EXHIBIT 4.12
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Xxxxx X. Xxxxxxxxx Company,
Mortgagor,
to
Fleet National Bank,
as Administrative Agent,
Mortgagee
___________________________________________________
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
___________________________________________________
Dated as of March 24, 1998
This instrument affects certain real and personal property
located in _______ County,
State of ________.
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Record and return to:
Xxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
This instrument was prepared by the above-named attorney.
Notice: This instrument contains inter alia obligations which may provide for:
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(a) a variable rate of interest and/or
(b) future and/or revolving credit advances or readvances, which when
made, shall have the same priority as advances or readvances made
on the date hereof whether or not (i) any advances or readvances
were made on the date hereof and (ii) any indebtedness is
outstanding at the time any advance or re-advance is made.
Notwithstanding anything to the contrary contained herein, the maximum
principal indebtedness secured under any contingency by this
instrument shall in no event exceed $100,000,000.00.
TABLE OF CONTENTS
Page
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ARTICLE I
COVENANTS AND AGREEMENTS OF THE MORTGAGOR
SECTION 1.1. Payment of Secured Obligations................................ 4
SECTION 1.2. Title to Collateral, etc...................................... 5
SECTION 1.3. Title Insurance............................................... 5
SECTION 1.3.1. Title Insurance Policy........................................ 5
SECTION 1.3.2. Title Insurance Proceeds...................................... 5
SECTION 1.4. Recordation................................................... 6
SECTION 1.5. Payment of Impositions, etc................................... 6
SECTION 1.6. Insurance and Legal Requirements.............................. 6
SECTION 1.7. Security Interests, etc....................................... 7
SECTION 1.8. Permitted Contests............................................ 7
SECTION 1.9. Leases........................................................ 8
SECTION 1.10. Compliance with Instruments................................... 8
SECTION 1.11. Maintenance and Repair, etc................................... 8
SECTION 1.12. Alterations, Additions, etc................................... 8
SECTION 1.13. Acquired Property Subject to Lien............................. 9
SECTION 1.14. Assignment of Rents, Proceeds, etc............................ 9
SECTION 1.15. No Claims Against the Mortgagee............................... 10
SECTION 1.16. Indemnification............................................... 10
SECTION 1.17. No Credit for Payment of Taxes................................ 11
SECTION 1.18. Application of Proceeds of Term Loans......................... 11
SECTION 1.19. No Transfer of the Property................................... 11
SECTION 1.20. Security Agreement............................................ 12
SECTION 1.21. Representations and Warranties................................ 13
SECTION 1.22. Mortgagor's Covenants......................................... 13
ARTICLE II
INSURANCE; DAMAGE, DESTRUCTION OR TAKING, ETC.
SECTION 2.1. Insurance..................................................... 13
SECTION 2.2. Damage, Destruction or Taking; Mortgagor to Give Notice;
Assignment of Awards.......................................... 13
SECTION 2.3. Application of Proceeds and Awards............................ 14
SECTION 2.4. Total Taking and Total Destruction............................ 15
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TABLE OF CONTENTS
(continued)
Page
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ARTICLE III
EVENTS OF DEFAULT; REMEDIES, ETC.
SECTION 3.1. Events of Default; Acceleration............................... 16
SECTION 3.2. Legal Proceedings; Foreclosure................................ 17
SECTION 3.3. Power of Sale................................................. 17
SECTION 3.4. Uniform Commercial Code Remedies.............................. 18
SECTION 3.5. Mortgagee Authorized to Execute Deeds, etc.................... 18
SECTION 3.6. Purchase of Collateral by Mortgagee........................... 18
SECTION 3.7. Receipt a Sufficient Discharge to Purchaser................... 18
SECTION 3.8. Waiver of Appraisement, Valuation, etc........................ 18
SECTION 3.9. Sale a Bar Against Mortgagor.................................. 19
SECTION 3.10. Secured Obligations to Become Due on Sale..................... 19
SECTION 3.11. Application of Proceeds of Sale and Other Moneys.............. 19
SECTION 3.12. Appointment of Receiver....................................... 20
SECTION 3.13. Possession, Management and Income............................. 20
SECTION 3.14. Right of Mortgagee to Perform Mortgagor's Covenants, etc...... 20
SECTION 3.15. Subrogation................................................... 21
SECTION 3.16. Remedies, etc., Cumulative.................................... 21
SECTION 3.17. Provisions Subject to Applicable Law.......................... 21
SECTION 3.18. No Waiver, etc................................................ 21
SECTION 3.19. Compromise of Actions, etc.................................... 22
ARTICLE IV
DEFINITIONS
SECTION 4.1. Terms Defined in this Mortgage................................ 22
SECTION 4.2. Use of Defined Terms.......................................... 24
SECTION 4.3. Credit Agreement Definitions.................................. 24
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TABLE OF CONTENTS
(continued)
Page
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ARTICLE V
MISCELLANEOUS
SECTION 5.1. Further Assurances; Financing Statements...................... 24
SECTION 5.1.1. Further Assurances............................................ 24
SECTION 5.1.2. Financing Statements.......................................... 25
SECTION 5.2. Additional Security........................................... 25
SECTION 5.3. Defeasance; Partial Release, etc.............................. 25
SECTION 5.3.1. Defeasance.................................................... 25
SECTION 5.3.2. Partial Release, etc.......................................... 25
SECTION 5.4. Notices, etc.................................................. 26
SECTION 5.5. Waivers, Amendments, etc...................................... 26
SECTION 5.6. Cross-References.............................................. 26
SECTION 5.7. Headings...................................................... 26
SECTION 5.8. Currency...................................................... 26
SECTION 5.9. Governing Law................................................. 26
SECTION 5.10. Successors and Assigns, etc................................... 26
SECTION 5.11. Waiver of Jury Trial; Submission to Jurisdiction.............. 26
SECTION 5.12. Severability.................................................. 27
SECTION 5.13. Loan Document................................................. 27
SECTION 5.14. Usury Savings Clause.......................................... 27
SECTION 5.15. Secured Obligations Increase.................................. 28
EXECUTION PAGE ................................................................... 31
ACKNOWLEDGMENT ................................................................... 32
Schedule 1-A - Legal Description of the Land
Schedule 1-B - Legal Description of the Land
Schedule 2 - Permitted Encumbrances
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MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
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MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE
FILING, dated as of March 24, 1998 (this "Mortgage"), made by Xxxxx X. Xxxxxxxxx
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Company (the "Mortgagor"), having an address at 0000 Xxxx Xxxxx Xxxxxx, Xxxx,
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Xxxxxxxxxx 00000 to Fleet National Bank, having an address at 0 Xxxxxxx Xxxxxx,
0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, as the Administrative Agent under the
Credit Agreement referred to below (together with its successors and assigns
from time to time acting as Administrative Agent under such Credit Agreement,
the "Mortgagee").
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W I T N E S S E T H T H A T:
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WHEREAS, the Mortgagor is on the date of delivery hereof the owner of fee
title to the parcel of land described in Schedule 1 hereto (the "Land") and of
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the Improvements (such term and other capitalized terms used in this Mortgage
having the respective meanings specified or referred to in Article IV);
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WHEREAS, pursuant to the terms, conditions and provisions of the Term Loan
Agreement, dated as of the date hereof (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Xxxxx X.
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Xxxxxxxxx Company (the "Borrower"), as borrower, Various Financial Institutions
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as the Lenders, DLJ Capital Funding, Inc. ("DLJ"), as Syndication Agent, Bankers
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Trust Company, as Documentation Agent, and the Mortgagee, the Lenders have
agreed to make Term Loans to the Borrower in the maximum original principal
amount of ONE HUNDRED MILLION AND 00/100 DOLLARS ($100,000,000.00) having a
Stated Maturity Date of March 31, 2004 (such Term Loans are hereinafter referred
to as the "Credit Extensions").
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WHEREAS, the Mortgagor has duly authorized the execution, delivery and
performance of this Mortgage.
G R A N T:
NOW, THEREFORE, for and in consideration of the premises, and of the mutual
covenants herein contained, and in order to induce the Lenders to make the
Credit Extensions pursuant to the Credit Agreement, and in order to secure the
full, timely and proper payment and performance of and compliance with each and
every one of the Secured Obligations (as hereinafter defined), the Mortgagor
hereby irrevocably grants, bargains, sells, mortgages, warrants, aliens,
demises, releases, hypothecates, pledges, assigns, transfers and conveys to the
Mortgagee and its successors and assigns, forever, all of the following (the
"Collateral"):
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(a) Real Estate. Subject to the Permitted Exceptions (as hereinafter
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defined), all of the Land and all additional lands and estates therein now
owned or hereafter acquired by the Mortgagor for use or development with
the Land or any portion thereof, together with all and singular the
tenements, rights, easements, hereditaments, rights of way, privileges,
liberties, appendages and appurtenances now or hereafter belonging or in
any way pertaining to the Land and such additional lands and estates
therein (including, without limitation, all rights relating to storm and
sanitary sewer, water, gas, electric, railway and telephone services); any
and all development rights, air rights, riparian rights, water, water
rights (if any), water stock, all rights in, to and with respect to any and
all oil, gas, coal, minerals and other substances of any kind or character
underlying or relating to the Land and such additional lands and estates
therein and any interest therein; all estate, claim, demand, right, title
or interest of the Mortgagor in and to any street, road, highway or alley,
vacated or other, adjoining the Land or any part thereof and such
additional lands and estates therein; all strips and gores belonging,
adjacent or pertaining to the Land or such additional lands and estates;
and any after-acquired title to any of the foregoing (herein collectively
referred to as the "Real Estate");
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(b) Improvements. All buildings, structures and other improvements
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and any additions and alterations thereto or replacements thereof, now or
hereafter built, constructed or located upon the Real Estate; and, to the
extent that any of the following items of property constitutes fixtures
under applicable laws, all furnishings, fixtures, fittings, appliances,
apparatus, equipment, machinery, building and construction materials and
other articles of every kind and nature whatsoever and all replacements
thereof, now or hereafter affixed or attached to, placed upon or used in
any way in connection with the complete and comfortable use, enjoyment,
occupation, operation, development and/or maintenance of the Real Estate or
such buildings, structures and other improvements, including, but not
limited to, partitions, furnaces, boilers, oil burners, radiators and
piping, plumbing and bathroom fixtures, refrigeration, heating,
ventilating, air conditioning and sprinkler systems, other fire prevention
and extinguishing apparatus and materials, vacuum cleaning systems, gas and
electric fixtures, incinerators, compactors, elevators, engines, motors,
generators and all other articles of property which are considered fixtures
under applicable law (such buildings, structures and other improvements and
such other property are herein collectively referred to as the
"Improvements"; the Real Estate and the Improvements are herein
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collectively referred to as the "Property");
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(c) Goods. All of Mortgagor's right, title and interest in and to
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all building materials, goods, construction materials, appliances
(including, without limitation, stoves, ranges, ovens, disposals,
refrigerators, water fountains and coolers, fans, heaters, dishwashers,
clothes washers and dryers, water heaters, hood and fan combinations,
kitchen equipment, laundry equipment, kitchen cabinets and other similar
equipment), stocks, beds, mattresses, bedding and linens, supplies, blinds,
window shades, drapes, carpets, floor coverings, manufacturing equipment
and machinery, office equipment, growing plants and shrubberies, control
devices, equipment (including window cleaning,
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building cleaning, swimming pool, recreational, monitoring, garbage, pest
control and other equipment), motor vehicles, tools, furnishings,
furniture, lighting, non-structural additions to the Real Estate and
Improvements and all other tangible property of any kind or character,
together with all replacements thereof, now or hereafter located on or in
or used or useful in connection with the complete and comfortable use,
enjoyment, occupation, operation, development and/or maintenance of the
Property, regardless of whether or not located on or in the Property or
located elsewhere for purposes of storage, fabrication or otherwise (herein
collectively referred to as the "Goods");
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(d) Leases. All rights of the Mortgagor in, to and under any and all
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leases, licenses, occupancy agreements, concessions and other arrangements,
oral or written, now existing or hereafter entered into, whereby any Person
agrees to pay money or any other consideration for the use, possession or
occupancy of, or any estate in, the Property or any portion thereof or
interest therein (herein collectively referred to as the "Leases"), and the
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right, subject to applicable law, upon the occurrence of any Event of
Default hereunder, to receive and collect the Rents (as hereinafter
defined) paid or payable thereunder;
(e) Plans. All rights of the Mortgagor in and to all plans and
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specifications, designs, drawings and other information, materials and
matters heretofore or hereafter prepared relating to the Improvements or
any construction on the Real Estate (herein collectively referred to as the
"Plans");
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(f) Permits. All rights of the Mortgagor, to the extent assignable,
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in, to and under all permits, franchises, licenses, approvals and other
authorizations respecting the use, occupation and operation of the Property
and every part thereof and respecting any business or other activity
conducted on or from the Property, and any product or proceed thereof or
therefrom, including, without limitation, all building permits,
certificates of occupancy and other licenses, permits and approvals issued
by governmental authorities having jurisdiction (herein collectively
referred to as the "Permits");
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(g) Contracts. All right, title and interest of the Mortgagor in and
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to all agreements, contracts, certificates, instruments, warranties,
appraisals, engineering, environmental, soils, insurance and other reports
and studies, books, records, and advertising materials, now or hereafter
obtained or entered into, as the case may be, pertaining to the
construction, use, occupancy, physical operation, management, leasing,
maintenance and/or ownership of the Property and all right, title and
interest of the Mortgagor therein (herein collectively referred to as the
"Contracts");
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(h) Leases of Furniture, Furnishings and Equipment. To the extent
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assignable or transferable, all right, title and interest of the Mortgagor
as lessee in, to and under any leases of furniture, furnishings, equipment
and any other Goods now or hereafter installed in or at any time used in
connection with the Property;
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(i) Rents. All rents, issues, profits, royalties, avails, income and
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other benefits derived or owned, directly or indirectly, by the Mortgagor
from the Property, including, without limitation, all rents and other
consideration payable by tenants, claims against guarantors, and any cash
or other securities deposited to secure performance by tenants, under the
Leases (herein collectively referred to as "Rents");
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(j) Proceeds. All of Mortgagor's right, title and interest in and to
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all proceeds of the conversion, voluntary or involuntary of any of the
foregoing into cash or liquidated claims, including, without limitation,
proceeds of insurance and condemnation awards (herein collectively referred
to as "Proceeds"); and
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(k) Other Property. All other property and rights of the Mortgagor
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of every kind and character relating to the Property, and all proceeds and
products of any of the foregoing (provided, however, that in no event shall
the Collateral include or be deemed to include, and in no event shall the
Mortgagee have or be deemed to have a security interest in, any of the
following property of the Mortgagor to the extent it secures, or purports
to secure, the Revolving Credit Agreement as of the date hereof: inventory
(including raw materials, work-in-process, supplies and finished goods),
accounts receivable (including sellers' rights relating thereto, all
contracts and contract rights relating thereto and all books and records
relating thereto), all collection accounts, deposit accounts and other bank
accounts relating to collection of the foregoing, together with the
proceeds and products of all of the foregoing.
AND, without limiting any of the other provisions of this Mortgage, the
Mortgagor expressly grants to the Mortgagee, as secured party, a security
interest in all of those portions of the Collateral which are or may be subject
to the State Uniform Commercial Code provisions applicable to secured
transactions;
TO HAVE AND TO HOLD the Collateral unto the Mortgagee, its successors and
assigns, forever.
FURTHER to secure the full, timely and proper payment and performance of
the Secured Obligations, the Mortgagor hereby covenants and agrees with and
warrants to the Mortgagee as follows:
ARTICLE I
COVENANTS AND AGREEMENTS OF THE MORTGAGOR
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SECTION 1.1. Payment of Secured Obligations. (i) The Mortgagor agrees
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that:
(a) it will duly and punctually pay and perform or cause to be
paid and performed each of the Obligations at the time and in accordance
with the terms of the Loan Documents, and
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(b) when and as due and payable from time to time in accordance
with the terms hereof or of any other Loan Documents, pay and perform, or
cause to be paid and performed, all other Secured Obligations.
SECTION 1.2. Title to Collateral, etc. The Mortgagor represents and
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warrants to and covenants with the Mortgagee that:
(a) as of the date hereof and at all times hereafter while this
Mortgage is outstanding, the Mortgagor (1) is and shall be the owner of
title to the Property and to all other property included in the Collateral,
and (2) has and shall have marketable title in fee simple absolute to the
Property, subject in each case only to this Mortgage, the liens expressly
permitted pursuant to the terms of the Credit Agreement and the
encumbrances set forth in Schedule 2 hereto (collectively, the "Permitted
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Encumbrances");
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(b) the Mortgagor has good and lawful right, power and authority
to execute this Mortgage and to convey, transfer, assign, mortgage and
grant a security interest in the Collateral, all as provided herein; and
(c) this Mortgage has been duly executed, acknowledged and
delivered on behalf of the Mortgagor, all consents and other actions
required to be taken by the officers, directors, shareholders and partners,
as the case may be, of the Mortgagor have been duly and fully given and
performed and this Mortgage constitutes the legal, valid and binding
obligation of the Mortgagor, enforceable against the Mortgagor in
accordance with its terms, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the
rights of creditors generally and (b) general principles of equity.
SECTION 1.3. Title Insurance.
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SECTION 1.3.1 Title Insurance Policy. Concurrently with the execution and
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delivery of this Mortgage, the Mortgagor, at its expense, has obtained and
delivered to the Mortgagee a loan policy or policies of title insurance in an
amount, and in form and substance, satisfactory to the Mortgagee naming the
Mortgagee as the insured, insuring the title to and the first mortgage lien of
this Mortgage on the Property, with endorsements requested by the Mortgagee.
The Mortgagor has duly paid in full all premiums and other charges due in
connection with the issuance of such policy or policies of title insurance.
SECTION 1.3.2 Title Insurance Proceeds. All proceeds received by and
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payable to the Mortgagee for any loss under the loan policy or policies of title
insurance delivered to the Mortgagee pursuant to Section 1.3.1, or under any
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policy or policies of title insurance delivered to the Mortgagee in substitution
therefor or replacement thereof, shall be the property of the Mortgagee and
shall be applied by the Mortgagee in accordance with the provisions of Section
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2.3.
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SECTION 1.4. Recordation. The Mortgagor, at its expense, will at all
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times cause this Mortgage and any instruments amendatory hereof or supplemental
hereto and any instruments of assignment hereof or thereof (and any appropriate
financing statements or other instruments and continuations thereof), and each
other instrument delivered in connection with the Credit Agreement or any other
Loan Document and intended thereunder to be recorded, registered and filed, to
be kept recorded, registered and filed, in such manner and in such places, and
will pay all such recording, registration, filing fees, taxes and other charges,
and will comply with all such statutes and regulations as may be required by law
in order to establish, preserve, perfect and protect the lien and security
interest of this Mortgage as a valid, direct first mortgage lien and first
priority perfected security interest in the Collateral, subject only to the
Permitted Encumbrances. The Mortgagor will pay or cause to be paid, and will
indemnify the Mortgagee in respect of, all taxes (including interest and
penalties) at any time payable in connection with the filing and recording of
this Mortgage and any and all supplements and amendments hereto.
SECTION 1.5. Payment of Impositions, etc. Subject to Section 1.8
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(relating to permitted contests), the Mortgagor will pay or cause to be paid
before the same would become delinquent and before any fine, penalty, interest
or cost may be added for non-payment, all taxes, assessments, water and sewer
rates, charges, license fees, inspection fees and other governmental levies or
payments, of every kind and nature whatsoever, general and special, ordinary and
extraordinary, unforeseen as well as foreseen, which at any time may be
assessed, levied, confirmed, imposed or which may become a lien upon the
Collateral, or any portion thereof, or which are payable with respect thereto,
or upon the rents, issues, income or profits thereof, or on the occupancy,
operation, use, possession or activities thereof, whether any or all of the same
be levied directly or indirectly or as excise taxes or as income taxes, and all
taxes, assessments or charges which may be levied on the Secured Obligations, or
the interest thereon (collectively, the "Impositions"). The Mortgagor will
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deliver to the Mortgagee, upon request, copies of official receipts or other
satisfactory proof evidencing such payments.
SECTION 1.6. Insurance and Legal Requirements. Subject to Section 1.8
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(relating to permitted contests), the Mortgagor, at its expense, will comply, or
cause compliance with
(a) all provisions of any insurance policy covering or
applicable to the Collateral or any part thereof, all requirements of the
issuer of any such policy, and all orders, rules, regulations and other
requirements of the National Board of Fire Underwriters (or any other body
exercising similar functions) applicable to or affecting the Collateral or
any part thereof or any use or condition of the Collateral or any part
thereof (collectively, the "Insurance Requirements"); and
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(b) all laws, including Environmental Laws, statutes, codes,
acts, ordinances, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, directions and requirements
of all governments, departments, commissions, boards, courts, authorities,
agencies, officials and officers, foreseen or unforeseen, ordinary or
extraordinary, which now or at any time hereafter may be applicable to the
Collateral or any part thereof, or any of the adjoining sidewalks, curbs,
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vaults and vault space, if any, streets or ways, or any use or condition of
the Collateral or any part thereof or any other property of the Mortgagor
(collectively, the "Legal Requirements");
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whether or not compliance therewith shall require structural changes in or
interference with the use and enjoyment of the Collateral or any part thereof.
SECTION 1.7. Security Interests, etc. The Mortgagor will not directly or
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indirectly create or permit or suffer to be created or to remain, and will
promptly discharge or cause to be discharged, any deed of trust, mortgage,
encumbrance or charge on, pledge of, security interest in or conditional sale or
other title retention agreement with respect to or any other lien on or in the
Collateral or any part thereof or the interest of the Mortgagor or the Mortgagee
therein, or any Proceeds thereof or Rents or other sums arising therefrom, other
than (a) Permitted Encumbrances, and (b) liens of mechanics, materialmen,
suppliers or vendors or rights thereto incurred in the ordinary course of the
business of the Mortgagor for sums not yet due or any such liens or rights
thereto which are at the time being contested as permitted by Section 1.8. The
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Mortgagor will not postpone the payment of any sums for which liens of
mechanics, materialmen, suppliers or vendors or rights thereto have been
incurred (unless such liens or rights thereto are at the time being contested as
permitted by Section 1.8), or enter into any contract under which payment of
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such sums is postponable (unless such contract expressly provides for the legal,
binding and effective waiver of any such liens or rights thereto), in either
case, for more than 60 days after the completion of the action giving rise to
such liens or rights thereto.
SECTION 1.8. Permitted Contests. After prior written notice to the
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Mortgagee, the Mortgagor at its expense may contest, or cause to be contested,
by appropriate legal proceedings conducted in good faith and with due diligence,
the amount or validity or application, in whole or in part, of any Imposition,
Legal Requirement or Insurance Requirement or lien of a mechanic, materialman,
supplier or vendor, provided that, (a) in the case of an unpaid Imposition,
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lien, encumbrance or charge, such proceedings shall suspend the collection
thereof from the Mortgagor, the Mortgagee, and the Collateral (including any
rent or other income therefrom) and shall not interfere with the payment of any
such rent or income, (b) neither the Collateral nor any rent or other income
therefrom nor any part thereof or interest therein would be in any danger of
being sold, forfeited, lost, impaired or interfered with, (c) in the case of a
Legal Requirement, neither the Mortgagor nor the Mortgagee would be in danger of
any civil or criminal liability for failure to comply therewith, (d) the
Mortgagor shall have furnished such security, if any, as may be required in the
proceedings or as may be reasonably requested by the Mortgagee, (e) the non-
payment of the whole or any part of any Imposition will not result in the
delivery of a tax deed to the Collateral or any part thereof because of such
non-payment, (f) the payment of any sums required to be paid with respect to any
of the Term Notes or under this Mortgage (other than any unpaid Imposition,
lien, encumbrance or charge at the time being contested in accordance with this
Section 1.8) shall not be interfered with or otherwise affected, (g) in the case
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of any Insurance Requirement, the failure of the Mortgagor to comply therewith
shall not affect the validity of any insurance required to be maintained by the
Mortgagor under
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Section 2.1, and (h) that adequate reserves, determined in accordance with GAAP,
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shall have been set aside on the Mortgagor's books.
SECTION 1.9. Leases. The Mortgagor represents and warrants to the
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Mortgagee that, as of the date hereof, other than as disclosed in writing to the
Mortgagee, there are no written or oral leases or other agreements of any kind
or nature relating to the occupancy of any portion of the Property by any Person
other than the Mortgagor. The Mortgagor will not enter into any such written or
oral lease or other agreement with respect to any portion of the Property
without first obtaining the written consent of the Mortgagee which shall not be
unreasonably withheld, conditioned or delayed.
SECTION 1.10 Compliance with Instruments. The Mortgagor at its expense
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will promptly comply with all rights of way or use, privileges, franchises,
servitudes, licenses, easements, tenements, hereditaments and appurtenances
forming a part of the Property and all instruments creating or evidencing the
same, in each case, to the extent compliance therewith is required of the
Mortgagor under the terms thereof. The Mortgagor will not take any action which
may result in a forfeiture or termination of the rights afforded to the
Mortgagor under any such instruments and will not, without the prior written
consent of the Mortgagee, amend any of such instruments.
SECTION 1.11 Maintenance and Repair, etc. Subject to the provisions of
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Section 1.12, the Mortgagor will keep or cause to be kept all presently and
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subsequently erected or acquired Improvements and the sidewalks, curbs, vaults
and vault space, if any, located on or adjoining the same, and the streets and
the ways adjoining the same, in the same order and repair that exists on the
date of recordation hereof, reasonable wear and tear excepted and in such a
fashion that neither the value nor utility of the Collateral will be diminished,
and, at its sole cost and expense but subject to Article II below, will promptly
make or cause to be made all necessary and appropriate repairs, replacements and
renewals thereof, whether interior or exterior, structural or nonstructural,
ordinary or extraordinary, foreseen or unforeseen, so that its business carried
on in connection therewith may be properly conducted at all times. In the event
of damage or destruction to, or taking of all or part of the Property by eminent
domain, the Mortgagor shall only be obligated to effect repair, restoration and
replacement to the extent insurance or condemnation proceeds are available and
paid to the Mortgagor, or to the extent required by the Credit Agreement. All
repairs, replacements and renewals shall be at least equal in quality, use and
value to the original Improvements. The Mortgagor at its expense will do or
cause to be done all shoring of foundations and walls of any building or other
Improvements on the Property and (to the extent permitted by law) of the ground
adjacent thereto, and every other act necessary or appropriate for the
preservation and safety of the Property by reason of or in connection with any
excavation or other building operation upon the Property and upon any adjoining
property, whether or not the Mortgagor shall, by any Legal Requirement, be
required to take such action or be liable for failure to do so.
SECTION 1.12 Alterations, Additions, etc. So long as no Event of Default
----------------------------
shall have occurred and be continuing, the Mortgagor shall have the right at any
time and from time to time
-8-
to make or cause to be made reasonable alterations of and additions to the
Property or any part thereof, provided that any alteration
-------- ----
or addition: (a) shall not change the general character or the use of the
Property or materially reduce the fair market value thereof below its value
immediately before such alteration or addition, or impair the usefulness of the
Property; (b) is effected with due diligence, in a good and workmanlike manner
and in compliance with all Legal Requirements and Insurance Requirements; (c) is
promptly and fully paid for, or caused to be paid for, by the Mortgagor; (d) is
made, in case the estimated cost of such alteration or addition exceeds U.S.
$500,000, (i) only after the Mortgagee shall have consented thereto and shall
have reviewed and approved in writing the plans and specifications therefor such
approval not to be unreasonably withheld or delayed, (ii) under the supervision
of a qualified architect or engineer or another professional approved by the
Mortgagee in each case, not to be unreasonably withheld, conditioned or delayed.
SECTION 1.13 Acquired Property Subject to Lien. All property at any time
---------------------------------
acquired by the Mortgagor and provided or required by this Mortgage to be or
become subject to the lien and security interest hereof, whether such property
is acquired by exchange, purchase, construction or otherwise, shall forthwith
become subject to the lien and security interest of this Mortgage without
further action on the part of the Mortgagor or the Mortgagee. The Mortgagor, at
its expense, will execute and deliver to the Mortgagee (and will record and file
as provided in Section 1.4) an instrument supplemental to this Mortgage
-----------
satisfactory in substance and form to the Mortgagee, whenever such an instrument
is necessary under applicable law to subject to the lien and security interest
of this Mortgage all right, title and interest of the Mortgagor in and to all
property provided or required by this Mortgage to be subject to the lien and
security interest hereof.
SECTION 1.14 Assignment of Rents, Proceeds, etc. The assignment, grant
----------------------------------
and conveyance of the Leases, Rents, Proceeds and other rents, income, proceeds
and benefits of the Collateral contained in the Granting Clause of this Mortgage
shall constitute an absolute, present and irrevocable assignment, grant and
conveyance, provided, however, that permission is hereby given to the Mortgagor,
-------- -------
so long as no Event of Default has occurred hereunder, to collect, receive and
apply such Rents, Proceeds and other rents, income, proceeds and benefits as
they become due and payable, but not in advance thereof, and in accordance with
all of the other terms, conditions and provisions hereof, of the Loan Documents,
and of the Leases, contracts, agreements and other instruments with respect to
which such payments are made or such other benefits are conferred. Upon the
occurrence and during the continuance of an Event of Default, such permission
shall terminate immediately and automatically, without notice to the Mortgagor
or any other Person except as required by law, and shall not be reinstated upon
a cure of such Event of Default without the express written consent of the
Mortgagee. Such assignment shall be fully effective without any further action
on the part of the Mortgagor or the Mortgagee and the Mortgagee shall be
entitled, at its option, upon the occurrence and during the continuance of an
Event of Default hereunder, to collect, receive and apply all Rents, Proceeds
and all other rents, income, proceeds and benefits from the Collateral,
including all right, title and interest of the Mortgagor in any escrowed sums or
deposits or any portion thereof or interest therein, whether or not the
Mortgagee takes possession of the Collateral or any part thereof. The
-9-
Mortgagor further grants to the Mortgagee the right, at the Mortgagee's option,
upon the occurrence and during the continuance of an Event of Default hereunder,
to:
(a) enter upon and take possession of the Property for the purpose of
collecting Rents, Proceeds and said rents, income, proceeds and other
benefits;
(b) dispossess by the customary summary proceedings any tenant,
purchaser or other Person defaulting in the payment of any amount when and
as due and payable, or in the performance of any other material obligation,
under any Lease, contract or other instrument to which said Rents, Proceeds
or other rents, income, proceeds or benefits relate;
(c) let or convey the Collateral or any portion thereof or any
interest therein; and
(d) apply Rents, Proceeds and such rents, income, proceeds and other
benefits, after the payment of all necessary fees, charges and expenses, on
account of the Secured Obligations in accordance with Section 3.11.
------------
SECTION 1.15 No Claims Against the Mortgagee. Nothing contained in this
-------------------------------
Mortgage shall constitute any consent or request by the Mortgagee, express or
implied, for the performance of any labor or the furnishing of any materials or
other property in respect of the Property or any part thereof, or be construed
to permit the making of any claim against the Mortgagee in respect of labor or
services or the furnishing of any materials or other property or any claim that
any lien based on the performance of such labor or the furnishing of any such
materials or other property is prior to the lien and security interest of this
Mortgage. ALL CONTRACTORS, SUBCONTRACTORS, VENDORS AND OTHER PERSONS DEALING
------------------------------------------------------------------
WITH THE PROPERTY, OR WITH ANY PERSONS INTERESTED THEREIN, ARE HEREBY REQUIRED
------------------------------------------------------------------------------
TO TAKE NOTICE OF THE PROVISIONS OF THIS SECTION.
------------------------------------------------
SECTION 1.16 Indemnification. The Mortgagor will protect, indemnify,
---------------
save harmless and defend the Mortgagee, the Lenders, and each of their
respective officers, directors, shareholders, employees, representatives and
agents (collectively, the "Indemnified Parties" and individually, an
-------------------
"Indemnified Party"), from and against any and all liabilities, obligations,
------------------
claims, actual damages (excluding consequential and punitive damages),
penalties, causes of action, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted
against any Indemnified Party by reason of (a) ownership of an interest in the
Property, (b) any accident, injury to or death of persons or loss of or damage
to or loss of the use of property occurring on or about the Property or any part
thereof or the adjoining sidewalks, curbs, vaults and vault spaces, if any,
streets, alleys or ways, (c) any use, non-use or condition of the Property or
any part thereof or the adjoining sidewalks, curbs, vaults and vault spaces, if
any, streets, alleys or ways, (d) any failure on the part of the Mortgagor to
perform or comply with any of the terms of this Mortgage, (e) performance of any
labor or services or the furnishing of any materials or other property in
respect of the Collateral or any part thereof made or suffered to be made by or
on behalf of the Mortgagor, (f) any
-10-
negligence or tortious act on the part of the Mortgagor or any of its agents,
contractors, lessees, licensees or invitees, (g) any work in connection with any
alterations, changes, new construction or demolition of or additions to the
Property, or (h) (i) any Contaminant on, in, under or affecting all or any
portion of the Property, the groundwater, or any surrounding areas, (ii) any
material misrepresentation, inaccuracy or breach of any warranty, covenant or
agreement contained or referred to in Sections 1.20 and 1.21, (iii) any
------------- ----
violation or claim of violation by the Mortgagor of any Environmental, Health or
Safety Requirements of Law, or (iv) the imposition of any lien for damages
caused by or the recovery of any costs for the cleanup, release or threatened
release of any Contaminant. If any action or proceeding be commenced, to which
action or proceeding any Indemnified Party is made a party by reason of the
execution of this Mortgage or any other Loan Document, and if an Indemnified
Party is entitled to indemnity by Mortgagor under this instrument, then all sums
reasonably paid by the Indemnified Parties, for the expense of defending such
action or proceeding, if Mortgagor fails to provide the defense required herein,
shall be paid by the Mortgagor to such Indemnified Parties, as the case may be,
as hereinafter provided. The Mortgagor will pay and save the Indemnified Parties
harmless against any and all liability with respect to any intangible personal
property tax or similar imposition of the State or any subdivision or authority
thereof now or hereafter in effect, to the extent that the same may be payable
by the Indemnified Parties solely in respect of this Mortgage, any Loan Document
or any Secured Obligation. All amounts payable to the Indemnified Parties under
this Section 1.16 shall be deemed indebtedness secured by this Mortgage and any
------------
such amounts which are not paid within ten (10) days after written demand
therefor by any Indemnified Party shall bear interest at the rate provided for
in Section 3.2.2 of the Credit Agreement from the date of such demand. In case
-------------
any action, suit or proceeding is brought against any Indemnified Party by
reason of any such occurrence, the Mortgagor, upon request of such Indemnified
Party, will, at the Mortgagor's expense, resist and defend such action, suit or
proceeding or cause the same to be resisted or defended by counsel designated by
the Mortgagor and approved by such Indemnified Party. The obligations of the
Mortgagor under this Section 1.16 shall survive any discharge or reconveyance of
------- ----
this Mortgage and payment in full of the Secured Obligations.
SECTION 1.17 No Credit for Payment of Taxes. The Mortgagor shall not be
------------------------------
entitled to any credit against the Secured Obligations by reason of the payment
of any tax on the Property or any part thereof or by reason of the payment of
any other Imposition, and shall not apply for or claim any deduction from the
taxable value of the Property or any part thereof by reason of this Mortgage.
SECTION 1.18 Application of Proceeds of Term Loans. The Mortgagor (a)
-------------------------------------
will not use or permit to be used any proceeds of the Term Loans, directly or
indirectly, for the purpose, whether immediate, incidental or ultimate, of
"purchasing" or "carrying" any "margin stock" within the meaning of Regulation U
of the Federal Reserve Board, as amended from time to time, and (b) has or will
apply all of the proceeds of the Term Loans that are paid to it by the Mortgagee
to the purposes permitted by the Credit Agreement.
SECTION 1.19 No Transfer of the Property. Except as permitted by Section
--------------------------- -------
7.2.6(a) of the Credit Agreement, the Mortgagor shall not, without the prior
--------
written consent of the
-11-
Mortgagee, which consent may be granted or withheld in the sole and absolute
discretion of the Mortgagee (i) sell, convey, assign or otherwise transfer the
Property or any portion of the Mortgagor's interest therein or (ii) further
encumber the Property or permit the Property to become encumbered by any lien,
claim, security interest or other indebtedness of any kind or nature other than
the Permitted Encumbrances.
SECTION 1.20 Security Agreement. With respect to the items of personal
------------------
property and fixtures referred to and described in the Granting Clause of this
Mortgage and included as part of the Collateral, this Mortgage is hereby made
and declared to be a security agreement encumbering each and every item of
personal property and fixtures now or hereafter owned by Mortgagor and included
herein as a part of the Collateral, in compliance with the provisions of the
Uniform Commercial Code as enacted in the State. In this respect, Mortgagor, as
"Debtor", expressly grants to Mortgagee, as "Secured Party", a security interest
in and to all of the property now or hereafter owned by Mortgagor which
constitutes the personal property and fixtures hereinabove referred to and
described in this Mortgage, including all extensions, accessions, additions,
improvements, betterments, renewals, replacements and substitutions thereof or
thereto, and all proceeds from the sale or other disposition thereof. Mortgagor
agrees that Mortgagee may file this Mortgage, or a reproduction thereof, in the
real estate records or other appropriate index, as, and this Mortgage shall be
deemed to be, a financing statement filed as a fixture filing in accordance with
_____________. Any reproduction of this Mortgage or of any other security
agreement or financing statement shall be sufficient as a financing statement.
In addition, Mortgagor agrees to execute and deliver to Mortgagee, upon
Mortgagee's request, any other security agreement and financing statements, as
well as extensions, renewals, and amendments thereof, and reproductions of this
Mortgage, in such form as Mortgagee may require to perfect a security interest
with respect to said items. Mortgagor shall pay all costs of filing such
financing statements and any extensions, renewals, amendments and releases
thereof, and shall pay all reasonable costs and expenses of any record searches
for financing statements Mortgagee may reasonably require. Without the prior
written consent of Mortgagee, Mortgagor shall not create or suffer to be created
pursuant to the Uniform Commercial Code any other security interest in the
above-described personal property and fixtures, including any replacements and
additions thereto. Upon the occurrence of an Event of Default under this
Mortgage, or any other violation of the covenants, terms and conditions of the
security agreement contained herein, the Mortgagee shall have and shall be
entitled to exercise any and all of the rights and remedies (i) as prescribed in
this Mortgage, or (ii) as prescribed by general law, or (iii) as prescribed by
the specific statutory provisions now or hereafter enacted and specified in said
Uniform Commercial Code, all at Mortgagee's sole election. Mortgagor and
Mortgagee agree that the filing of any financing statements in the records
normally having to do with personal property shall not in any way affect the
agreement of Mortgagor and Mortgagee that everything located in, on or about, or
used or intended to be used with or in connection with the use, operation or
enjoyment of, the Collateral, which is described or reflected as a fixture in
this Mortgage, is, and at all times and for all purposes and in all proceedings,
both legal and equitable, shall be, regarded as part of the Real Estate conveyed
hereby. Mortgagor warrants that Mortgagor's name, identity and address are as
set forth herein. The mailing address of the Mortgagee from which information
may be obtained concerning the security interest created
-12-
herein is also set forth herein. This information hereof is provided in order
that this Mortgage shall comply with the requirements of the Uniform Commercial
Code as enacted in ____________ for instruments to be filed as financing
statements. In accordance with ______________, this Mortgage shall remain
effective as a fixture filing until this Mortgage is released or satisfied of
record or its effectiveness otherwise terminates as to the Collateral.
SECTION 1.21 Representations and Warranties. In order to induce the
------------------------------
Mortgagee to enter into the Credit Agreement and the other Loan Documents, the
Mortgagor agrees that all of the representations and warranties set forth in the
Credit Agreement are incorporated into this Mortgage by reference as if fully
set forth herein.
SECTION 1.22 Mortgagor's Covenants. In order to induce the Mortgagee to
---------------------
enter into the Credit Agreement and the other Loan Documents, the Mortgagor
agrees that all of the covenants set forth in the Credit Agreement are
incorporated into this Mortgage by reference as if fully set forth herein.
ARTICLE II
INSURANCE; DAMAGE, DESTRUCTION OR TAKING, ETC.
----------------------------------------------
SECTION 2.1. Insurance. The Mortgagor will, at its expense, maintain or
---------
cause to be maintained insurance in accordance with the terms of the Credit
Agreement.
SECTION 2.2. Damage, Destruction or Taking; Mortgagor to Give Notice;
--------------------------------------------------------
Assignment of Awards. In case of
--------------------
(a) any damage to or destruction of the Collateral or any part
thereof, or
(b) any taking, whether for permanent or temporary use, of all or
any part of the Collateral or any interest therein or right accruing
thereto, as the result of or in anticipation of the exercise of the right
of condemnation or eminent domain, or a change of grade affecting the
Collateral or any portion thereof (a "Taking"), or the commencement of any
------
proceedings or negotiations which may result in a Taking,
the Mortgagor will promptly give written notice thereof to the Mortgagee,
generally describing the nature and extent of such damage or destruction and the
Mortgagor's best estimate of the cost of restoring the Collateral, or the nature
of such proceedings or negotiations and the nature and extent of the Taking
which might result therefrom, as the case may be. The Mortgagee shall be
entitled to all insurance proceeds payable on account of such damage or
destruction and to all awards or payments allocable to the Collateral on account
of such Taking, and the Mortgagor hereby irrevocably assigns, transfers and sets
over to the Mortgagee all rights of the Mortgagor to any such proceeds, awards
or payments and irrevocably authorizes and empowers the Mortgagee, at its
option, in the name of the Mortgagor or otherwise, to file and prosecute what
would otherwise be the Mortgagor's claim for any such proceeds, award or payment
and to
-13-
collect, receipt for and retain the same for disposition in accordance with
Section 2.3. The Mortgagor will pay all reasonable costs and expenses
-----------
incurred by the Mortgagee in connection with any such damage, destruction or
Taking and seeking and obtaining any insurance proceeds, awards or payments in
respect thereof.
SECTION 2.3. Application of Proceeds and Awards. The Mortgagee may, at
-----------------------------------
its option, apply all amounts recovered under any insurance policy required to
be maintained by the Mortgagor hereunder and all awards received by it on
account of any Taking in any one or more of the following ways:
(a) to the payment of the reasonable costs and expenses incurred
by the Mortgagee in obtaining any such insurance proceeds or awards,
including the fees and expenses of attorneys and insurance and other
experts and consultants, the costs of litigation, arbitration, mediation,
investigations and other judicial, administrative or other proceedings and
all other out-of-pocket expenses;
(b) to the payment of the principal of the Credit Extensions and
any interest (including post-petition interest payable in any proceedings
for bankruptcy under applicable law ("Post-Petition Interest") to the
----------------------
extent such interest is a Secured Obligation) accrued and unpaid thereon,
without regard to whether any portion or all of such amounts shall be
matured or unmatured, together with interest at the rate provided for in
the Credit Agreement on any overdue principal and (to the extent permitted
by applicable law) interest; and, in case such amount shall be insufficient
to pay in full all such amounts, then such amount shall be applied, first,
-----
to the payment of all amounts of interest (including Post-Petition Interest
to the extent such interest is a Secured Obligation) accrued on the Credit
Extensions and unpaid, second, to the payment of all amounts of principal
------
at the time outstanding;
(c) to the payment of, or the application to, any Secured
Obligation (other than as provided in clause (b) above);
----------
(d) to fulfill any of the other covenants contained herein, in
the Credit Agreement, or in any other Loan Document, as the Mortgagee may
determine in its sole discretion;
(e) to the Mortgagor for application to the cost of restoring
the Collateral and the replacement of Goods destroyed, damaged or taken; or
(f) to the Mortgagor.
Notwithstanding the foregoing provisions of this Section 2.3 to the
-----------
contrary (but subject to the provisions of Section 2.4), and if each of the
-----------
following conditions is satisfied, the Mortgagee, upon request of the Mortgagor,
shall apply insurance proceeds or condemnation
-14-
awards received by it to the restoration or replacement of the Collateral, to
the extent necessary for the restoration or replacement thereof:
(i) there shall then exist no uncured Default;
(ii) the Mortgagor shall furnish to the Mortgagee a certificate
of an architect or engineer reasonably acceptable to the Mortgagee
stating (x) that the Collateral is capable of being restored, prior to
the maturity of the Credit Agreement, to substantially the same
condition as existed prior to the casualty or Taking, (y) the
aggregate estimated direct and indirect costs of such restoration and
(z) as to any Taking, that the property taken in such Taking, or sold
under threat thereof, is not necessary to the Mortgagor's customary
use or occupancy of the Property; and
(iii) in the event that the estimated cost of restoration set
forth in the certificate of such architect or engineer (and such
revisions to such estimate as are from time to time made) exceeds the
net insurance proceeds or condemnation awards actually received from
time to time, the Mortgagor shall deposit the amount of such excess
with the Mortgagee.
In the event that such insurance proceeds or condemnation awards are to be
utilized in the restoration of the Collateral, the Mortgagee shall disburse such
Proceeds and the additional amounts deposited by the Mortgagor for such
restoration after receipt of a written request for disbursement, on not fewer
than five (5) nor more than twelve (12) Business Days notice and, to the extent
applicable, in accordance with the Mortgagee's customary construction loan
procedures and conditions. In the event that such insurance or condemnation
awards are to be utilized to replace the Collateral so destroyed or taken, the
Mortgagee shall disburse such Proceeds after receipt of a written request for
disbursement, on not fewer than five (5) Business Days nor more than twelve (12)
Business Days notice simultaneously with the acquisition of such replacement
property by the Mortgagor. In the event that, after the restoration or
replacement of the Collateral, any insurance or condemnation awards shall
remain, such amount shall be paid to the Mortgagor. Insurance proceeds and
condemnation awards shall be invested in the manner reasonably requested by the
Mortgagor and approved by the Mortgagee, and all interest earned thereon shall
be applied as provided in this Section 2.3. If, prior to the receipt by the
-----------
Mortgagee of such insurance proceeds or condemnation awards, the Collateral
shall have been sold on foreclosure, the Mortgagee shall have the right to
receive said insurance proceeds or condemnation awards to the extent of any
deficiency found to be due upon such sale, with legal interest thereon, whether
or not a deficiency judgment shall have been sought or recovered or denied, and
the reasonable attorneys' fees, costs and disbursements incurred by the
Mortgagee in connection with the collection of such award or payment.
SECTION 2.4. Total Taking and Total Destruction. In the event of a Total
----------------------------------
Destruction or a Total Taking, the Mortgagee shall apply all amounts recovered
under any insurance policy
-15-
referred to in Section 2.1.1 and all awards received by it on account of any
-------------
such Taking as follows:
(a) first, to the payment of the reasonable costs and expenses
incurred by the Mortgagee in obtaining any such insurance proceeds or
awards, including the fees and expenses of attorneys and insurance and
other experts and consultants, the costs of litigation, arbitration,
mediation, investigations and other judicial, administrative or other
proceedings and all other out-of-pocket expenses;
(b) second, to the payment of the principal of the Credit Extensions
and any interest (including Post-Petition Interest to the extent such
interest is a Secured Obligation) accrued and unpaid thereon, without
regard to whether any portion or all of such amounts shall be matured or
unmatured, together with interest at the rate provided for in the Credit
Agreement on any overdue principal and (to the extent permitted by
applicable law) interest; and, in case such amount shall be insufficient to
pay in full all such amounts, then such amount shall be applied, first, to
-----
the payment of all amounts of interest (including Post-Petition Interest to
the extent such interest is a Secured Obligation) accrued on the Credit
Extensions and unpaid, and second, to the payment of all amounts of
------
principal at the time outstanding;
(c) third, to the payment of, or the application to, any Secured
Obligation (other than as provided in clause (b) above);
----------
(d) fourth, to fulfill any of the other covenants contained herein as
the Mortgagee may determine; and
(e) fifth, the balance, if any, to the Mortgagor.
ARTICLE III
EVENTS OF DEFAULT; REMEDIES, ETC.
---------------------------------
SECTION 3.1. Events of Default; Acceleration. If an "Event of Default"
-------------------------------
(pursuant to and as defined in the Credit Agreement) shall have occurred, then
and in any such event the Mortgagee may at any time thereafter (unless all
Events of Default shall theretofore have been remedied and all costs and
expenses, including, without limitation, attorneys' fees and expenses incurred
by or on behalf of the Mortgagee, shall have been paid in full by the Mortgagor)
declare, by written notice to the Mortgagor, the Term Loans and all other
Secured Obligations to be due and payable immediately or on a date specified in
such notice (provided that, upon the occurrence of any Event of Default
--------
described in Section 8.1.9 of the Credit Agreement, the Term Loans and all other
Secured Obligations shall automatically become due and payable), and on such
date the same shall be and become due and payable, together with interest
accrued thereon, without presentment, demand, protest or notice, all of which
the Mortgagor hereby waives. The Mortgagor will pay on demand all costs and
expenses, including, without limitation, attorneys'
-16-
fees and expenses, incurred by or on behalf of the Mortgagee in enforcing this
Mortgage, or any other Loan Document, or occasioned by any default hereunder or
thereunder.
SECTION 3.2. Legal Proceedings; Foreclosure. If an Event of Default
------------------------------
shall have occurred, the Mortgagee at any time may, at its election, proceed at
law or in equity or otherwise to enforce the payment and performance of the
Secured Obligations in accordance with the terms hereof and thereof and to
foreclose the lien of this Mortgage as against all or any part of the Collateral
and to have the same sold under the judgment or decree of a court of competent
jurisdiction. The Mortgagee shall be entitled to recover in such proceedings
all costs incident thereto, including attorneys' fees and expenses in such
amounts as may be fixed by the court.
SECTION 3.3. Power of Sale. If an Event of Default shall have occurred,
-------------
the Mortgagee may grant, bargain, sell, assign, transfer, convey and deliver the
whole or, from time to time, any part of the Collateral, or any interest in any
part thereof, at any private sale or at public auction, with or without demand,
advertisement or notice, for cash, on credit or for other property, for
immediate or future delivery, and for such price or prices and on such terms as
the Mortgagee in its uncontrolled discretion may determine, or as may be
required by law, and upon such sale the Mortgagee may execute and deliver to the
purchaser(s) instruments of conveyance pursuant to the terms hereof and to
applicable laws. Without limiting the authority granted in this Section 3.3,
-----------
the Mortgagee shall, without demand on the Mortgagor, after the lapse of such
time as may then be required by law, and notice of default and notice of sale
having been given as then required by law, sell the Collateral on the date and
at the time and place designated in the notice of sale, either as a whole or in
separate parcels and in such order as the Mortgagee may determine, but subject
to any statutory right of the Mortgagor to direct the order in which such
property, if consisting of several known lots, parcels or interests, shall be
sold, at public auction to the highest bidder, the purchase price payable in
lawful money of the United States at the time of sale. The Person conducting
the sale may, for any cause deemed expedient, postpone the sale from time to
time until it shall be completed and, in every such case, notice of postponement
shall be given by public declaration thereof by such Person at the time and
place last appointed for the sale; provided that, if the sale is postponed for
-------- ----
longer than one (1) day beyond the day designated in the notice of sale, notice
of sale and notice of the time, date and place of sale shall be given in the
same manner as the original notice of sale. The Mortgagee shall execute and
deliver to the purchaser at any such sale a mortgagee's deed conveying the
property so sold, but without any covenant or warranty, express or implied. The
recitals in such mortgagee's deed of any matters or facts shall be conclusive
proof of the truthfulness thereof. Any Person, including the Mortgagee, may bid
at the sale. The Mortgagee shall apply the proceeds of the sale, to the extent
consistent with this Mortgage, to the payment of (a) the costs and expenses of
exercising the power of sale and of the sale, including the payment of
attorneys' fees and costs, (b) the cost of any evidence of title procured in
connection with such sale, (c) all sums expended under the terms hereof in
conjunction with any default provision hereof, not then repaid, with accrued
interest at the rate provided for in the Credit Agreement from the date of
incurrence, (d) outstanding principal and interest under the Credit Agreement,
(e) all Secured Obligations (other than as provided in clause (d) above). The
----------
Mortgagee shall give the remainder, if any, of the proceeds of the sale to the
Person or Persons legally entitled thereto, or the Mortgagee, in the
-17-
Mortgagee's discretion, may deposit the balance of such proceeds with any court
or public official authorized to receive such proceeds.
SECTION 3.4. Uniform Commercial Code Remedies. If an Event of Default
--------------------------------
shall have occurred, the Mortgagee may exercise from time to time and at any
time any rights and remedies available to it under applicable law upon default
in the payment of indebtedness, including, without limitation, any right or
remedy available to it as a secured party under the Uniform Commercial Code of
the State. The Mortgagor shall, promptly upon request by the Mortgagee,
assemble the Collateral, or any portion thereof generally described in such
request, and make it available to the Mortgagee at such place or places
designated by the Mortgagee and reasonably convenient to the Mortgagee or the
Mortgagor. If the Mortgagee elects to proceed under the Uniform Commercial Code
of the State to dispose of portions of the Collateral, the Mortgagee, at its
option, may give the Mortgagor notice of the time and place of any public sale
of any such property, or of the date after which any private sale or other
disposition thereof is to be made, by sending notice by registered or certified
first class mail, postage prepaid, to the Mortgagor at least ten (10) days
before the time of the sale or other disposition. If any notice of any proposed
sale, assignment or transfer by the Mortgagee of any portion of the Collateral
or any interest therein is required by law, the Mortgagor conclusively agrees
that ten (10) days notice to the Mortgagor of the date, time and place (and, in
the case of a private sale, the terms) thereof is reasonable.
SECTION 3.5. Mortgagee Authorized to Execute Deeds, etc. The Mortgagor
------------------------------------------
irrevocably appoints the Mortgagee (which appointment is coupled with an
interest) the true and lawful attorney of the Mortgagor, in its name and stead
and on its behalf, for the purpose of effectuating any sale, assignment,
transfer or delivery for the enforcement hereof, whether pursuant to power of
sale, foreclosure or otherwise, to execute and deliver all such deeds, bills of
sale, assignments, releases and other instruments as may be designated in any
such request.
SECTION 3.6. Purchase of Collateral by Mortgagee. The Mortgagee may be a
-----------------------------------
purchaser of the Collateral or of any part thereof or of any interest therein at
any sale thereof, whether pursuant to power of sale, foreclosure or otherwise,
and the Mortgagee may apply upon the purchase price thereof the indebtedness
secured hereby owing to the Mortgagee. Such purchaser shall, upon any such
purchase, acquire good title to the properties so purchased, free of the
security interest and lien of this Mortgage and free of all rights of redemption
in the Mortgagor.
SECTION 3.7. Receipt a Sufficient Discharge to Purchaser. Upon any sale
-------------------------------------------
of the Collateral or any part thereof or any interest therein, whether pursuant
to power of sale, foreclosure or otherwise, the receipt of the Mortgagee or the
officer making the sale under judicial proceedings shall be a sufficient
discharge to the purchaser for the purchase money, and such purchaser shall not
be obliged to see to the application thereof.
SECTION 3.8. Waiver of Appraisement, Valuation, etc. The Mortgagor
--------------------------------------
hereby waives, to the fullest extent it may lawfully do so, the benefit of all
appraisement, valuation, stay,
-18-
extension and redemption laws now or hereafter in force and all rights of
marshaling in the event of any sale of the Collateral or any part thereof or any
interest therein.
SECTION 3.9. Sale a Bar Against Mortgagor. Any sale of the Collateral or
----------------------------
any part thereof or any interest therein under or by virtue of this Mortgage,
whether pursuant to power of sale, foreclosure or otherwise, shall forever be a
bar against the Mortgagor.
SECTION 3.10. Secured Obligations to Become Due on Sale. Upon any sale of
-----------------------------------------
the Collateral or any portion thereof or interest therein by virtue of the
exercise of any remedy by the Mortgagee under or by virtue of this Mortgage,
whether pursuant to power of sale, foreclosure or otherwise in accordance with
this Mortgage or by virtue of any other remedy available at law or in equity or
by statute or otherwise, at the option of the Mortgagee, any sums or monies due
and payable pursuant to the Credit Agreement, the Loan Documents and in
connection with the Term Loans and/or the Secured Obligations shall, if not
previously declared due and payable, immediately become due and payable,
together with interest accrued thereon, and all other indebtedness which this
Mortgage by its terms secures.
SECTION 3.11. Application of Proceeds of Sale and Other Moneys. The
------------------------------------------------
proceeds of any sale of the Collateral or any part thereof or any interest
therein under or by virtue of this Mortgage, whether pursuant to power of sale,
foreclosure or otherwise, and all other moneys at any time held by the Mortgagee
as part of the Collateral, shall be applied in such order of priority as the
Mortgagee shall determine in its sole and absolute discretion including, without
limitation, as follows:
(a) first, to the payment of the reasonable costs and expenses of
such sale (including, without limitation, the cost of evidence of title and
the costs and expenses, if any, of taking possession of, retaining custody
over, repairing, managing, operating, maintaining and preserving the
Collateral or any part thereof prior to such sale), all reasonable costs
and expenses incurred by the Mortgagee or any other Person in obtaining or
collecting any insurance proceeds, condemnation awards or other amounts
received by the Mortgagee, all reasonable costs and expenses of any
receiver of the Collateral or any part thereof, and any Impositions or
other charges or expenses prior to the security interest or lien of this
Mortgage, which the Mortgagee may consider it necessary or desirable to
pay;
(b) second, to the payment of any Secured Obligation (other than
those set forth in Section 3.11(c) below);
---------------
(c) third, to the payment of all amounts of principal of and interest
(including Post-Petition Interest to the extent such interest is a Secured
Obligation) at the time due and payable under the Credit Agreement at the
time outstanding (whether due by reason of maturity or by reason of any
prepayment requirement or by declaration or acceleration or otherwise),
including interest at the rate provided for in the Credit Agreement on any
overdue principal and (to the extent permitted under applicable law) on any
overdue
-19-
interest; and, in case such moneys shall be insufficient to pay in full
such principal and interest, then, first, to the payment of all amounts of
-----
interest (including Post-Petition Interest to the extent such interest is a
Secured Obligation) at the time due and payable and, second, to the payment
------
of all amounts of principal at the time due and payable under the Credit
Agreement; and
(d) fourth, the balance, if any, held by the Mortgagee after payment
in full of all amounts referred to in subdivisions Sections 3.11(a), (b)
---------------- ---
and (c) above, shall, unless a court of competent jurisdiction may
---
otherwise direct by final order not subject to appeal, be paid to or upon
the direction of the Mortgagor.
SECTION 3.12. Appointment of Receiver. If an Event of Default shall have
-----------------------
occurred, the Mortgagee shall, as a matter of right, without notice, and without
regard to the adequacy of any security for the indebtedness secured hereby or
the solvency of the Mortgagor, be entitled to the appointment of a receiver for
all or any part of the Collateral, whether such receivership be incidental to a
proposed sale of the Collateral or otherwise, and the Mortgagor hereby consents
to the appointment of such a receiver and will not oppose any such appointment.
SECTION 3.13. Possession, Management and Income. If an Event of Default
---------------------------------
shall have occurred, in addition to, and not in limitation of, the rights and
remedies provided in Section 1.14, the Mortgagee, upon five (5) days notice to
------------
the Mortgagor, may enter upon and take possession of the Collateral or any part
thereof by force, summary proceeding, ejectment or otherwise and may remove the
Mortgagor and all other Persons and any and all property therefrom and may hold,
operate, maintain, repair, preserve and manage the same and receive all
earnings, income, Rents, issues and Proceeds accruing with respect thereto or
any part thereof. The Mortgagee shall be under no liability for or by reason of
any such taking of possession, entry, removal or holding, operation or
management, except that any amounts so received by the Mortgagee shall be
applied to pay all costs and expenses of so entering upon, taking possession of,
holding, operating, maintaining, repairing, preserving and managing the
Collateral or any part thereof, and any Impositions or other charges prior to
the lien and security interest of this Mortgage which the Mortgagee may consider
it necessary or desirable to pay, and any balance of such amounts shall be
applied as provided in Section 3.11.
------------
SECTION 3.14. Right of Mortgagee to Perform Mortgagor's Covenants, etc.
--------------------------------------------------------
If the Mortgagor shall fail to make any payment or perform any act required to
be made or performed hereunder or under the Credit Agreement or any other Loan
Document, the Mortgagee, without notice to or demand upon the Mortgagor and
without waiving or releasing any obligation or Default, may (but shall be under
no obligation to) at any time thereafter make such payment or perform such act
for the account and at the expense of the Mortgagor, and may enter upon the
Collateral for such purpose and take all such action thereon as, in the
Mortgagee's opinion, may be necessary or appropriate therefor. No such entry
and no such action shall be deemed an eviction of any lessee of the Property or
any part thereof. All sums so paid by the Mortgagee and all costs and expenses
(including, without limitation, attorneys' fees and expenses) so incurred,
together with interest thereon at the rate provided for in Section 3.2.2 of the
-------------
Credit
-20-
Agreement from the date of payment or incurring, shall constitute additional
indebtedness under the Credit Agreement secured by this Mortgage and shall be
paid by the Mortgagor to the Mortgagee on demand.
SECTION 3.15. Subrogation. To the extent that the Mortgagee, on or after
-----------
the date hereof, pays any sum due under any provision of any Legal Requirement
or any instrument creating any lien prior or superior to the lien of this
Mortgage, or the Mortgagor or any other Person pays any such sum with the
proceeds of the loan evidenced by the Credit Agreement, the Mortgagee shall have
and be entitled to a lien on the Collateral equal in priority to the lien
discharged, and the Mortgagee shall be subrogated to, and receive and enjoy all
rights and liens possessed, held or enjoyed by, the holder of such lien, which
shall remain in existence and benefit the Mortgagee in securing the Secured
Obligations.
SECTION 3.16. Remedies, etc., Cumulative. Each right, power and remedy of
--------------------------
the Mortgagee provided for in this Mortgage, the Credit Agreement or any other
Loan Document, or now or hereafter existing at law or in equity or by statute or
otherwise shall be cumulative and concurrent and shall be in addition to every
other right, power or remedy provided for in this Mortgage, the Credit Agreement
or any other Loan Document, or now or hereafter existing at law or in equity or
by statute or otherwise, and the exercise or beginning of the exercise by the
Mortgagee of any one or more of the rights, powers or remedies provided for in
this Mortgage, the Credit Agreement, or any other Loan Document, or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Mortgagee of any or all such
other rights, powers or remedies.
SECTION 3.17. Provisions Subject to Applicable Law. All rights, powers
------------------------------------
and remedies provided in this Mortgage may be exercised only to the extent that
the exercise thereof does not violate any applicable provisions of law and are
intended to be limited to the extent necessary so that they will not render this
Mortgage invalid, unenforceable or not entitled to be recorded, registered or
filed under the provisions of any applicable law. If any term of this Mortgage
or any application thereof shall be invalid or unenforceable, the remainder of
this Mortgage and any other application of such term shall not be affected
thereby.
SECTION 3.18. No Waiver, etc. No failure by the Mortgagee to insist upon
--------------
the strict performance of any term hereof or of the Credit Agreement, or of any
other Loan Document, or to exercise any right, power or remedy consequent upon a
breach hereof or thereof, shall constitute a waiver of any such term or of any
such breach. No waiver of any breach shall affect or alter this Mortgage, which
shall continue in full force and effect with respect to any other then existing
or subsequent breach. By accepting payment or performance of any amount or
other Secured Obligations secured hereby before or after its due date, the
Mortgagee shall not be deemed to have waived its right either to require prompt
payment or performance when due of all other amounts and Secured Obligations
payable hereunder or to declare a default for failure to effect such prompt
payment.
-21-
SECTION 3.19. Compromise of Actions, etc. Any action, suit or proceeding
--------------------------
brought by the Mortgagee pursuant to any of the terms of this Mortgage, the
Credit Agreement, any other Loan Document, or otherwise, and any claim made by
the Mortgagee hereunder or thereunder, may be compromised, withdrawn or
otherwise dealt with by the Mortgagee without any notice to or approval of the
Mortgagor.
ARTICLE IV
DEFINITIONS
-----------
SECTION 4.1. Terms Defined in this Mortgage. When used herein the
------------------------------
following terms have the following meanings:
"Borrower" shall have the meaning set forth in the second recital.
-------- --------------
"Collateral" shall have the meaning set forth in the granting clause.
---------- ---------------
"Contracts" shall have the meaning set forth in clause (h) of the granting
--------- ---------- --------
clause.
------
"Credit Agreement" shall have the meaning set forth in the second recital.
---------------- --------------
"Credit Extensions" shall have the meaning set forth in the the second
----------------- ------
recital.
-------
"Default" means any Event of Default or any condition or event which, after
-------
notice or lapse of time, or both, would constitute an Event of Default.
"Environmental Laws" shall have the meaning set forth in the Credit
------------------
Agreement.
"Event of Default" shall have the meaning set forth in the Credit
----------------
Agreement.
"Goods" shall have the meaning set forth in clause (c) of the granting
----- ---------- --------
clause.
------
"herein", "hereof", "hereto", and "hereunder" and similar terms refer to
------ ------ ------ ---------
this Mortgage and not to any particular Section, paragraph or provision of this
Mortgage.
"Impositions" shall have the meaning set forth in Section 1.5.
----------- -----------
"Improvements" shall have the meaning set forth in clause (b) of the
------------ ----------
granting clause.
-------- ------
"Indemnified Parties" shall have the meaning set forth in Section 1.16.
------------------- ------------
"Insurance Requirements" shall have the meaning set forth in paragraph (a)
---------------------- -------------
of Section 1.6.
-----------
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"Land" shall have the meaning set forth in the first recital.
---- ----- -------
"Leases" shall have the meaning set forth in clause (e) of the granting
------ ---------- --------
clause.
------
"Legal Requirements" shall have the meaning set forth in paragraph (b) of
------------------ -------------
Section 1.6.
-----------
"Lenders" shall have the meaning set forth in the Credit Agreement.
-------
"Loan Documents" shall have the meaning set forth in the Credit Agreement.
--------------
"Mortgage" shall have the meaning set forth in the preamble.
-------- --------
"Mortgagee" shall have the meaning set forth in the preamble.
--------- --------
"Mortgagor" shall have the meaning set forth in the preamble.
--------- --------
"Obligations" shall have the meaning set forth in the Credit Agreement.
-----------
"Obligor" shall mean each Person having any liabilities, obligations,
-------
duties or responsibilities under the Credit Agreement or any Loan Document.
"Permits" shall have the meaning set forth in clause (g) of the granting
------- ---------- --------
clause.
------
"Permitted Encumbrances" shall have the meaning set forth in Section 1.2.
---------------------- -----------
"Person" means a corporation, an association, a partnership, an
------
organization, a business, an individual, a government or political subdivision
thereof or a governmental agency or officer.
"Plans" shall have the meaning set forth in clause (f) of the granting
----- ---------- --------
clause.
------
"Post-Petition Interest" shall have the meaning set forth in Section 2.3.
---------------------- -----------
"Proceeds" shall have the meaning set forth in clause (k) of the granting
-------- ---------- --------
clause.
------
"Property" shall have the meaning set forth in clause (b) of the granting
-------- ---------- --------
clause.
------
"Real Estate" shall have the meaning set forth in clause (a) of the
----------- ----------
granting clause.
-------- ------
"Rents" shall have the meaning set forth in clause (j) of the granting
----- ---------- --------
clause.
------
"Secured Obligations" means all Obligations now or hereafter existing under
-------------------
the Credit Agreement, and all obligations (monetary or otherwise) arising under
or in connection with the Term Notes, the Term Loans and each other Loan
Document, whether for principal, interest,
-23-
costs, fees, expenses or otherwise, and all other obligations of the Mortgagor
and each Obligor under any Loan Document arising or now or hereafter existing or
due or to become due.
"State" means the State of ___________.
-----
"Taking" shall have the meaning set forth in clause (b) of Section 2.2.
------ ---------- -----------
"Term Loans" shall have the meaning set forth in the Credit Agreement.
----------
"Term Notes" shall have the meaning set forth in the Credit Agreement.
----------
"Total Destruction" means any damage to or destruction of the Improvements
-----------------
or any part thereof which, in the reasonable estimation of the Mortgagee shall
require the expenditure of an amount in excess of Twenty Million Dollars
($20,000,000) to restore the Improvements to substantially the same condition of
the Improvements immediately prior to such damage or destruction.
"Total Taking" means a Taking, whether permanent or for temporary use,
------------
which, in the judgment of the Mortgagee, shall substantially interfere with the
normal operation of the Property by the Mortgagor.
SECTION 4.2. Use of Defined Terms. Terms for which meanings are
--------------------
provided in this Mortgage shall, unless otherwise defined or the context
otherwise requires, have such meanings when used in any certificate and any
opinion, notice or other communication delivered from time to time in connection
with this Mortgage or pursuant hereto.
SECTION 4.3. Credit Agreement Definitions. Unless otherwise defined
----------------------------
herein or the context otherwise requires, terms used in this Mortgage, including
its preamble and recitals, have the meanings provided in the Credit Agreement.
ARTICLE V
MISCELLANEOUS
-------------
SECTION 5.1. Further Assurances; Financing Statements.
----------------------------------------
SECTION 5.1.1. Further Assurances. The Mortgagor, at its expense, will
------------------
execute, acknowledge and deliver all such instruments and take all such other
action as the Mortgagee from time to time may reasonably request:
(a) to better subject to the lien and security interest of this
Mortgage all or any portion of the Collateral,
-24-
(b) to perfect, publish notice or protect the validity of the lien and
security interest of this Mortgage,
(c) to preserve and defend the title to the Collateral and the rights
of the Mortgagee therein against the claims of all Persons as long as this
Mortgage shall remain undischarged,
(d) to better subject to the lien and security interest of this
Mortgage or to maintain or preserve the lien and security interest of this
Mortgage with respect to any replacement or substitution for any Collateral
or any other after-acquired property, or
(e) in order to further effectuate the purposes of this Mortgage and
to carry out the terms hereof and to better assure and confirm to the
Mortgagee its rights, powers and remedies hereunder.
SECTION 5.1.2. Financing Statements. Notwithstanding any other provision
--------------------
of this Mortgage, the Mortgagor hereby agrees that, without notice to or the
consent of the Mortgagor, the Mortgagee may file with the appropriate public
officials such financing statements, continuation statements, amendments and
similar documents as are or may become necessary to perfect, preserve or protect
the security interest granted by this Mortgage.
SECTION 5.2. Additional Security. Without notice to or consent of the
-------------------
Mortgagor, and without impairment of the security interest and lien and rights
created by this Mortgage, the Mortgagee and the Lenders may accept from the
Mortgagor or any other Person additional security for the Secured Obligations.
Neither the giving of this Mortgage nor the acceptance of any such additional
security shall prevent the Mortgagee from resorting, first, to such additional
security, or, first, to the security created by this Mortgage, or concurrently
to both, in any case without affecting the Mortgagee's lien and rights under
this Mortgage.
SECTION 5.3. Defeasance; Partial Release, etc.
--------------------------------
SECTION 5.3.1. Defeasance. If the Term Loans and all other amounts owing
----------
pursuant to the Credit Agreement and the other Loan Documents shall be repaid in
full in accordance with the terms thereof, and if the Mortgagor shall pay, in
full, the principal of and premium, if any, and interest on the Secured
Obligations in accordance with the terms thereof and hereof and all other sums
payable hereunder by the Mortgagor and shall comply with all the terms,
conditions and requirements hereof and of the Secured Obligations, then on such
date, the Mortgagee shall, upon the request of the Mortgagor and at the
Mortgagor's sole cost and expense, execute and deliver such instruments, in form
and substance reasonably satisfactory to the Mortgagee, as may be necessary to
reconvey, release and discharge this Mortgage.
SECTION 5.3.2. Partial Release, etc. The Mortgagee may, at any time and
--------------------
from time to time, without liability therefor, and without prior notice to the
Mortgagor, release or reconvey any part of the Collateral, consent to the making
of any map or plat of the Property, join in
-25-
granting any easement thereon or join in any extension agreement or agreement
subordinating the lien of this Mortgage, or enter into any other agreement in
connection with the Collateral.
SECTION 5.4. Notices, etc. All notices and other communications provided
------------
to any of the parties hereto shall be in writing or by facsimile and addressed,
delivered or transmitted to such party at the address set forth in this
instrument in the manner set forth in the Credit Agreement.
SECTION 5.5. Waivers, Amendments, etc. The provisions of this Mortgage
------------------------
may be amended, discharged or terminated and the observance or performance of
any provision of this Mortgage may be waived, either generally or in a
particular instance and either retroactively or prospectively, only by an
instrument in writing executed by the Mortgagor and the Mortgagee.
SECTION 5.6. Cross-References. References in this Mortgage and in each
----------------
instrument executed pursuant hereto to any Section or Article are, unless
otherwise specified, to such Section or Article of this Mortgage or such
instrument, as the case may be, and references in any Section, Article or
definition to any clause are, unless otherwise specified, to such clause of such
Section, Article or definition.
SECTION 5.7. Headings. The various headings of this Mortgage and of each
--------
instrument executed pursuant hereto are inserted for convenience only and shall
not affect the meaning or interpretation of this Mortgage or such instrument or
any provisions hereof or thereof.
SECTION 5.8. Currency. Unless otherwise expressly stated, all references
--------
to any currency or money, or any dollar amount, or amounts denominated in
"Dollars" herein will be deemed to refer to the lawful currency of the United
States.
SECTION 5.9. Governing Law. THIS MORTGAGE SHALL BE DEEMED TO BE A
-------------
CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE.
SECTION 5.10. Successors and Assigns, etc. This Mortgage shall be
---------------------------
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
SECTION 5.11. Waiver of Jury Trial; Submission to Jurisdiction.
------------------------------------------------
(a) EACH OF THE MORTGAGOR AND THE MORTGAGEE HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS MORTGAGE, THE CREDIT AGREEMENT, ANY LOAN DOCUMENT
OR ANY OTHER RELATED INSTRUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF THE MORTGAGOR
OR THE MORTGAGEE. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
MORTGAGEE AND THE LENDERS TO ENTER INTO
-26-
THE TRANSACTIONS PROVIDED FOR IN THE CREDIT AGREEMENT AND TO MAKE THE
CREDIT EXTENSIONS.
(b) FOR THE PURPOSE OF ANY ACTION OR PROCEEDING INVOLVING THIS
MORTGAGE, THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT, THE MORTGAGOR
HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION
OF ALL FEDERAL AND STATE COURTS LOCATED IN THE STATE AND CONSENTS THAT IT
MAY BE SERVED WITH ANY PROCESS OR PAPER BY REGISTERED MAIL OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE IN ACCORDANCE WITH APPLICABLE LAW,
PROVIDED A REASONABLE TIME FOR APPEARANCE IS ALLOWED. THE MORTGAGOR
EXPRESSLY WAIVES, TO THE EXTENT IT MAY LAWFULLY DO SO, ANY OBJECTION, CLAIM
OR DEFENSE WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY
ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS MORTGAGE, THE CREDIT
AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY SUCH COURT, IRREVOCABLY WAIVES
ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM AND FURTHER IRREVOCABLY
WAIVES THE RIGHT TO OBJECT, WITH RESPECT TO ANY SUCH CLAIM, SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES NOT HAVE
JURISDICTION OVER THE PERSON OF THE MORTGAGOR. NOTHING CONTAINED HEREIN
WILL BE DEEMED TO PRECLUDE THE MORTGAGEE FROM BRINGING AN ACTION AGAINST
THE MORTGAGOR IN ANY OTHER JURISDICTION.
SECTION 5.1.2. Severability. Any provision of this Mortgage, the Credit
------------
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall as to such provision and such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Mortgage, the Credit Agreement or such Loan
Document or affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 5.1.3. Loan Document. This Mortgage is a Loan Document executed
-------------
pursuant to the Credit Agreement and, unless otherwise expressly indicated
herein, shall be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 5.1.4. Usury Savings Clause. It is the intention of the Mortgagor
--------------------
and the Mortgagee to conform strictly to the usury laws governing the Loan
Documents, and any interest payable under the Loan Documents shall be subject to
reduction to the amount not in excess of the maximum non-usurious amount allowed
under such laws, as construed by the courts having jurisdiction over such
matters. In the event the maturity of the Secured Obligations is accelerated by
reason of any provision of the Loan Documents, or by reason of an election by
the Mortgagee resulting from an Event of Default, then earned interest may never
include more than
-27-
the maximum amount permitted by law, computed from the dates of each advance of
loan proceeds under the Credit Agreement until payment, and any interest in
excess of the maximum amount permitted by law shall be canceled automatically
or, if theretofore paid, at the option of the Mortgagee, shall be rebated to the
Mortgagor, or shall be credited on the principal amount of the Secured
Obligations or, if all principal has been repaid, then the excess shall be
rebated to the Mortgagor. If any interest is canceled, credited against
principal or rebated to the Mortgagor in accordance with the foregoing sentence
and, if thereafter the interest payable hereunder is less than the maximum
amount permitted by applicable law, the rate hereunder shall automatically be
increased to the maximum extent possible to permit repayment to the Mortgagee
and the Lenders as soon as possible of any interest in excess of the maximum
amount permitted by law which was earlier canceled, credited against principal
or rebated to the Mortgagor pursuant to the provisions of the foregoing
sentence.
SECTION 5.15. Secured Obligations Increase. Any and all future advances
----------------------------
under this Mortgage and the Loan Documents shall have the same priority as if
the future advance was made on the date that this Mortgage was recorded. This
Mortgage shall secure the Secured Obligations to be due at the times provided in
the Loan Documents. Notice is hereby given that the Secured Obligations may
increase as a result of any defaults hereunder by Mortgagor due to, for example,
--------
and without limitation, unpaid interest or late charges, unpaid taxes or
insurance premiums which the Mortgagee elects to advance, defaults under leases
that the Mortgagee elects to cure, attorney fees or costs incurred in enforcing
the Loan Documents or other expenses incurred by the Mortgagee in protecting the
Collateral, the security of this Mortgage or the Mortgagee's rights and
interests.
SECTION 5.16. Collateral. Notwithstanding any provision contained herein
----------
to the contrary, in no event shall the Collateral include or be deemed to
include, and in no event shall the Mortgagee have or be deemed to have a
security interest in, any of the Mortgagor's inventory (including raw materials,
work-in-process, supplies and finished goods), accounts receivable (including
sellers' rights relating thereto, all contracts and contract rights relating
thereto and all books and records relating thereto), all collection accounts,
deposit accounts and other bank accounts relating to collection of the
foregoing, together with the proceeds and products of all of the foregoing,
which secures or is purported to secure obligations under the Revolving Credit
Agreement.
-28-
IN WITNESS WHEREOF, the undersigned, by its duly elected officers and
pursuant to proper authority of its board of directors has duly executed,
sealed, acknowledged and delivered this instrument as of the day and year first
above written.
Xxxxx X. Xxxxxxxxx Company, a Delaware corporation
By: __________________________________
Name: _________________________
Title: ______ President
By: __________________________________
Name: _________________________
Title: _______ Secretary
[CORPORATE SEAL]
Witnesses as To All Signatures
_____________________________
Name: ___________________
_____________________________
Name: ___________________
DRAFTED BY:
Xxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
-00-
XXXXX-XXXXX XXXXXXXXX XXXXXXXXXXXXXX
Xxxxx of ________________
County of ________________
On this ________________ day of March, 1998, before me, the undersigned officer,
personally appeared:
(a) ________________________________, with a residence at
____________________________.
(b) __________________________________, with a residence at
____________________________.
personally known and acknowledged himself/herself/themselves to me (or proved to
me on the basis of satisfactory evidence) to be the
(a) ________ President, and
(b) ________ Secretary
respectively of _______________________, (hereinafter, the "Corporation")
and that as such officer(s), being duly authorized to do so pursuant to its
bylaws or a resolution of its board of directors, executed, subscribed and
acknowledged the foregoing instrument for the purposes therein contained, by
signing the name of the Corporation by himself/herself/themselves in their
authorized capacities as such officer(s) as his/her/their free and voluntary act
and deed and the free and voluntary act and deed of said Corporation.
In Witness Whereof, I hereunto set my hand and official seal.
____________________________________
Notary Public
Notarial Seal My Commission Expires:
-30-
SCHEDULE 1
Legal Description of the Land
-----------------------------
[ ]
SCHEDULE 2
Permitted Encumbrances
----------------------
Those liens identified on Schedule B-1 of Title Commitment Number __,
dated as of March __, 1998, issued by_______________, which the Administrative
Agent has agreed to permit as Permitted Encumbrances.
