the
Collateral Agent any obligation with respect thereto.
All the Tangible Personalty which comprise a part of the Premises
shall, as far as permitted by law, be deemed to be affixed to the aforesaid
Land and conveyed therewith. As to the balance of the Tangible Personalty and
the Intangible Personalty, this Mortgage shall be considered to be a security
agreement which creates a security interest in such items for the benefit of
the Collateral Agent. In that regard, the Borrower grants to the Collateral
Agent all of the rights and remedies of a secured party under the __________
Uniform Commercial Code.
The Borrower and the Collateral Agent covenant, represent and agree as
follows:
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ARTICLE I
Secured Obligations
1.1 Obligations Secured. The Administrative Agent, the Documentation
Agent and the Lenders have agreed to establish a $475,000,000 credit facility
(hereinafter the loans and extensions of credit thereunder may be called the
"Loans") in favor of the Borrower pursuant to the terms of the Credit Agreement
and as evidenced by (i) those revolving credit promissory notes of the Borrower
(as referenced and defined in the Credit Agreement, as amended, modified,
supplemented, extended, renewed or replaced from time to time, the "Revolving
Notes"), (ii) those tranche A term loan promissory notes of the Borrower (as
referenced and defined in the Credit Agreement, as amended, modified,
supplemented, extended, renewed or replaced from time to time, the "Tranche A
Term Notes"), (iii) those tranche B term loan promissory notes of the Borrower
(as referenced and defined in the Credit Agreement, as amended, modified,
supplemented, extended, renewed or replaced from time to time, the "Tranche B
Term Notes") (hereinafter the Revolving Notes, the Tranche A Term Notes and the
Tranche B Term Notes may be referred to as the "Notes") and (iv) those letters
of credit for the account of the Borrower or any other Credit Party (as
referenced in the Credit Agreement, the "Letters of Credit").
1.2 Amount Secured. This Mortgage secures all present and future
advances and extensions of credit that may subsequently be made to the Borrower
under the Credit Documents and all other indebtedness and obligations of the
Borrower to the Administrative Agent or the Lenders, now or hereafter existing
that relates to the Credit Documents.
1.3 Maturity Date. (i) Payment by the Borrower of the principal
and interest on the Revolving Loans, Tranche A Term Loans and Tranche B Term
Loans and (ii) reimbursement by the Borrower of any drawings on Letters of
Credit, will be in accordance with the Credit Agreement, which Credit Agreement
provides for the payment on the Revolving Notes and Tranche A Term Notes and
reimbursement on the Letters of Credit on or before October 2, 2003, which is
the final maturity date of the Revolving Notes, Tranche A Term Notes and
Letters of Credit and for the payment on the Tranche B Term Notes on or before
October 2, 2004, which is the final maturity date of the Tranche B Term Notes.
ARTICLE II
The Borrower's Covenants, Representations and Agreements
2.1 Title to Property. The Borrower represents and warrants that it
is seized of the Land, the Improvements (and any fixtures) and the Tangible
Personalty (to the extent such Tangible Personalty constitutes fixtures) in fee
(and has title to any appurtenant easements) and has the right to convey the
same, that title to such property is free and clear of all encumbrances except
for the matters shown on the title insurance policy accepted by the Collateral
Agent in connection with this Mortgage (the "Permitted Encumbrances") and any
Permitted Liens, and
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that it will warrant and defend the title to such property except for the
Permitted Encumbrances and the Permitted Liens against the claims of all
persons or parties. As to the balance of the Premises, the Rents and Profits
and the Intangible Personalty, the Borrower represents and warrants that it has
title to such property, that it has the right to convey such property except
for Permitted Liens and that it will warrant and defend such property against
the claims of all persons or parties.
2.2 Taxes and Fees. The Borrower will pay on or before the date that
the same become delinquent all taxes, general and special assessments, special
service area charges or taxes, taxes or charges levied pursuant to any tax
increment financing program, area or district which may affect the Premises
regardless of how such charges or taxes are designated by the government
authority imposing the same, insurance premiums, permit fees, inspection fees,
license fees, water and sewer charges, franchise fees and equipment rents and
any other charges or fees against it or the Premises (and the Borrower, upon
request of the Collateral Agent, will submit to the Collateral Agent receipts
evidencing said payments); provided, however, that the Borrower shall not be
required to pay any tax or assessment, which it is diligently contesting in
good faith by appropriate proceedings, and for which the Borrower has furnished
the Collateral Agent with bonds or other security in form and amount acceptable
to the Collateral Agent in its sole discretion, but only so long as there is no
liability to the Collateral Agent or the Lenders or risk of loss, sale or
forfeiture of any portion of the Premises or collateral pledged to the
Collateral Agent in excess of such bonds or other security.
2.3 Reimbursement. Subject to the Borrower's right to contest
contained in Section 2.2 hereof, the Borrower agrees that if it shall fail to
pay on or before the date that the same become delinquent any tax, assessment
or charge levied or assessed against the Premises or any utility charge,
whether public or private, or any insurance premium or if it shall fail to
procure the insurance coverage and the delivery of the insurance certificates
required hereunder, or if it shall fail to pay any other charge or fee
described in Sections 2.2, 2.3, 2.6 or 2.9 hereof, then the Collateral Agent,
at its option, may pay or procure the same. The Borrower will reimburse the
Collateral Agent upon demand for any sums of money paid by the Collateral Agent
pursuant to this Section, together with interest on each such payment at the
default rate of interest set forth in the Credit Agreement, and all such sums
and interest thereon shall be secured hereby.
2.4 Additional Documents. The Borrower agrees to execute and deliver
to the Collateral Agent, concurrently with the execution of this Mortgage and
upon the request of the Collateral Agent from time to time hereafter, all
financing statements and other documents reasonably required to perfect and
maintain the security interest created hereby. The Borrower hereby irrevocably
(as long as the Loans remain unpaid and the Commitments remain outstanding)
makes, constitutes and appoints the Collateral Agent as the true and lawful
attorney of the Borrower to sign the name of the Borrower (provided the
Borrower has failed or refused to timely execute such documents upon request of
the Collateral Agent) on any financing statement, continuation of financing
statement or similar document required to perfect or continue such security
interests.
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2.5 Sale or Encumbrance. Except as permitted by the Credit
Agreement, the Borrower will not sell, encumber or otherwise dispose of any of
the Tangible Personalty except to incorporate such into the Improvements or
replace such with goods of quality and value at least equal to that replaced.
In the event the Borrower sells or otherwise disposes of any of the Tangible
Personalty in contravention of the foregoing sentence, the Collateral Agent's
security interest in the proceeds of the Tangible Personalty shall continue
pursuant to this Mortgage.
2.6 Fees and Expenses. The Borrower will pay or reimburse the
Collateral Agent for all reasonable attorneys' fees, costs and expenses
incurred by the Collateral Agent in any action, legal proceeding or dispute of
any kind which affects the Loans, the interest created herein, the Premises,
the Rents and Profits or the Intangible Personalty, including but not limited
to, any foreclosure of this Mortgage, enforcement of payment of the Notes or
any other amount due under the Credit Documents, any condemnation action
involving the Premises or any action to protect the security hereof. Any such
amounts paid by the Collateral Agent shall be due and payable upon demand and
shall be secured hereby.
2.7 Leases and Other Agreements. Without first obtaining on each
occasion the written approval of the Collateral Agent, the Borrower shall not,
except as permitted by the Credit Agreement, enter into, cancel, surrender or
modify or permit the cancellation of any lease (including any equipment lease),
rental agreement, management contract, franchise agreement, construction
contract, technical services agreement or other contract, license or permit now
or hereafter affecting the Premises, or modify any of said instruments, or
accept or permit to be made, any prepayment of any installment of rent or fees
thereunder; provided, however, the Borrower may take any of the foregoing
actions without the consent of the Collateral Agent if the same will not cause
a Material Adverse Effect. Certified copies of each such approved lease or
other agreement shall be submitted to the Collateral Agent as soon as possible.
The Borrower shall faithfully keep and perform, or cause to be kept and
performed, in all material respects, all of the covenants, conditions, and
agreements contained in each of said instruments, now or hereafter existing, on
the part of the Borrower to be kept and performed (including performance of all
covenants to be performed under any and all leases of the Premises or any part
thereof) and shall at all times use commercially reasonable efforts to enforce,
with respect to each other party to said instruments, all obligations,
covenants and agreements by such other party to be performed thereunder.
2.8 Maintenance of Premises. Except as provided otherwise in the
Credit Agreement, the Borrower will abstain from and will not permit the
commission of waste in or about the Premises and will maintain, or cause to be
maintained, the Premises in good condition and repair, reasonable wear and tear
excepted.
2.9 Insurance.
(a) Liability: The Borrower covenants to maintain or
cause to be maintained, general accident and public liability insurance against
all claims for bodily injury, death or property damage occurring upon, in or
about any part of the Premises. The policies must be from companies and in
amounts reasonably satisfactory to the Collateral Agent.
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(b) Hazard: The Borrower covenants to maintain or cause
to be maintained at all times hazard insurance on the Premises. The policy
must be from a company satisfactory to the Collateral Agent, must be in an
amount reasonably satisfactory to the Collateral Agent, can only include
co-insurance provisions satisfactory to the Collateral Agent, must include
provisions for a minimum 30 day advance written notice to the Collateral Agent
of any intended policy cancellation or non-renewal, and must designate the
Collateral Agent as mortgagee and loss payee in a standard mortgagee
endorsement, as its interests may appear.
(c) Flood: If any part of the Improvements is located in
an area having "special flood hazards" as defined in the Federal Flood Disaster
Protection Act of 1973, a flood insurance policy naming the Collateral Agent as
mortgagee must be submitted to the Collateral Agent. The policy must be from a
company and in an amount satisfactory to the Collateral Agent and must include
provisions for a minimum 30-day advance written notice to the Collateral Agent
of any intended policy cancellation or non-renewal.
(d) Delivery of Policies and Renewals: The Borrower
agrees to deliver to the Collateral Agent, as additional security hereto, the
original policies of such insurance as is required by the Collateral Agent
pursuant to subsections (a), (b) and (c) hereof and of any additional insurance
which shall be taken out upon the Premises while any part of the Loans shall
remain unpaid. Renewals of such policies shall be so delivered at least ten
(10) days before any such insurance shall expire. In the event the Borrower
fails to maintain insurance as required hereunder the Collateral Agent has the
right to procure such insurance whether or not the Borrower's failure to
maintain such insurance constitutes an Event of Default (as defined in Article
III) or an event or condition which, upon the giving of notice or the passage
of time, or both, would constitute an Event of Default. Any amounts paid by
the Collateral Agent for insurance shall be due and payable to the Collateral
Agent upon demand and shall be secured by this Mortgage.
(e) Proof of Loss; Claims Settlement: In the event of
loss, the Borrower shall give prompt notice thereof to the insurance carrier
and the Collateral Agent, and the Collateral Agent may make proof of loss if
not made promptly by the Borrower. The Collateral Agent is hereby authorized,
in its sole discretion, to adjust, compromise and collect the proceeds of any
insurance claims for application in accordance with subsection (f) below.
(f) Use of Proceeds: In case of any material loss,
damage to or destruction of the Premises or any part thereof, the Borrower
shall promptly give written notice thereof to the Collateral Agent generally
describing the nature and extent of such damage or destruction. In case of any
loss, damage to or destruction of the Premises or any part thereof, the
Borrower, whether or not the insurance proceeds, if any, received on account of
such damage or destruction shall be sufficient for that purpose, at the
Borrower's cost and expense, will promptly repair or replace the Premises so
lost, damaged or destroyed; provided, however, that the Borrower need not
repair or replace the Premises so lost, damaged or destroyed to the extent the
failure to make such repair or replacement (i) is desirable to the proper
conduct of the business of the Borrower at the Premises in the ordinary course
and otherwise in the best interest of the Borrower and (ii)
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would not materially impair the rights and benefits of the Collateral Agent or
the Lenders under this Mortgage or any other Credit Document. In the event the
Borrower shall receive any proceeds of such insurance in a net amount in excess
of $5,000,000, the Borrower will immediately pay over such proceeds to the
Collateral Agent for payment of the Credit Party Obligations; provided,
however, the Collateral Agent agrees to release such insurance proceeds to the
Borrower for restoration or repair of the Premises if, but only if, (A) no
Default or Event of Default shall have occurred or be continuing at the time of
release, (B) written application for such release is received by the Collateral
Agent from the Borrower within 30 days of receipt of such proceeds and (C) the
Collateral Agent has received evidence reasonable satisfactory to it that the
Premises lost, damaged or destroyed has been or will be replaced or restored to
its condition immediately prior to the loss, destruction or other event giving
rise to the payment of such insurance proceeds or such proceeds are used in a
manner reasonably acceptable to the Collateral Agent. All insurance proceeds
shall be subject to the security interest of the Collateral Agent and Lenders
under this Mortgage. Wherever provision is made herein for insurance policies
to bear mortgagee clauses or other loss payable clauses or endorsements in
favor of the Collateral Agent, or to confer authority upon the Collateral Agent
to settle or participate in the settlement of losses under policies of
insurance or to hold and disburse or otherwise control use of insurance
proceeds, from and after the entry of judgment of foreclosure all such rights
and powers of the Collateral Agent shall continue in the Collateral Agent as
judgment creditor or mortgagee until confirmation of sale.
2.10 Eminent Domain. The Borrower assigns to the Collateral Agent
any proceeds or awards which may become due by reason of any condemnation or
other taking for public use of the whole or any part of the Premises or any
rights appurtenant thereto, and the Collateral Agent may, at its option, either
apply the same to the Notes or release the same to the Borrower without thereby
incurring any liability to any other person. The Borrower agrees to execute
such further assignments and agreements as may be reasonably required by the
Collateral Agent to assure the effectiveness of this Section. In the event any
governmental agency or authority shall require or commence any proceedings for
the demolition of any buildings or structures comprising a part of the
Premises, or shall commence any proceedings to condemn or otherwise take
pursuant to the power of eminent domain a material portion of the Premises, the
Borrower shall promptly notify the Collateral Agent of such requirement or
commencement of proceeding (for demolition, condemnation or other taking).
2.11 Transfer of Premises. Except as provided otherwise in the
Credit Agreement, the Borrower covenants and agrees with the Collateral Agent
that the Borrower shall not sell, transfer, convey, mortgage, encumber or
otherwise dispose of the Premises, the Rents and Profits or the Intangible
Personalty or any part thereof or any interest therein or engage in subordinate
financing with respect thereto during the term of this Mortgage without the
prior written consent of the Collateral Agent.
2.12 Compliance with Law. Except as provided otherwise in the Credit
Agreement, the Borrower will comply with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, all Governmental
Authorities in respect of the ownership of the
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Premises (including applicable statutes, regulations, orders and restrictions
relating to environmental standards and controls).
2.13 Inspection. The Borrower will permit the Collateral Agent, or
its agents, at all reasonable times and with advance prior notice to enter and
pass through or over the Premises for the purpose of inspecting same; provided,
however, unless an Event of Default shall have occurred and be continuing
inspections shall be at reasonable times during the Borrower's normal business
hours.
2.14 Releases and Waivers. The Borrower agrees that no release by
the Collateral Agent of any portion of the Premises, the Rents and Profits or
the Intangible Personalty, no subordination of lien, no forbearance on the part
of the Lenders or the Collateral Agent to collect on the Loans, or any part
thereof, no waiver of any right granted or remedy available to the Collateral
Agent and no action taken or not taken by the Collateral Agent shall in any way
have the effect of releasing the Borrower from full responsibility to the
Lenders and the Collateral Agent for the complete discharge of each and every
of the Borrower's obligations hereunder.
ARTICLE III
Event of Default
An Event of Default shall exist under the terms of this Mortgage upon
the existence of an Event of Default under the terms of the Credit Agreement.
ARTICLE IV
Foreclosure
4.1 Acceleration of Loan; Foreclosure. Upon the occurrence and
during the continuance of an Event of Default the entire balance of the Loans
and any other obligations due under the Credit Documents, including all accrued
interest, shall, at the option of the Collateral Agent, become immediately due
and payable. Upon failure to pay the Loans or reimburse any other amounts due
under the Credit Documents in full at any stated or accelerated maturity, the
Collateral Agent shall have the right to foreclose this Mortgage in any manner
permitted by applicable law and in accordance with the terms of this Mortgage
for the indebtedness and obligations secured hereby. If the foreclosure is for
less than all of the indebtedness secured hereby, the lien of this Mortgage
shall continue for the balance of the indebtedness and obligations secured
hereby. Without limitation of any other provisions of this Mortgage, if the
Collateral Agent shall incur or expend any sums, including without limitation
attorneys' fees, whether or not in connection with any action or proceeding, to
sustain the lien of this Mortgage or its priority, or to protect or enforce any
of the Collateral Agent's rights hereunder, or to recover any indebtedness
secured hereby, all such sums shall become immediately due and payable by the
Borrower with interest thereon. All such sums shall be secured by this
Mortgage
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and shall be a lien on the Premises prior to any right, title, interest, or
claim, in, to or upon the Premises attaching or accruing subsequent to the lien
of this Mortgage.
4.2 Fees and Expenses. Without limitation of Section 4.1, in any
suit to foreclose the lien hereof, the Collateral Agent shall be allowed to
include as additional indebtedness secured hereby in the decree for sale all
costs and expenses which may be paid or incurred by or on behalf of the
Borrower or any holder or holders of the Notes or other indebtedness secured
hereby (plus interest thereon) for attorneys' fees, appraiser's fees,
receiver's costs and expenses, insurance, taxes, outlays for documentary and
expert evidence, costs for preservation of the Premises, stenographer's
charges, publication costs and costs of procuring all abstracts of title, title
searches and examinations, guarantee policies and similar data and assurances
with respect to title as the Collateral Agent may deem to be reasonably
necessary either to prosecute such suit or to evidence to bidders at any sale
which may be had pursuant to such decree the true condition of the title to or
value of the Premises or for any other reasonable purpose. Subject to
applicable law, the amount of any such costs and expenses which may be paid or
incurred after the decree for sale is entered may be estimated and the amount
of such estimate may be allowed and included as additional indebtedness secured
hereby in the decree for sale.
4.3 Proceeds of Sale. Following a foreclosure sale, the proceeds of
such sale shall, subject to applicable law, be applied in accordance with
Section 9.3 of the Credit Agreement.
ARTICLE V
Additional Rights and Remedies of the Collateral Agent
5.1 Rights Upon Maturity or an Event of Default. Upon the occurrence
and during the continuance of an Event of Default, the Collateral Agent,
immediately and without additional notice and without liability therefor to the
Borrower, except for gross negligence, and subject to and as permitted by
applicable law, may do or cause to be done any or all of the following: (a)
take physical possession of the Premises; (b) exercise its right to collect the
Rents and Profits; (c) enter into contracts for the completion, repair and
maintenance of the Improvements thereon; (d) expend Loan funds and any rents,
income and profits derived from the Premises for payment of any taxes,
insurance premiums, assessments and charges for completion, repair and
maintenance of the Improvements, preservation of the lien of this Mortgage and
satisfaction and fulfillment of any liabilities or obligations of the Borrower
arising out of or in any way connected with the construction of Improvements on
the Premises whether or not such liabilities and obligations in any way affect,
or may affect, the lien of this Mortgage; (e) enter into leases demising the
Premises or any part thereof; (f) take such steps to protect and enforce the
specific performance of any covenant, condition or agreement in the Notes, this
Mortgage, the Credit Agreement, or the other Credit Documents, or to aid the
execution of any power herein granted; and (g) generally, supervise, manage,
and contract with reference to the Premises as if the Collateral Agent were
equitable owner of the Premises. Notwithstanding the occurrence of an Event of
Default or acceleration of the Loans or any other indebtedness secured hereby,
the Collateral Agent shall continue to have the right to pay money, whether or
not Loan funds, for
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the purposes described in Sections 2.2, 2.3, 2.6 and 2.9 hereof, and all such
sums and interest thereon shall be secured hereby. The Borrower also agrees
that any of the foregoing rights and remedies of the Collateral Agent may be
exercised at any time independently of the exercise of any other such rights
and remedies, and the Collateral Agent may continue to exercise any or all such
rights and remedies until the Event(s) of Default are cured with the consent of
the Collateral Agent or until foreclosure and the conveyance of the Premises to
the high bidder or until the Credit Agreement is no longer in effect or the
Loans and other indebtedness secured hereby are otherwise satisfied or paid in
full.
5.2 Appointment of Receiver. If upon the maturity of the Loans or
any other amounts or obligations under the Credit Documents, the same remain
unpaid or unsatisfied, or upon the occurrence and continuance of an Event of
Default, the Agent shall be entitled, without additional notice and without
regard to the adequacy of any security for the Loans or other obligations under
the Credit Documents or the solvency of any party bound for its payment, to
seek the appointment of a receiver to take possession of and to operate the
Premises, and to collect the rents, issues, profits, and income thereof, all
expenses of which shall be added to the Loans or other indebtedness under the
Credit Documents and secured hereby. The receiver shall have all the rights
and powers permitted under the laws of the State of __________. All costs and
expenses (including receiver's fees, attorney's fees and costs incurred in
connection with the appointment of a receiver) shall be secured by this
Security Deed. Notwithstanding the appointment of any receiver, trustee or
other custodian, the Agent shall be entitled to retain possession and control
of any cash or other instruments, at the time held by or payable or deliverable
under the terms of the Security Deed to the Agent to the fullest extent
permitted by law.
5.3 Waivers. No waiver of any Event of Default shall at any time
thereafter be held to be a waiver of any rights of the Collateral Agent stated
anywhere in the Notes, this Mortgage, the Credit Agreement or any of the other
Credit Documents, nor shall any waiver of a prior Event of Default operate to
waive any subsequent Event(s) of Default. All remedies provided in this
Mortgage, in the Notes, in the Credit Agreement and in the other Credit
Documents are cumulative and may, at the election of the Collateral Agent, be
exercised alternatively, successively, or in any manner and are in addition to
any other rights provided by law.
5.4 Foreclosure as to Matured Debt. Upon the occurrence of an
Event of Default, the Collateral Agent shall have the right to proceed with
foreclosure (judicial or nonjudicial) in accordance with applicable law of the
liens and security interests hereunder without declaring the entire secured
indebtedness due, and in such event any such foreclosure sale may be made
subject to the unmatured part of the secured indebtedness; and any such sale
shall not in any manner affect the unmatured part of the secured indebtedness,
but as to such unmatured part this Mortgage shall remain in full force and
effect just as though no sale had been made. The proceeds of such sale shall
be applied as provided in Section 4.3 hereof.
5.5 Delivery of Possession After Foreclosure. In the event there
is a foreclosure sale hereunder and at the time of such sale, the Borrower or
the Borrower's heirs, devisees, representatives, successors or assigns are
occupying or using the Premises, or any part thereof, each and all immediately
shall become the tenant of the purchaser at such sale, which tenancy
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shall be a tenancy from day to day, terminable at the will of either landlord
or tenant, at a reasonable rental per day based upon the value of the property
occupied, such rental to be due daily to the purchaser; and to the extent
permitted by applicable law, the purchaser at such sale, notwithstanding any
language herein apparently to the contrary, shall have the sole option to
demand possession immediately following the sale or to permit the occupants to
remain as tenants at will. In the event the tenant fails to surrender
possession of said property upon demand, the purchaser shall be entitled to
institute and maintain a summary action for possession of the property (such as
an action for forcible detainer) in any court having jurisdiction.
ARTICLE VI
General Conditions
6.1 Terms. The singular used herein shall be deemed to include the
plural; the masculine deemed to include the feminine and neuter; and the named
parties deemed to include their heirs, successors and assigns. The term
"Lender" shall include any payee of the indebtedness hereby secured or any
transferee thereof whether by operation of law or otherwise.
6.2 Notices. All notices and other communications required to be
given hereunder shall have been given and shall be effective (i) when
delivered, (ii) when transmitted via telecopy (or other facsimile device) to
the number set out below, (iii) the Business Day following the day on which the
same has been delivered prepaid to a reputable national overnight air courier
service, or (iv) the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address or telecopy numbers set forth below, or at
such other address as such party may specify by written notice to the other
parties hereto.
to the Borrower:
IPC, Inc.
000 Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Phone: 000-000-0000
Fax: 000-000-0000
to the Collateral Agent:
NationsBank, N.A.
Sears Tower
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Phone: 000-000-0000
Fax: 000-000-0000
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6.3 Greater Estate. In the event that the Borrower is the owner of a
leasehold estate with respect to any portion of the Premises and, prior to the
satisfaction of the indebtedness and the cancellation of this Mortgage of
record, the Borrower obtains a fee estate in such portion of the Premises,
then, such fee estate shall automatically, and without further action of any
kind on the part of the Borrower, be and become subject to the security lien of
this Mortgage.
6.4 Subrogation. If all or any part of the proceeds of the Loans
or any other indebtedness secured hereby and made by the Collateral Agent to
the Borrower, or any amount paid out or advanced by the Collateral Agent, shall
be used directly or indirectly to pay off, discharge or satisfy, in whole or in
part, any prior or junior lien or encumbrance upon the Premises, or any part
thereof, then all such amounts shall constitute part of the indebtedness
secured hereby and the Collateral Agent shall be subrogated to such other lien
or encumbrance and to any additional security held by the holder thereof and
shall have the benefit of the priority of all of same.
6.5 Imposition of Tax. In the event of the passage of any state,
federal, municipal or other governmental law, order, rule or regulation, in
any manner changing or modifying the laws now in force governing the taxation
of debts secured by mortgages or the manner of collecting taxes so as to affect
adversely the Collateral Agent or the Lenders, the Borrower will promptly pay
any such tax on or before the due date thereof.
6.6 Invalidation of Provisions. Invalidation of any one or more of
the provisions of this Mortgage shall in no way affect any of the other
provisions hereof, which shall remain in full force and effect.
6.7 Headings. The captions and headings herein are inserted only as
a matter of convenience and for reference and in no way define, limit, or
describe the scope of this Mortgage nor the intent of any provision hereof.
6.8 Conflicting Terms. In the event the terms and conditions of this
Mortgage conflict with the terms and conditions of the Credit Agreement, the
terms and conditions of the Credit Agreement shall control and supersede the
provisions of this Mortgage with respect to such conflicts. Notwithstanding
the foregoing, nothing contained herein is intended or shall be construed to
affect or alter any choice of law or governing law provision contained in any
other Credit Document, except to the extent such choice of law or governing law
provision shall apply to this Mortgage.
6.9 GOVERNING LAW. THIS MORTGAGE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF __________.
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IN WITNESS WHEREOF, the Borrower has executed this Mortgage under seal
as of the above written date.
IPC, INC., a Delaware corporation
ATTEST: By:
----------------------------------------
Name:
-------------------------------------
By: Title:
------------------- -------------------------------------
Title: _____ Secretary
(Corporate Seal)
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STATE OF
------------
COUNTY OF
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I _________________________, a Notary Public, in and for said County,
in the State aforesaid, DO HEREBY CERTIFY that ______________ President of IPC,
INC., a Delaware corporation, and ___________ Secretary of said corporation,
are personally known to me to be the same persons whose names are subscribed to
the foregoing instrument and as such ______________________ President and
____________ Secretary, respectively, appeared before me this day in person and
acknowledged that they signed and delivered said instrument as their own free
and voluntary act and as the free and voluntary act of said corporation, for
the uses and purposes therein set forth; and said _______________ Secretary
then and there acknowledged that (s)he, as custodian of the corporate seal of
said corporation, did affix the corporate seal of said corporation to said
instrument as his/her own free and voluntary act and as the free and voluntary
act of said corporation, for the uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal, this ___ day of ___________, 1997.
--------------------------------
Notary Public
My Commission expires:
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