EXHIBIT 10.85
FEE AND LEASEHOLD MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS, FINANCING STATEMENT
AND SECURITY AGREEMENT
This Fee and Leasehold Mortgage, Assignment of Leases and Rents, Financing
Statement and Security Agreement (the "Mortgage") is made as of August __, 1996,
from Sugarloaf Mountain Corporation, a Maine corporation having a place of
business at c/o American Skiing Company, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the
"Mortgagor") to Fleet National Bank, as Agent under the Credit Agreement
referred to below having a place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ the ("Mortgagee"). All capitalized terms used herein without definition
shall have the meanings ascribed to them in the Credit Agreement (as defined
below).
1. Grant of Mortgage. For consideration paid, the Mortgagor, to secure:
(a) The full and prompt payment and performance when due, whether by
acceleration or otherwise, with such interest, commitment fees, prepayment
fees and other charges as may accrue thereon, either before or after
maturity thereof, by Mortgagor, its successors or assigns, and/or American
Skiing Company and the other Borrowers named in the Credit Agreement and
their respective successors or assigns (together with the Mortgagor, are
collectively referred to herein as the "Borrowers") of that certain Credit
Agreement dated as of June 28, 1996, together with any and all renewals,
amendments, modifications, consolidations and extensions thereof (the
"Credit Agreement"), TOGETHER WITH accompanying Revolving Credit Notes and
Swing Line Notes dated as of June 28, 1996 in the principal face amount of
up to SIXTY FIVE MILLION DOLLARS ($65,000,000.00), all together with any
amendments renewals, modifications, consolidations and extensions of the
foregoing (all collectively the "Notes");
(b) Any and all future advances made by Mortgagee to or for the
benefit of the Mortgagor, Borrowers or any one or more of them, whether
jointly or severally liable, direct or indirect, up to a maximum principal
amount outstanding from time to time (exclusive of costs and amounts
advanced to protect the security) of up to ONE HUNDRED MILLION DOLLARS
($100,000,000.00) together with interest, fees, costs, prepayment fees,
and other amounts now existing or hereafter arising:
(c) The full and prompt payment and performance of all of the
provisions, agreements, covenants and obligations set forth in this
Mortgage (the "Mortgage") or in any other Lender Agreements (as defined in
the Credit Agreement);
(d) Any and all additional advances made to preserve, enforce and
protect the Property, the Leases, the security interest created hereby on
the Property, or this Agreement and the Lender Agreements, including,
without limitation, taxes,
assessments or insurance premiums or for performance of any of the
Borrowers obligations under the Lender Agreements (whether or not the
original Borrower remains the owner of the Property at the time of such
advances); and
(e) Any and all other indebtedness, however incurred, which may now
or hereafter be due and owing from Borrowers or any one or more of them,
whether joint or several, to Mortgagee, now existing or hereafter coming
into existence, however and whenever incurred or evidenced, whether
expressed or implied, direct or indirect, absolute or contingent, or due
or to become due, and all renewals, modifications, consolidations and
extensions thereof.
(all collectively the "Secured Obligations")
Does hereby GIVE, GRANT, BARGAIN, SELL, ASSIGN and CONVEY unto Mortgagee,
its successors and assigns, forever, WITH MORTGAGE COVENANTS all of the
following described property (hereinafter collectively referred to as the
"Property"):
I. All real estate owned by Mortgagor located in Franklin County, Maine, whether
now owned or hereafter acquired, including, without limitation, the following
described parcels of real estate with the buildings and improvements now or
hereafter situated thereon (the "Owned Property"):
II. Lease by and among Mortgagor and the Town of Carrabassett Valley dated June
3, 1987.
All relating to real estate located in Franklin County, Maine with the
buildings and improvements now or hereafter situated thereon:
SEE EXHIBIT A ATTACHED HERETO AND MADE A PART HEREOF
FOR A DESCRIPTION OF SAID OWNED AND LEASED REAL ESTATE
together with all easements and rights relating, arising out of or
appurtenant thereto, including any and all extensions or renewals of the
leases, or substitutions or replacements thereof, and
All rights, privileges and benefits now existing or hereafter arising
under the leases, including, without limitation all rights to exercise
options to extend or renew the leases or to purchase the fee title to the
leasehold estates and appurtenances thereto, and all rights to insurance
proceeds, eminent domain awards or payments in lieu thereof, and
2
All rights of the Borrower in and to the premises described in Exhibit A
and the buildings, fixtures, improvements, alterations, or additions now
or hereafter acquired or erected on the leased premises
(individually, as amended to date, a "Lease", all collectively the
"Leasehold Estate," or the "Leases" and together with the Owned Property
the "Real Property")
III. Together with:
(a) All right, title and interest of Mortgagor, including, without
limitation, any after-acquired fee title or reversion in and to the said
Real Property and the rights-of-ways, streets and easements adjacent or
appurtenant thereto, and all easements, rights-of-way, licenses, operating
agreements, condominium rights, abutting strips and gores of land,
streets, ways, passages, rights, waters, water courses, water and flowage
rights and powers, minerals and soil, plants, and standing and fallen
timber and other emblements now or hereafter located on the Real Property
or under or above same, and all other appurtenances whatsoever belonging
or relating to said Real Property or any part thereof, or which hereafter
shall in any way belong, relate or be appurtenant thereto, whether now
owned or hereafter acquired by Mortgagor and the reversion and reversions,
remainder and remainders, and all the estate, right, title, interest,
property, possession, claim and demand whatsoever at law, as well as in
equity, of the Mortgagor of, in and to the same (all hereinafter referred
to as the "Land"); and
(b) All buildings, structures, parking areas, snowmaking and water
rights, landscaping, and other improvements of every nature now or
hereafter situated, erected or placed on the Land or appurtenant thereto,
including, without limitation, all plumbing, electrical, heating,
ventilating, air conditioning, and all other building components, (the
"Improvements"), and all materials intended for construction,
reconstruction, alteration and repairs of the Improvements now or
hereafter erected, all of which materials shall be deemed to be included
within the Improvements immediately upon the delivery thereof to the Land;
and
(c) All fixtures, machinery, equipment, furniture, inventory,
building supplies, skilifts, snowmaking equipment, appliances and other
articles of personal property (the "Personal Property") and all other
fixtures and equipment now or hereafter owned by Mortgagor and located in,
on or about, or used or intended to be used with or in connection with the
Land or the Improvements, whether installed in such a way as to become a
part thereof or not, including all additions, improvements, betterments,
renewals and replacements of any of the foregoing, whether now owned or
hereafter acquired by Mortgagor; and
3
(d) All right, title and interest of Mortgagor in and to all
policies of insurance, licenses, franchises, permits, leases, approvals,
service and maintenance contracts, property management agreements,
equipment leases, tradenames, trademarks, servicemarks, computer programs,
information and data, logos, goodwill, accounts, chattel paper and general
intangibles as defined in the Uniform Commercial Code as enacted in the
State of Maine, which in any way now or hereafter belong, relate or
appertain to the Land, the Improvements or the Personal Property or any
part thereof, all whether now owned or hereafter acquired by Mortgagor,
including, without limitation, all condemnation payments, insurance
proceeds, accounts and escrow funds and all other property of Mortgagor
deposited with Mortgagee or held by Mortgagee pursuant to the Credit
Agreement or the Lender Agreements (the "Intangible Property"); and
(e) All present and future leases, tenancies, occupancies and
licenses, whether written or oral, of the Land, the Improvements, the
Personal Property and the Intangible Property, or any combination or part
thereof (the "Rental Leases"), and all income, revenues, receipts, rents,
issues, royalties, profits, rent rolls, security deposits and other
benefits of the Land, the Improvements, the Personal Property and the
Intangible Property, from time to time accruing, and all payments under
the Rental Leases (the "Revenues");
(f) All the right, title, interest of Mortgagor in and to all
engineering, survey and architectural specifications, plans and data, all
other records, plans and specifications relating to the Improvements on
the Land and Personal Property (hereinafter collectively referred to as
the "Plans"); and
(g) All proceeds, products, substitutions and accessions of the
foregoing of every type, all whether now owned or hereafter acquired.
(h) All judgments, awards of damages and settlements hereafter made
as a result or in lieu of any taking of the Property under the power of
eminent domain, or for any damage to the Property.
Also granting to Mortgagee hereby the right, upon any default hereunder or
demand upon any of the obligations secured hereby, to foreclose and sell the
aforesaid Property by any means permitted by law, including pursuant to the
STATUTORY POWER OF SALE.
TO HAVE AND TO HOLD the Property, with all the privileges and
appurtenances to the same belonging, to the Mortgagee, its respective successors
and assigns, to Mortgagee and its use and behoof forever;
4
Advances secured hereby may be made to or for the benefit of the
Mortgagor, any Borrower or any one or more of them.
Mortgagor COVENANTS and AGREES with Mortgagee as follows:
2. Secured Obligations. Mortgagor shall promptly pay and perform the
Secured Obligations. The parties may from time to time extend, renew, alter, and
amend the Secured Obligations secured hereby. All provisions of this Mortgage
shall apply to each further advance as well as to all other Secured Obligations
secured hereby regardless of whether the advance is designated as being secured
hereby. Nothing herein contained, however, shall limit the amount secured by
this Mortgage if such amount is increased by accrued interest, advances made by
Mortgagee, as herein elsewhere provided for to protect the security or is
increased by costs of collection and foreclosure.
3. Representations. The Mortgagor warrants and represents that (i) this
Mortgage has been duly authorized, executed and delivered by and on behalf of
the Mortgagor, (ii) the Mortgagor is duly existing and in good standing with all
power, authority and legal right to engage in the transaction contemplated by
this Mortgage and the Lender Agreements, (iii) the execution and delivery of
this Mortgage and the Lender Agreements and the carrying out of the transaction
contemplated thereby will not conflict with or result in a breach of the terms
of any agreement or law or order of any court or governmental body, (iv) there
are no material actions, suits or proceedings, including, without limitation,
eminent domain proceedings pending, or to the knowledge of the Mortgagor,
threatened before any court or other governmental body or agency which would
have a material adverse effect on the Property or the Mortgagor or the
Mortgagor's ability to perform its obligations under this Mortgage or under the
other Lender Agreements, (v) the Land is in material compliance with applicable
zoning, building, environmental and all other laws, ordinances and regulations
relating to the use and occupancy thereof and the Mortgagor has no knowledge of
any claim of violation of any such legal requirements, (vi) all material
licenses and permits necessary for the use and occupancy of the Land have been
issued and are in full force and effect, (vii) the material improvements on the
Land and the tangible Personal Property are in good working order and free from
structural defects, (viii) the Mortgagor has no knowledge of any claim
challenging the Mortgagor's title to the Real Property, and (ix) the Mortgagor
has no knowledge of any existing default, or claim thereof, under any leases or
other arrangements for the use of the Real Property, either on the part of the
Mortgagor or any other party thereto.
4. Title. Except as disclosed or referred to in Exhibit B, Mortgagor has
good, record and marketable title to an indefeasible estate in fee simple in the
Owned Property and good title to the Personal Property, free and clear of all
liens and encumbrances, except as expressly permitted under the Credit
Agreement. Mortgagor has good right and power to convey the Real Property, Land,
Personal Property and Improvements to Mortgagee to hold
5
as aforesaid, that this Mortgage is and will remain a valid and enforceable
first lien and security interest on the aforesaid property, and that Mortgagor
shall and will warrant and defend the same to Mortgagee forever against the
claims and demands of all persons except as aforesaid.
5. Leasehold Estate. Mortgagor holds a valid and binding leasehold
interest in the Leasehold Estate, which Leasehold Estate is subject to no prior
liens, conveyances or encumbrances except as set forth on Exhibit B hereto;
Mortgagor may lawfully mortgage and assign the same and this Mortgage does not
violate any other agreement by which the Mortgagor is bound. Mortgagor shall not
hereafter assign, sublease, encumber or transfer any interest in or under the
Leasehold Estate or consent to any subordination of the Leasehold Estate while
the Secured Obligations remain outstanding or committed for, except with the
prior written consent of the Mortgagee.
Each Lease is in full force and effect in accordance with its terms and
there have been no changes, alterations or amendments to the Leases. Mortgagor
will make no material, adverse changes, alterations or amendments to the Leases
without prior written consent of Mortgagee, its successors or assigns; any such
changes to be void and of no effect without such consent. Except as disclosed in
writing to Mortgagee, all rents and payments under the Leases have been paid to
the extent payable to date; and no defaults exist under the Leases, and no event
has occurred or is occurring which, with the passage of time or service of
notice, or both, would constitute an event of default thereunder.
Mortgagor will well and truly perform, or cause to be performed, all its
obligations and agreements as lessee under the Leases, and under any renewals or
extensions thereof and will not do or suffer anything which will impair any
Lease or which would be an event of default thereunder. Mortgagor shall exercise
all renewals of the term of any Lease while the obligations secured hereby
remain outstanding or committed for, except where the failure to so renew would
not constitute a Material Adverse Effect (as defined in the Credit Agreement).
Mortgagor, for itself, its successors and assigns, acknowledges that Mortgagee,
its successors and assigns, shall have no obligation to perform the
responsibilities of the lessee under any Lease, such responsibilities being
those of Mortgagor.
Upon reasonable request of the Mortgagee, Mortgagor shall use its best
efforts to procure from each Landlord to any Lease a certificate stating that
the Lease is in good standing. Mortgagor shall promptly notify Mortgagee of any
default under the Lease or the occurrence of any event under any Lease, which
with the passage of time or service of notice or both, would constitute an event
of default, and of any oral or written claim or notice of default received from
a Landlord under any Lease; and in addition to any other rights contained herein
Mortgagor shall permit the Mortgagee, its agents and employees to enter upon and
inspect the premises subject to such Lease at all reasonable times and upon
reasonable notice.
6
6. Taxes and Assessments. Mortgagor shall promptly pay and discharge, when
due, all taxes and assessments of every type or nature levied or assessed
against the Real Property, all water and sewerage charges, and any other
governmental claim, obligation or encumbrance against the Real Property which
may be or become superior to this Mortgage (collectively, the "Impositions")
except as permitted in accordance with the provisions of the Credit Agreement.
Subject to the provisions of the Credit Agreement, if at any time the Mortgagee
does not require the escrow of payments pursuant to Paragraph 7 herein,
Mortgagor shall deliver to Mortgagee receipts evidencing payments of such taxes,
assessments, charges and encumbrances not later than twenty days after the final
date for payment without interest or penalty.
7. Monthly Reserve Payments. Upon the occurrence of an Event of Default,
which has not been waived in writing by the Mortgagee and the Required Lenders,
Mortgagee may require that the Mortgagor pay to the Mortgagee monthly, on the
first day of each month, a sum reasonably determined by the Mortgagee to be
sufficient to provide in the aggregate a fund adequate to pay each Imposition at
least thirty (30) days before it becomes delinquent, and, in addition, shall pay
to the Mortgagee on demand any balance necessary to pay in full each Imposition
at least thirty (30) days before the date on which it becomes due and payable.
Such sums shall not bear interest and may be commingled with the general assets
of the Mortgagee. The Mortgagor shall furnish to the Mortgagee all original
bills relating to any Imposition promptly upon issuance. Mortgagor agrees that
should there be insufficient funds so deposited with Mortgagee for said taxes,
assessments, charges and premiums when due, it will upon demand by Mortgagee
promptly pay to Mortgagee amounts necessary to make such payments in full; any
surplus of such reserve funds may be applied toward the payment of the Secured
Obligations or credited toward such taxes, assessments charges and premiums.
Upon the occurrence of an Event of Default, the Mortgagee may apply such funds
toward the payment of the Secured Obligations without causing thereby a waiver
of any rights, statutory or otherwise, and specifically such application shall
not constitute a waiver of the right of foreclosure hereunder. Mortgagor hereby
pledges to Mortgagee all the foregoing sums so held hereunder for such purposes.
Subject to the above, the Mortgagee may discharge taxes, liens, security
interests, or other encumbrances at any time levied against or placed on the
Property except as noted herein and except those which are permitted or are
being contested in accordance with the provisions of the Credit Agreement, pay
any premiums on any insurance to be carried by Mortgagor, or provide for the
maintenance and preservation of the Real Property and add the expense thereof to
the Secured Obligations secured hereby and charge interest thereon as provided
hereinafter without waiving any default.
The Mortgagor shall have the right, after giving written notice to the
Mortgagee and subject to the conditions stated below, to contest by appropriate
legal proceedings the amount or validity of any Imposition. In no event shall
the Mortgagor be entitled to delay payment of any Imposition if the delay in
payment could subject any portion of the Mortgaged
7
Property to possible foreclosure or in any event unless the Mortgagor deposits
with Mortgagee a sum of money or such other security as the Mortgagee deems
reasonable to cover the amount of such Imposition plus any interest or penalty
that may become due as a result of such contest.
8. Insurance.
(a) Mortgagor shall keep the Real Property, Personal Property and
Improvements insured against loss or damage by fire, the perils against
which insurance is afforded by the extended coverage endorsement, and such
other risks and perils as Mortgagee may reasonably require from time to
time, including, without limitation, insurance against flood damage if the
Improvements are located in a flood hazard area or required by federal law
or regulation (to the minimum amount required by federal law or
regulation) and insurance against loss of rental income.
Such policy or policies of such insurance shall be in such form and
shall be in such amounts as Mortgagee may reasonably require. Whenever
requested by Mortgagee, such policies shall be delivered immediately to
Mortgagee. Any and all amounts received by Mortgagee under any of such
policies may be applied by Mortgagee to the Secured Obligations secured
hereby in such manner as Mortgagee may elect, or, at the option of
Mortgagee, the entire amount so received or any part thereof may be
released. Upon foreclosure of this Mortgage or other acquisition of the
Property or any part thereof by Mortgagee, such policies shall become the
absolute property of Mortgagee, but receipt of any insurance proceeds and
any disposition of the same by Mortgagee shall not constitute a waiver of
any rights of Mortgagee, statutory or otherwise, and specifically shall
not constitute a waiver of the right of foreclosure by Mortgagee upon an
Event of Default.
(b) Mortgagor shall pay all premiums on insurance policies, and at
Mortgagee's option, shall pay in the manner provided under Section 7. The
liability insurance policies shall name Mortgagee as an "additional
insured." The property insurance policies shall name Mortgagee as
"mortgagee and loss payee" shall be first payable in case of loss to
Mortgagee, and shall contain mortgage clauses and lender's loss payable
endorsements in form and substance reasonably acceptable to Mortgagee.
Mortgagor shall deliver proof of all such insurance to Mortgagee, and upon
request, Mortgagor shall promptly furnish to Mortgagee all renewal notices
and all receipts of paid premiums.
(c) All policies of insurance required by this Mortgage shall
contain clauses or endorsements to the effect that (i) no act or omission
of either Mortgagor or anyone acting for Mortgagor (including, without
limitation, any representations made by Mortgagor in the procurement of
such insurance), which might otherwise
8
result in a forfeiture of such insurance or any part thereof, no occupancy
or use of the Property for purposes more hazardous than permitted by the
terms of the policy, and no foreclosure or any other change in title to
the Property or any part thereof, shall affect the validity or
enforceability of such insurance insofar as Mortgagee is concerned, (ii)
the insurer waives any right of setoff, counterclaim, subrogation, or any
deduction in respect of any liability of Mortgagor and Mortgagee, (iii)
such insurance is primary and without right of contribution from any other
insurance which may be available, (iv) such policies shall not be
modified, canceled or terminated without the insurer thereunder giving at
least thirty (30) days prior written notice to Mortgagee by certified or
registered mail, and (v) that Mortgagee shall not be liable for any
premiums thereon or subject to any assessments thereunder, and shall in
all events be in amounts sufficient to avoid any coinsurance liability.
(d) All policies of insurance required by this Mortgage shall be
issued by companies licensed to do business in the State of Maine and
shall be reasonably acceptable to Mortgagee.
(e) In the event of any loss or damage to the Real Property,
Improvements or Personal Property in excess of One Hundred Thousand
dollars ($100,000.00), Mortgagor shall give immediate written notice to
the insurance carrier and Mortgagee and shall promptly proceed to satisfy
all conditions to the receipt of insurance proceeds. Upon an Event of
Default which has not been waived in writing by the Mortgagee and the
Required Lenders, Mortgagor hereby irrevocably authorizes and empowers
Mortgagee, at Mortgagee's option and in Mortgagee's sole discretion, as
attorney in fact for Mortgagor, to make proof of such loss, to adjust and
compromise any claim under insurance policies, to appear in and prosecute
any action arising from such insurance policies, to collect and receive
insurance proceeds, and to deduct therefrom Mortgagee's reasonable
expenses incurred in the collection of such proceeds. Subject to the
foregoing conditions, Mortgagor further authorizes Mortgagee, at
Mortgagee's option, to (i) apply the balance of such proceeds to the
payment of the Secured Obligations whether or not then due, or (ii) if
Mortgagee shall require the reconstruction or repair of the Property, to
hold the balance of such proceeds to be used to pay Impositions and the
Secured Obligations as they become due during the course of reconstruction
or repair of the Property and to reimburse Mortgagor, in accordance with
such terms and conditions as Mortgagee may prescribe, for the costs of
reconstruction or repair of the Property, and upon completion of such
reconstruction or repair to apply any excess to the payment of the Secured
Obligations. If the Property is sold or the Property is acquired by
Mortgagee, all right, title and interest of Mortgagor in and to any
insurance policies and unearned premiums thereon and in and to the
proceeds thereof resulting from loss or damage to the Property prior to
the sale or acquisition shall pass to Mortgagee or any other successor in
interest to Mortgagor or purchaser or grantor of the Property
9
but receipt of any insurance proceeds and any disposition of the same by
Mortgagee shall not constitute a waiver of any rights of Mortgagee,
statutory or otherwise, and specifically shall not constitute a waiver of
the right of foreclosure by Mortgagee upon an Event of Default or failure
of performance by Mortgagor of any of the Secured Obligations.
In the event any loss or damage to the Real Property, Improvements
or Personal Property is less than One Hundred Thousand dollars
($100,000.00), the Mortgagor shall promptly restore the damaged property
to its condition prior to such damage.
9. Preservation and Maintenance of the Property.
(a) Mortgagor shall not permit or commit waste, impairment, or
deterioration of the Property or abandon the Property; shall restore or
repair promptly and in a good and workmanlike manner all or any part of
the Property in the event of any material damage, injury or loss thereto,
to the substantial equivalent of its condition prior to such damage,
injury or loss, or such other condition as Mortgagee may approve in
writing (provided, however, the insufficiency of such proceeds shall not
relieve Mortgagor of its obligations to restore hereunder), shall keep the
Property, including the Improvements and the Personal Property, in good
order, repair and working condition and shall replace fixtures, equipment,
machinery and appliances on the Property when necessary to keep such items
in good order, repair, and working condition and in accordance with the
requirements of all fire underwriters and licensing boards, and shall
comply with all laws, ordinances, regulations and requirements of any
governmental body applicable to the Property unless such non-compliance
does not have a Material Adverse Effect.
(b) Mortgagor covenants and agrees that Mortgagor and the Property
shall at all times comply with the requirements of all present and future
federal, state, and local land use and zoning statutes, regulations,
ordinances, licenses, permits, agreements and orders; except as would not
constitute a Material Adverse Effect.
(c) Mortgagor covenants and agrees to give Mortgagee prompt notice
of any non-compliance with such laws, ordinances, regulations or
requirements and of any notice of non-compliance therewith which it
receives or any threatened or pending proceedings in respect thereto or
with respect to the Property (including, without limitation, material
changes in zoning classifications or land use requirements) which, if
adversely determined, would result in a Material Adverse Effect.
(d) Neither Mortgagor nor any tenant or other person shall remove,
demolish or alter any Improvements now existing or hereafter erected on
the Property
10
or any Personal Property in or on the Property except when incident to the
replacement of Personal Property with items of like kind and value. Except
as specifically provided in the Credit Agreement, Mortgagor further
covenants and agrees that, without the prior written consent of Mortgagee,
herein, no additional part of the Property shall be declared, or become
the subject of, a condominium under the Maine Condominium Act (33 M.R.S.A.
ss.1601-101), as it may be amended or supplemented, or become the subject
of any covenants or restrictions, or any planned unit development, or any
other type of development that would control or restrict the uses to which
the Land and Improvements may be put or the scheme or arrangement or its
development or the design, location or character of its buildings or
improvements, or which would impose Impositions or assessments of any type
upon any owners or tenants of the Property, or upon any other parties who
may use or enjoy the Property.
(e) If at any time the then existing structure located on or use or
occupancy of the Property shall be permitted pursuant to any zoning or
other law, ordinance or regulation, only so long as such use or occupancy
shall continue, that Mortgagor shall not cause or permit such use or
occupancy to be discontinued without the prior written consent of the
Mortgagee, unless such discontinuance would not result in a Material
Adverse Effect.
10. Inspection. Subject to the provisions of the Credit Agreement,
Mortgagee shall have the right to visit and inspect the Property and any other
of the properties of the Mortgagor, to examine the records and books of account
of the Mortgagor, and to discuss the affairs, finances and accounts of the
Mortgagor with and to be advised as to the same by its and their officers, all
at such reasonable times and intervals as the Mortgagee may desire. Mortgagor
shall permit the Mortgagee and its representatives to examine said books and
records and all supporting vouchers and data any time and from time to time upon
request by the Mortgagee at the mortgaged Property or at such other place as
such books and records are customarily kept; and Mortgagor hereby agrees to
furnish to Mortgagee financial statements in such form and detail as required by
the Credit Agreement.
11. Releases, Amendments, Etc. Without affecting the liability of
Mortgagor or any other person (except any person expressly released in writing)
for payment or for performance of any of the Secured Obligations contained
herein, and without affecting the rights of Mortgagee with respect to any other
security not expressly released in writing, and without impairing the validity
or priority of this Mortgage, Mortgagee may at any time and from time to time,
either before or after the maturity of the Secured Obligations without notice or
consent:
11
(i) Release in whole or part the liability of any person or of
any other security for payment or performance of all or any part of
the Secured Obligations,
(ii) Extend the time or otherwise alter, increase or decrease
the terms of payment or interest rate subject to the terms of the
Credit Agreement of all or any part of the Secured Obligations or
modify or waive any Secured Obligations, or subordinate, release,
modify or otherwise deal with the lien or charge hereof,
(iii) Exercise or refrain from exercising or waive any right
Mortgagee may have, including, without limitation, the declaration
of default under and foreclosure of this Mortgage without first
exhausting other remedies or collateral or taking any other action
against any other person,
(iv) Accept additional security of any kind, or
(v) Release or otherwise deal with any property, real or
personal, securing the Secured Obligations, including all or any
part of the Property.
No delay by Mortgagee in exercising any right or remedy hereunder, or
otherwise afforded by law, shall operate as a waiver thereof or preclude the
exercise thereof during the continuance of any default hereunder.
Without limiting the generality of the foregoing, Mortgagor agrees to the
provisions of any instrument evidencing, securing or otherwise executed in
connection with the Secured Obligations, and agrees that the obligations of any
Borrower hereunder shall not be released or discharged, in whole or in part, or
otherwise affected by (i) the failure of the Mortgagee to assert any claim or
demand or to enforce any right or remedy against any other Borrower; (ii) any
extensions or renewals of the Secured Obligations; (iii) any rescissions,
waivers, amendments or modifications of any of the terms or provisions of the
Secured Obligations, the Credit Agreement or of the Lender Agreements or any
other agreement evidencing, securing or otherwise executed in connection with
this Secured Obligations or the Credit Agreement; (iv) the substitution or
release of any entity primarily or secondarily liable for the Secured
Obligations or Credit Agreement or the Lender Agreements; (v) the adequacy of
any rights the Mortgagee may have against any collateral or other means of
obtaining repayment of the Secured Obligations and the Credit Agreement; (vi)
the impairment of any collateral securing the Secured Obligations and the Credit
Agreement, including, without limitation, the failure to perfect or preserve any
rights the Mortgagee might have in such collateral or the substitution,
exchange, surrender, release, loss or destruction of any such collateral; or
(vii) any other act or omission which might in any manner or to any extent
12
vary the risk of the Mortgagor or otherwise operate as a release or discharge of
any Borrower, all of which may be done without notice to the Mortgagor.
Any agreement hereafter made by Mortgagor and Mortgagee pursuant to or
amending this Mortgage and the Secured Obligations shall be superior to the
rights of the holder of any intervening lien or encumbrance to the extent
allowed by law.
12. Further Assurances. Mortgagor at Mortgagor's expense will do, execute,
acknowledge and deliver to Mortgagee such further deeds, acts, conveyances,
mortgages, assignments, transfers and assurances as Mortgagee in its discretion
may reasonably require from time to time to better establish and perfect the
property and rights created or intended by Mortgagee to be created hereunder or
to facilitate the Mortgagor's performance hereunder, including, without
limitation, the execution and delivery, recording and/or filing and from time to
time thereafter at such time and in such offices and places as shall be deemed
desirable by Mortgagee, any and all such other and further assignments,
mortgages, security agreements, financing statements, continuation statements,
instruments of further assurance, certificates and other documents as may, in
the opinion of Mortgagee, be necessary or desirable in order to effectuate,
complete, or perfect, or to continue and preserve (a) the obligations of
Mortgagor under this Mortgage, and (b) the lien and security interest created by
this Mortgage upon the Property.
13. Transfers, Etc. Except as expressly permitted in the Credit Agreement,
the Mortgagor herein shall not sell, convey, assign, option, mortgage, encumber,
hypothecate or otherwise dispose of the Property or any portion thereof or
interest therein, whether legal or equitable, either voluntarily or
involuntarily, by any means whatsoever, or create or suffer to exist any lien,
encumbrance, security interest, pledge, restriction, mechanics lien, attachment
or other charge upon the Real Property, Personal Property or Improvements,
including, without limitation, any lease with an option to purchase, bond for
deed, purchase and sale contract coupled with transfer of possession or lease
with a term of more than two (2) years not approved hereunder. This condition
shall continue until all Secured Obligations secured hereby are satisfied, and
permission given or election not to foreclose or accelerate said Secured
Obligations by Mortgagee, its successors or assigns, as to any one such
transfer, shall not constitute a waiver of any rights as to any subsequent such
transfer of title as to which this condition shall fully remain in force and
effect.
14. Events of Default. This Mortgage and the Secured Obligations shall at
the option of the Mortgagee herein become immediately due and payable upon each
of the following (an "Event of Default"):
(a) An Event of Default under the Credit Agreement;
(b) Breach of any covenant contained in Sections 6, 7, 8 or 14
herein.
13
(c) Mortgagor fails to duly observe or perform any other term,
covenant, condition or agreement contained in this Mortgage, and the
continuance of such failure for a period of twenty (20) days after written
notice thereof from Mortgagee, except as otherwise provided herein; or
(d) any representation or warranty made in writing by or on behalf
of Mortgagor or any Borrower herein or in connection with any of the
transactions contemplated hereby shall prove to have been false or
incorrect in any material respect on the date as of which made.
15. Remedies. If an Event of Default has occurred which has not been
waived in writing by the Mortgagee and the Required Lenders, Mortgagee may, at
its option, without notice of its election and without demand, do any one or
more of the following, all of which are authorized by Mortgagor:
(a) To the extent not otherwise provided in the Credit Agreement,
declare the Secured Obligations whether evidenced by any instrument or
agreement and whether or not secured hereby, and the underlying agreements
of other parties securing the Secured Obligations, immediately due and
payable.
(b) To the extent not otherwise provided in the Credit Agreement,
cease advancing money or extending credit to or for the benefit of the
Mortgagor under any agreement, whether or not secured hereby without need
for the expiration of any applicable cure period.
(c) Foreclose this Mortgage under any method of foreclosure in
existence at the time or now existing, or under any other applicable law.
The Mortgagee shall have the STATUTORY POWER OF SALE in addition to all
other rights and remedies. Advertising of any foreclosure notice shall be
in any newspaper of state-wide circulation or of general circulation in
the county where the Property is located or as otherwise permitted by law.
Such foreclosure may be against the entire Property or such portions
thereof in such order and at such times as Mortgagee may determine all in
its discretion, and the deferral or delay in foreclosure against any
portion of the Property shall not impair the right of Mortgagee to
subsequently foreclose
(d) To the extent not otherwise provided in the Credit Agreement,
exercise all of the remedies of a secured party under the Uniform
Commercial Code as now in effect in the State of Maine, and such further
remedies as may from time to time hereafter be provided in the State of
Maine for a secured party or creditor. Mortgagor agrees that all rights of
Mortgagee as to Personal Property, Intangible Property and Plans as to the
Land, Improvements and Revenues, and rights and
14
interest appurtenant thereto, may be exercised together or separately and
in such order as the Mortgagee may elect. Mortgagor further agrees that in
exercising its power of sale as to the Property constituting personal
property and/or fixtures and rights and interest appurtenant thereto, the
Mortgagee may sell said collateral or any part thereof, either separately
from or together with the said real estate, rights and interests
appurtenant thereto, or any part thereof, all as the Mortgagee may in its
discretion elect. In particular, the Mortgagee may proceed to enforce
rights against, seek the replevin of, and/or sell personal property
collateral prior to or during the pendency of any real estate foreclosure
proceeding, redemption period, or foreclosure sale without waiving said
foreclosure.
(e) Enter upon and take possession of the Property or any part
thereof, either directly or through a receiver, and exclude the Mortgagor,
its agents, managers and servants, and to perform any acts Mortgagee deems
necessary or proper to conserve the security, and to collect and receive
all Revenues, General Intangibles, proceeds and profits thereof, including
those past due as well as those accruing thereafter, and use, manage,
operate and control the Property. Mortgagee or a receiver may also take
possession of, and for these purposes use, any and all Property used by
Mortgagor in the operation, rental or leasing thereof or any part thereof.
The expense (including receiver's fees, counsel fees, costs and agent's
compensation) incurred pursuant to the powers herein contained shall be
secured hereby. Mortgagee shall (after payment of all costs and expenses
incurred) apply such Revenues received by it on the Secured Obligations in
such order as Mortgagee determines; and Mortgagor agrees that exercise of
such rights and disposition of such funds shall not constitute a waiver of
any foreclosure once commenced nor preclude the later commencement of
foreclosure for breach hereof. The right to enter and take possession of
said property, to manage and operate the same, and to collect the income,
rents, issues and profits thereof, whether by a receiver or otherwise,
shall be cumulative to any other right or remedy hereunder or afforded by
law, and may be exercised concurrently therewith or independent thereof.
Mortgagee shall be liable to account only for such income, rents, security
deposits, proceeds and profits actually received by Mortgagee.
(f) Prevent or cure any defaults under the Leases as Mortgagee deems
necessary or desirable in order to preserve the Leases, without awaiting
the expiration of any grace period, including any default specified in a
notice of default from any of the landlords under the Leases;
(g) In the name of the Mortgagor or otherwise perform the
Mortgagor's obligations under the Leases and exercise all rights, options,
powers and privileges of the Mortgagor granted under the Leases without
notice to the Mortgagor and with full power to renew, amend or alter the
Leases or disclaim any subleases;
15
(h) Reassign any part or all of the Mortgagor's right, title and
interest in and to the Leases with notice to the Mortgagor, but without
liability on the part of the Mortgagor to cure defaults or to pay damages
relating to the default;
(i) Sell or otherwise dispose of the Property (in its then condition
or after further construction and preparation thereof, utilizing in
connection therewith any of Mortgagor's assets, without charge or
liability therefor), at foreclosure or secured party's sale (which sale
Mortgagee may postpone from time to time to the extent permitted by law),
all as Mortgagee deems advisable, for cash or credit; provided, however,
that Mortgagor shall be credited with the net proceeds of such sale only
when such proceeds are finally collected by Mortgagee and the Mortgagor
shall pay any deficiency on demand. Mortgagee may become the purchaser at
any such sale.
(j) Use or transfer, without charge or liability to Mortgagee
therefore, any of Mortgagor's General Intangibles, Plans, trade names,
service marks, trademarks, licenses, certificates of authority or
advertising materials in advertising for the operation, sale and selling
of the Property.
(k) Mortgagor recognizes that in the event Mortgagor defaults, no
remedy of law will provide adequate relief to Mortgagee, therefore,
Mortgagor agrees that Mortgagee shall be entitled to temporary and
permanent injunctive relief to cure such default in any such case without
the necessity of proving actual damages.
Mortgagor shall pay to Mortgagee, immediately and without demand, all sums
of money advanced by Mortgagee, together with interest on each such advancement
at a rate of interest at the highest interest rate per annum required by the
Credit Agreement secured hereby, and all such sums and interest thereon shall be
secured hereby. Mortgagee in its discretion, after the payment of expenses and
the costs of protection, preservation and sale of the Property, may apply the
net proceeds of the Property to the Secured Obligations. If an Event of Default
shall have occurred which has not been waived in writing by the Mortgagee and
the Required Lenders, Mortgagee, upon application to a court of competent
jurisdiction, shall be entitled as a matter of strict right and without regard
to the asserted value of any security for the Secured Obligations to the
appointment of a receiver to take possession of and to operate the Property and
to collect and apply the Revenues. The receiver shall have all of the rights and
powers permitted under the laws of the State of Maine. Mortgagor will pay to
Mortgagee upon demand, all expenses, including receiver's fees, reasonable
attorneys' fees, costs and agent's compensation, incurred pursuant to such
appointment and all such expenses shall be a portion of the Secured Obligations.
The entering upon and taking possession of and maintaining of control of the
Property by Mortgagee or the receiver and the application of Revenues as
provided herein shall not cure or waive any Event of Default or invalidate any
other right or remedy of Mortgagee hereunder.
16
All remedies provided in this Mortgage are distinct and cumulative to any
other right or remedy under this Mortgage, the Notes, the Credit Agreement or
under the other Lender Agreements or afforded by law or equity, and may be
exercised concurrently, independently or successively against Mortgagor or any
Borrower or any other collateral for the Secured Obligations, without waiving or
impairing this Mortgage. All of Mortgagee's rights and remedies are cumulative
and non-exclusive.
16. Expenses. The Mortgagor shall pay to or reimburse the Mortgagee on
demand and as a part of the Secured Obligations secured hereby any and all
reasonable expenses, including, without limitation, reasonable counsel fees and
expenses and/or receiver's expenses, incurred or paid by the Mortgagee in
connection with the preparation, execution, administration, preservation,
collection or enforcement of this Mortgage, the Property or the Secured
Obligations, or such expenses to be paid include without limitation those
incurred in any litigation, contest, dispute, suit or proceeding (whether
instituted by Mortgagee, Mortgagor, any Borrowers or any other party) to
protect, collect, enforce, sell, take possession of or liquidate any of the
Property, to enforce any rights of Mortgagee against Mortgagor, any Borrowers or
against any other person and those expenses incurred by Mortgagee in defending,
settling or satisfying any claim, action or demand asserted by any receiver,
trustee, creditor's committee or debtor-in-possession in any bankruptcy or
reorganization, any assignee or assignee for the benefit of creditors, creditor,
stockholder, or by any other person, whether in connection with the Mortgagor,
any Borrowers, the Secured Obligations or any documents, transaction or
Collateral related thereto, or any alleged theory of preference, fraudulent
conveyance, subordination, usury, ultra ▇▇▇▇▇, invalidity, interference,
control, misrepresentation, conspiracy, or similar theory, or otherwise.
17. Survival. All representations and warranties of Mortgagor, and all
terms, provisions, conditions and agreements to be performed by Mortgagor
contained herein, and in any of the other agreements shall be true and satisfied
at the time of the execution of this Mortgage, and shall survive the closing
hereof and the execution and delivery of this Mortgage.
18. Governing Law. This Mortgage shall be construed in accordance with,
and governed by, the laws of the State of Maine. Wherever possible, each
provision of this Mortgage shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provisions of this Mortgage
shall conflict with, be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Mortgage. In the event that any provision or clause of this Mortgage or
the other Lender Agreements conflicts with applicable law, such conflict shall
not affect other provisions which can be given effect without the conflicting
provision, and to this end, the provisions of this Mortgage are declared to be
severable.
17
19. Payments. Mortgagor irrevocably waives the right to direct the
application of any and all payments at any time or times hereafter received by
Mortgagee from Mortgagor, and Mortgagor do hereby irrevocably agree that
Mortgagee shall have the continuing exclusive right to apply and reapply any and
all payments received at any time or times hereafter against the Secured
Obligations hereunder in such manner as Mortgagee may deem advisable.
20. Binding Effect Etc. The covenants and agreements herein contained
shall bind, and the benefits and advantages thereof shall inure to, the
respective heirs, executors, administrators, successors and assigns of the
Mortgagor and Mortgagee. Wherever used, the singular number shall include the
plural, the plural the singular, the use of any gender shall be applicable to
all genders.
21. Notices. Except as otherwise specified in this Mortgage, any and all
notices, demands, elections or requests provided for or permitted to be given
pursuant to this Mortgage (hereinafter in this Section referred to as "Notice")
shall be in writing to the parties at the addresses provided in the introductory
paragraph and shall otherwise be given in accordance with the provisions of the
Credit Agreement.
22. Collateral Agent/Administration. The Lenders have authorized Mortgagee
to act as Agent as attorney in fact for the Lenders in order to represent and
act on behalf of the Lenders in the administration, enforcement, collection, and
foreclosure of this Mortgage and the Lender Agreements, with the specific right
and authority to execute releases, discharges, partial releases, joinders, and
consents hereunder in the name of and on behalf of the Lenders. This power of
attorney and the authority conferred thereby shall remain in effect until
written notice to the contrary is recorded in the Registry in which this
Mortgage is recorded. No person dealing with Mortgagee shall be required to
inquire further as to the scope of said authority until and unless such notice
is recorded.
The relationship between Mortgagee in its capacity as collateral agent to
the Lenders is and shall be that of agent and principal only, and nothing
contained in this Mortgage or any of the other Lender Agreements shall be
construed to constitute a trust for or to establish any confidential or
fiduciary relationship with respect to any Lender or Mortgagor.
23. Waivers. No delay or omission of Mortgagee or of any holder of the
Note to exercise any right, power or remedy accruing upon any Event of Default
shall exhaust or impair any such right, power or remedy or shall be construed to
be a waiver of any such default, or acquiescence therein; and every right, power
and remedy given by this Mortgage to Mortgagee may be exercised from time to
time and as often as may be deemed expedient by Mortgagee. No consent or waiver,
expressed or implied, by Mortgagee to or of any Event of Default shall be deemed
or construed to be a consent or waiver to or of any other Event of Default.
Failure on the part of Mortgagee to complain of any act or failure to act
18
which constitutes an Event of Default, irrespective of how long such failure
continues, shall not constitute a waiver by Mortgagee of Mortgagee's rights
hereunder or impair any rights, powers or remedies consequent on any Event of
Default. No act or omission of Mortgagee shall preclude Mortgagee from
exercising any right, power or privilege herein granted or intended to be
granted in the event of any Event of Default then made or of any subsequent
Event of Default; nor, except as otherwise expressly provided in an instrument
or instruments executed by Mortgagee, shall the lien of this Mortgage be altered
thereby. No acceptance of partial payment or performance shall waive, affect or
diminish any right of Mortgagee or Mortgagor's duty of compliance and
performance therewith. Any Secured Obligation which this Mortgage secures is a
separate instrument and may be negotiated, extended or renewed by Mortgagee
without releasing Mortgagor or any Borrower. In the event of the sale or
transfer by operation of law or otherwise of all or any part of the Property,
Mortgagee, without notice, is hereby authorized and empowered to deal with any
such vendee or transferee with reference to the Property or the Secured
Obligations or with reference to any of the terms, covenants, conditions or
agreements hereof, as fully and to the same extent as it might deal with the
original parties hereto and without in any way releasing or discharging any
liabilities, obligations or undertakings.
24. Time of the Essence. Time is of the essence with respect to each and
every covenant, agreement and obligation of Mortgagor under this Mortgage, the
Note, the Credit Agreement and any and all other Lender Agreements.
25. Indemnification; Subrogation; Waiver of Offset.
(a) Mortgagor shall indemnify, defend and hold Mortgagee harmless
against: (i) any and all claims for brokerage, leasing, finders or similar
fees which may be made relating to the Property or the Secured
Obligations, and (ii) any and all liability, obligations, losses, damages,
penalties, claims, actions, suits, costs and expenses (including
Mortgagee's reasonable attorneys' fees, together with reasonable appellate
counsel fees, if any) of whatever kind or nature which may be asserted
against, imposed on or incurred by Mortgagee in connection with this
Mortgage, the Property, or any part thereof, or the exercise by Mortgagee
of any rights or remedies granted to it under this Mortgage; provided,
however, that nothing herein shall be construed to obligate Mortgagor to
indemnify, defend and hold harmless Mortgagee from and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions,
suits, costs and expenses enacted against, imposed on or incurred by
Mortgagee by reason of Mortgagee's willful misconduct or gross negligence.
(b) If Mortgagee is made a party defendant to any litigation or any
claim is threatened or brought against Mortgagee concerning the Secured
Obligations, this Mortgage, the Property, or any part thereof, or any
interest therein, or the maintenance, operation or occupancy or use
thereof, then Mortgagor shall indemnify,
19
defend and hold Mortgagee harmless from and against all liability by
reason of said litigation or claims, including reasonable attorneys' fees
(together with reasonable appellate counsel fees, if any) and expenses
incurred by Mortgagee in any such litigation or claim, whether or not any
such litigation or claim is prosecuted to judgment excepting claims
arising from the willful misconduct or gross negligence of Mortgagee. If
Mortgagee commences an action against Mortgagor to enforce any of the
terms hereof or to prosecute any breach by Mortgagor of any of the terms
hereof or to recover any sum secured hereby, Mortgagor shall pay to
Mortgagee its reasonable attorneys' fees (together with reasonable
appellate counsel, fees, if any) and expenses. The right to such
attorneys' fees (together with reasonable appellate counsel fees, if any)
and expenses shall be deemed to have accrued on the commencement of such
action, and shall be enforceable whether or not such action is prosecuted
to judgment. If Mortgagor breaches any term of this Mortgage, Mortgagee
may engage the services of an attorney or attorneys to protect its rights
hereunder, and in the event of such engagement following any breach by
Mortgagor, Mortgagor shall pay Mortgagee reasonable attorneys' fees
(together with reasonable appellate counsel fees, if any) and expenses
incurred by Mortgagee, whether or not an action is actually commenced
against Mortgagor by reason of such breach. All references to "attorneys"
in this Subsection and elsewhere in this Mortgage shall include without
limitation any attorney or law firm engaged by Mortgagee and Mortgagee's
in-house counsel, and all references to "fees and expenses" in this
Subsection and elsewhere in this Mortgage shall include without limitation
any fees of such attorney or law firm and any allocation charges and
allocation costs of Mortgagee's in-house counsel.
(c) All sums payable by Mortgagor hereunder shall be paid without
notice (except as may otherwise be provided herein or in the Credit
Agreement), demand, counterclaim, setoff, deduction or defense and without
abatement, suspension, deferment, diminution or reduction, and the
obligations and liabilities of Mortgagor hereunder shall in no way be
released, discharged or otherwise affected by reason of: (i) any damage to
or destruction of or any condemnation or similar taking of the Property or
any part thereof; (ii) any restriction or prevention of or interference
with any use of the Property or any part thereof; (iii) any title defect
or encumbrance or any eviction from the Land or the Improvements on the
Land or any part thereof by title paramount or otherwise; (iv) any
bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation, or other like proceeding relating to Mortgagee,
or any action taken with respect to this Mortgage by any trustee or
receiver of Mortgagee, or by any court, in such proceeding; (v) any claim
which Mortgagor has, or might have, against Mortgagee; (vi) any default or
failure on the part of Mortgagee to perform or comply with any of the
terms hereof or of any other agreement with Mortgagor; or (vii) any other
occurrence whatsoever, whether similar or dissimilar to the foregoing,
whether or not Mortgagor shall have notice or
20
knowledge of any of the foregoing. Mortgagor waives all rights now or
hereafter conferred by statute or otherwise to any abatement, suspension,
deferment, diminution, or reduction of any sum secured hereby and payable
by Mortgagor.
26. Future Advances by Mortgagee. Mortgagee may from time to time, at its
sole option, make further advances to Mortgagor and/or any other Borrower, or
any one or more of them to be secured hereby; provided, however, that the total
principal secured hereby and remaining unpaid, including any such advances,
shall not at any time exceed the sum of ONE HUNDRED MILLION DOLLARS
($100,000,000.00). Mortgagor and/or such other Borrower shall execute and
deliver to Mortgagee a note or other agreement evidencing each and every such
further advance which Mortgagee may make, which note or agreement shall contain
such terms and conditions as Mortgagee may require. Mortgagor and/or such other
Borrower shall pay when due all such further advances with interest and other
charges thereon, as applicable, and the same, and each note and agreement
evidencing the same, shall be fully secured hereby. All provisions of this
Mortgage shall apply to each such further advance as well as to any other
indebtedness secured hereby. Nothing herein contained, however, shall limit the
amount secured by this Mortgage if such amount is increased by advances make by
Mortgagee to protect or preserve the Property as provided elsewhere herein. Any
future advances made hereunder may be made to Mortgagor or to any successor to
Mortgagor in ownership of the Property and/or to any other Borrower.
21
IN WITNESS WHEREOF, the said authorized officer of Sugarloaf Mountain
Corporation has signed this Mortgage as of the date first set forth above.
SIGNED, SEALED & DELIVERED
in the presence of: SUGARLOAF MOUNTAIN
CORPORATION
/s/ [Illegible] By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------- -------------------------------
Witness Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:
STATE OF MAINE
Cumberland, ss August 27, 1996
Then personally appeared the within named ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, as
Treasurer of Sugarloaf Mountain Corporation, and acknowledged the above
instrument to be his free act and deed and the free act and deed of said
corporation.
Before me,
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------------
Maine Attorney
Print Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
22