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MORTGAGE AND REALTY TRUST
$110,000,000
11-1/8% SENIOR SECURED NOTES DUE 2002
_________________________________
___________
AMENDED AND RESTATED INDENTURE
Dated as of September 29, 1995
___________
___________
WILMINGTON TRUST COMPANY
___________
as Trustee
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CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06
(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06,10.03
(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06,12.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4.09,12.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.02,12.02
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.04
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.04
(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03,10.04
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.05,12.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.01
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.01
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.11
316(a)(last sentence). . . . . . . . . . . . . . . . . . . . . . . . . . . .2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.04
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.07
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.13
317(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.08
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.A.
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
N.A. means not applicable.
* This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE. . . . . . . . 1
SECTION 1.01. DEFINITIONS . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. OTHER DEFINITIONS . . . . . . . . . . . . . . . . . 13
"Standing Instruction" 3.09
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST
INDENTURE ACT . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.04. RULES OF CONSTRUCTION . . . . . . . . . . . . . . . 14
ARTICLE 2
THE NOTES. . . . . . . . . . . . . . . . 14
SECTION 2.01. FORM AND DATING . . . . . . . . . . . . . . . . . . 14
SECTION 2.02. EXECUTION AND AUTHENTICATION. . . . . . . . . . . . 14
SECTION 2.03. REGISTRAR AND PAYING AGENT. . . . . . . . . . . . . 15
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST . . . . . . . . 15
SECTION 2.05. LISTS OF HOLDERS OF THE NOTES . . . . . . . . . . . 16
SECTION 2.06. TRANSFER AND EXCHANGE . . . . . . . . . . . . . . . 16
SECTION 2.07. REPLACEMENT NOTES . . . . . . . . . . . . . . . . . 17
SECTION 2.08. OUTSTANDING NOTES . . . . . . . . . . . . . . . . . 17
SECTION 2.09. TREASURY NOTES. . . . . . . . . . . . . . . . . . . 18
SECTION 2.10. TEMPORARY NOTES . . . . . . . . . . . . . . . . . . 18
SECTION 2.11. CANCELLATION. . . . . . . . . . . . . . . . . . . . 18
SECTION 2.12. DEFAULTED INTEREST. . . . . . . . . . . . . . . . . 19
SECTION 2.13. RECORD DATE . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.14. CUSIP NUMBER. . . . . . . . . . . . . . . . . . . . 19
ARTICLE 3
REDEMPTION. . . . . . . . . . . . . . . . 19
SECTION 3.01. NOTICES TO TRUSTEE. . . . . . . . . . . . . . . . . 19
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED . . . . . . . . . 20
SECTION 3.03. NOTICE OF REDEMPTION. . . . . . . . . . . . . . . . 20
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. . . . . . . . . . . 21
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE . . . . . . . . . . . . 21
SECTION 3.06. NOTES REDEEMED IN PART. . . . . . . . . . . . . . . 22
SECTION 3.07. OPTIONAL REDEMPTION . . . . . . . . . . . . . . . . 22
SECTION 3.08. MANDATORY REDEMPTION. . . . . . . . . . . . . . . . 22
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF
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Page
ASSET SALE PROCEEDS. . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 4
COVENANTS. . . . . . . . . . . . . . . . 25
SECTION 4.01. PAYMENT OF PRINCIPAL AND INTEREST . . . . . . . . . 25
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY . . . . . . . . . . 25
SECTION 4.03. OFFICERS' AND ACCOUNTANTS' CERTIFICATES
AS TO COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 4.04. CONDUCT OF BUSINESS . . . . . . . . . . . . . . . . 26
SECTION 4.05. PAYMENT OF TAXES, ETC.. . . . . . . . . . . . . . . 26
SECTION 4.06. MAINTENANCE OF INSURANCE. . . . . . . . . . . . . . 27
SECTION 4.07. PRESERVATION OF EXISTENCE, ETC. . . . . . . . . . . 27
SECTION 4.08. MAINTENANCE OF PROPERTIES, ETC. . . . . . . . . . . 27
SECTION 4.09. FINANCIAL STATEMENTS. . . . . . . . . . . . . . . . 27
SECTION 4.10. NEW REAL ESTATE, ETC. . . . . . . . . . . . . . . . 29
SECTION 4.11. DEPOSIT OF ASSET SALE PROCEEDS. . . . . . . . . . . 29
SECTION 4.12. LIMITATION ON INVESTMENTS . . . . . . . . . . . . . 30
SECTION 4.13. LIENS, ETC. . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.14. INDEBTEDNESS. . . . . . . . . . . . . . . . . . . . 32
SECTION 4.15. LEASE OBLIGATIONS . . . . . . . . . . . . . . . . . 33
SECTION 4.16. RESTRICTED PAYMENTS . . . . . . . . . . . . . . . . 33
SECTION 4.17. TRANSACTIONS WITH AFFILIATES. . . . . . . . . . . . 34
SECTION 4.18. NEW SUBSIDIARIES. . . . . . . . . . . . . . . . . . 34
SECTION 4.19. OFFER TO REPURCHASE UPON CHANGE OF CONTROL. . . . . 35
ARTICLE 5
SUCCESSORS. . . . . . . . . . . . . . . . 36
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS. . . . . . 36
SECTION 5.02. SUCCESSOR ENTITY SUBSTITUTED. . . . . . . . . . . . 37
ARTICLE 6
DEFAULTS AND REMEDIES. . . . . . . . . . . . . 37
SECTION 6.01. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . 37
ii
Page
SECTION 6.02. ACCELERATION. . . . . . . . . . . . . . . . . . . . 39
SECTION 6.03. OTHER REMEDIES. . . . . . . . . . . . . . . . . . . 39
SECTION 6.04. WAIVER OF PAST DEFAULTS . . . . . . . . . . . . . . 39
SECTION 6.05. DIRECTION BY REQUIRED HOLDERS . . . . . . . . . . . 40
SECTION 6.06. LIMITATION ON SUITS . . . . . . . . . . . . . . . . 40
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT . . . 41
SECTION 6.08. COLLECTION SUIT . . . . . . . . . . . . . . . . . . 41
SECTION 6.09. PROOFS OF CLAIM . . . . . . . . . . . . . . . . . . 41
SECTION 6.10. PRIORITIES. . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.11. UNDERTAKING FOR COSTS . . . . . . . . . . . . . . . 42
ARTICLE 7
TRUSTEE . . . . . . . . . . . . . . . . 43
SECTION 7.01. DUTIES OF TRUSTEE . . . . . . . . . . . . . . . . . 43
SECTION 7.02. RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . 44
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. . . . . . . . . . . . 45
SECTION 7.04. DISCLAIMER. . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.05. NOTICE OF DEFAULTS. . . . . . . . . . . . . . . . . 46
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES. . . . . 46
SECTION 7.07. COMPENSATION AND INDEMNITY. . . . . . . . . . . . . 47
SECTION 7.08. REPLACEMENT OF TRUSTEE. . . . . . . . . . . . . . . 48
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. . . . . . . . . . 49
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION . . . . . . . . . . . 49
SECTION 7.11. PREFERENTIAL COLLECTION OF
CLAIMS AGAINST ISSUER. . . . . . . . . . . . . . . . . . . . . 49
ARTICLE 8
DEFEASANCE. . . . . . . . . . . . . . . . 50
SECTION 8.01. OPTION TO EFFECT DEFEASANCE . . . . . . . . . . . . 50
SECTION 8.02. DEFEASANCE AND DISCHARGE. . . . . . . . . . . . . . 50
SECTION 8.03. CONDITIONS TO DEFEASANCE. . . . . . . . . . . . . . 50
SECTION 8.04. DEPOSITED MONEY AND GOVERNMENTAL
SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . 52
iii
Page
SECTION 8.05. REPAYMENT TO ISSUER . . . . . . . . . . . . . . . . 52
SECTION 8.06. REINSTATEMENT . . . . . . . . . . . . . . . . . . . 53
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER . . . . . . . . . . 53
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES . . . . . . . . 53
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES. . . . . . . . . . 54
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT . . . . . . . . 55
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS . . . . . . . . . 56
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES. . . . . . . . . . 56
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.. . . . . . . . . . 56
ARTICLE 10
COLLATERAL AND SECURITY . . . . . . . . . . . . 57
SECTION 10.01. COLLATERAL DOCUMENTS . . . . . . . . . . . . . . . 57
SECTION 10.02. RECORDING AND OPINIONS . . . . . . . . . . . . . . 57
SECTION 10.03. RELEASE OF COLLATERAL. . . . . . . . . . . . . . . 58
SECTION 10.04. CERTIFICATES OF THE ISSUER . . . . . . . . . . . . 59
SECTION 10.05. AUTHORIZATION OF ACTIONS TO BE TAKEN BY
THE COLLATERAL AGENT UNDER THE COLLATERAL
DOCUMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.06. AUTHORIZATION OF RECEIPT OF FUNDS BY THE
TRUSTEE UNDER THE COLLATERAL DOCUMENTS . . . . . . . . . . . 60
SECTION 10.07. TERMINATION OF SECURITY INTEREST . . . . . . . . . 60
ARTICLE 11
GUARANTEE OF NOTES. . . . . . . . . . . . . . 60
SECTION 11.01. UNCONDITIONAL GUARANTEE. . . . . . . . . . . . . . 60
SECTION 11.02. CONTRIBUTION . . . . . . . . . . . . . . . . . . . 61
SECTION 11.03. "TRUSTEE" TO INCLUDE PAYING AGENT. . . . . . . . . 61
SECTION 11.04. RELEASE OF A GUARANTOR . . . . . . . . . . . . . . 62
SECTION 11.05. EXECUTION OF GUARANTEES. . . . . . . . . . . . . . 62
ARTICLE 12
MISCELLANEOUS. . . . . . . . . . . . . . . 62
SECTION 12.01. TRUST INDENTURE ACT CONTROLS . . . . . . . . . . . 62
iv
Page
SECTION 12.02. NOTICES. . . . . . . . . . . . . . . . . . . . . . 62
SECTION 12.03. COMMUNICATION BY HOLDERS OF NOTES WITH
OTHER HOLDERS OF NOTES . . . . . . . . . . . . . . . . . . . 64
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE
OR OPINION . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 12.06. RULES BY TRUSTEE AND AGENTS. . . . . . . . . . . . 65
SECTION 12.07. NO PERSONAL LIABILITY OF TRUSTEES,
OFFICERS, EMPLOYEES AND EQUITYHOLDERS. . . . . . . . . . . . 65
SECTION 12.08. GOVERNING LAW. . . . . . . . . . . . . . . . . . . 65
SECTION 12.09. NO ADVERSE INTERPRETATION OF OTHER
AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 12.10. SUCCESSORS . . . . . . . . . . . . . . . . . . . . 66
SECTION 12.11. SEVERABILITY . . . . . . . . . . . . . . . . . . . 66
SECTION 12.12. COUNTERPART ORIGINALS. . . . . . . . . . . . . . . 66
SECTION 12.13. TABLE OF CONTENTS, HEADINGS, ETC.. . . . . . . . . 66
SECTION 12.14. AMENDMENT AND RESTATEMENT. . . . . . . . . . . . . 66
SECTION 12.15. SATISFACTION AND DISCHARGE . . . . . . . . . . . . 66
v
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Assignment of Lease
Exhibit C Form of Collateral Assignment of Lease
Exhibit C-1 Form of Collateral Assignment of Mortgage
Exhibit D Form of Mortgage
Exhibit D-1 Form of Amendment to Mortgage
Exhibit E Form of Pledge Agreement
Exhibit F Form of Amended and Restated Collateral and Security Agreement
SCHEDULES
Schedule 1 Real Estate
vi
AMENDED AND RESTATED INDENTURE dated as of September 29, 1995 between
Mortgage and Realty Trust, a real estate investment trust formed under the laws
of Maryland (the "Issuer"), and Wilmington Trust Company, as trustee (the
"Trustee").
The Issuer and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the Issuer's
11-1/8% Senior Secured Notes due 2002 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"ADJUSTED NET ASSETS" of a Guarantor at the date of any claim for
contribution pursuant to Section 11.02 hereof means the lesser of the amount by
which (x) the fair value of the property of such Guarantor exceeds the total
amount of liabilities, including, without limitation, contingent liabilities
(after giving effect to all other fixed and contingent liabilities incurred or
assumed on such date), but excluding liabilities under the related Guarantee, of
such Guarantor at such date and (y) the present fair salable value of the assets
of such Guarantor at such date exceeds the amount that will be required to pay
the probable liability of such Guarantor on its debts (after giving effect to
all other fixed and contingent liabilities incurred or assumed on such date and
after giving effect to any collection from any other Subsidiary of the Issuer in
respect of the obligations of such Subsidiary under the related Guarantee),
excluding debt in respect of the related Guarantee, as they become absolute and
matured.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person and includes each officer, director, trustee
or general partner of such Person, and each owner of 5% or more of any class of
voting stock or interests of such Person. For purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"ASSET SALE" means any sale or other disposition, or series of
sales or other dispositions, made on or after the Effective Date by the
Issuer or any Subsidiary to any Person of any Collateral. For the purposes
hereof, any prepayment or
payment at maturity of an Underlying Promissory Note shall be deemed to be an
"Asset Sale."
"ASSET SALE ACCOUNT" means that trust account (account no. 28666-1)
maintained at Wilmington Trust Company in the name of the Collateral Agent,
under the sole dominion and control of the Collateral Agent, and administered
pursuant to the Collateral Documents.
"ASSET SALE PROCEEDS" means payments in Cash or other property
(including securities) received by the Issuer or any Subsidiary (including,
without limitation, any Cash payments received by way of deferred payment of
principal pursuant a note or receivable or otherwise, but only as and when
received) from any Asset Sale (after repayment of any Indebtedness required to
be paid by reason of such Asset Sale), in each case net of the amount of
(a) reasonable brokers' and advisors' fees and commissions actually paid other
than to an Affiliate of the Issuer, (b) all foreign, federal, state and local
taxes actually payable by the Issuer as a direct consequence of such Asset Sale,
(c) the reasonable fees and expenses attributable to such Asset Sale, to the
extent not included in clause (a) above, except to the extent paid to any
Affiliate of the Issuer, and (d) any proportionate share of the proceeds
required to be paid to any Person owning a beneficial interest in the property
or assets sold pursuant to such Asset Sale.
"ASSIGNMENTS OF LEASES" means each Assignment of Lease, in the form
attached hereto as Exhibit B made by the Issuer or a Subsidiary, executed
heretofore, concurrently herewith or hereafter in favor of the Collateral Agent
on behalf of the Trustee, the Collateral Agent and the Holders, assigning a
Lease, as the same may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced in accordance with the terms thereof.
"AVAILABLE CASH" means, as at any date of determination, all Cash and
Cash Equivalents held by the Issuer, any Subsidiary or the Trustee, including,
without limitation, Cash and Cash Equivalents held in the Asset Sale Account.
"BANKRUPTCY CODE" means the Bankruptcy Reform Act of 1978, as amended,
and as codified in title 11 of the United States Code.
"BANKRUPTCY LAW" means the Bankruptcy Code or any similar federal or
state law for the relief of debtors.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL EXPENDITURES" means, for any Person for any period, the
aggregate of all expenditures by such Person and its consolidated Subsidiaries,
except interest capitalized during construction, during such period for
property, plant or
2
equipment, including, without limitation, renewals, improvements,
replacements and capitalized repairs, that would be reflected as additions to
property, plant or equipment on a consolidated balance sheet of such Person
and its Subsidiaries prepared in accordance with GAAP and includes without
limitation payments, other than those attributable to interest, on
capitalized leases and other Indebtedness incurred to finance such property,
plant and equipment. For the purpose of this definition, the purchase price
of equipment which is acquired simultaneously with the trade-in of existing
equipment owned by such Person or any of its Subsidiaries or with insurance
proceeds shall be included in Capital Expenditures only to the extent of the
gross amount of such purchase price less the credit granted by the seller of
such equipment being traded in at such time or the amount of such proceeds,
as the case may be.
"CASH" means legal tender accepted in the United States of America for
the payment of public and private debts currently United States Dollars.
"CASH EQUIVALENTS" means, collectively, (a) securities with maturities
of 90 days or less from the date of acquisition issued or fully guaranteed or
insured by the United States government or any agency thereof, (b) certificates
of deposit, overnight bank deposits and banker acceptances of any commercial
bank (including Wilmington Trust Company) having combined capital and surplus of
at least $200,000,000, a short term deposit rating of A1/P1 or better and
organized under the laws of the United States of America having maturities of 90
days or less from the date of acquisition and (c) commercial paper with
maturities of 90 days or less having a rating of A1/P1 or better.
"CHANGE OF CONTROL" means (i) the sale of all or substantially all of
the Issuer's and the Subsidiaries' assets (taken as a whole), in one or in a
series of transactions, to any "person" or "group" (as such terms are used in or
defined in Section 13(d)(3) of the Exchange Act), (ii) an event or series of
events (whether a stock purchase, merger, consolidation or other business
combination or otherwise) by which any Person or group (other than the Holders
existing on the date hereof, including any Person becoming a Holder prior to the
date hereof and who is a Holder on the date hereof) is or becomes the
"Beneficial Owner" (as defined under Rule 13d-3 under the Exchange Act) directly
or indirectly of more than 50% of the combined voting power of the then
outstanding securities of the Issuer ordinarily (and apart from rights accruing
after the happening of a contingency) having the right to vote in the election
of trustees or (iii) after the Issue Date, the replacement of a majority of the
Board of Trustees of the Issuer over a two-year period from the trustees who
constituted the Board of Trustees at the beginning of such period other than by
(a) trustees whose nomination for election by the equityholders of the Issuer
was approved by such Board of Trustees, (b) trustees elected by such Board of
Trustees or (c) trustees nominated or elected by trustees approved as set forth
in (a) or (b) above.
3
"COLLATERAL" means all the assets of the Issuer defined as
"Collateral" in the Collateral Documents.
"COLLATERAL AGENT" means the collective reference to Wilmington Trust
Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ or such other collateral agent as may be appointed
from time to time pursuant to the Security Agreement.
"COLLATERAL ASSIGNMENTS OF LEASES" means each Collateral Assignment of
Lease, in the form attached hereto as Exhibit C made by the Issuer or a
Subsidiary, executed heretofore, concurrently herewith or hereafter in favor of
the Collateral Agent on behalf of the Trustee, the Collateral Agent and the
Holders, assigning the related underlying assignment of lease, as the same may
hereafter be amended, modified, supplemented, extended, renewal, restated or
replaced in accordance with the terms thereof.
"COLLATERAL ASSIGNMENTS OF MORTGAGES" means each Collateral Assignment
of Mortgage or Collateral Assignment of Deed of Trust, in the form attached
hereto as Exhibit C-1, made by the Issuer or a Subsidiary, executed heretofore,
concurrently herewith or hereafter in favor of the Collateral Agent on behalf of
the Trustee, the Collateral Agent and the Holders, assigning the Underlying
Mortgages, as the same may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced in accordance with the terms thereof.
"COLLATERAL DOCUMENTS" mean the Security Agreement, the Pledge
Agreement, the Mortgages, the Assignments of Leases, the Collateral Assignments
of Mortgages and the Collateral Assignment of Leases, and, with respect to any
of the foregoing that may have been granted prior to the date hereof, amendments
or restatements of such documents, together with all related filings,
assignments, instruments, mortgages and other papers entered into or delivered
in connection with any of the foregoing, as such agreements, filings,
assignments, instruments, mortgages or papers or documents may from time to time
be amended, supplemented or otherwise modified in accordance with the terms
hereof and thereof.
"COMMON SHARES" shall mean the Common Shares of beneficial interests
in the Issuer, par value $1.00 per share, as authorized by the declaration of
trust of the Issuer.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Issuer by its President, its Executive Vice President,
a Senior Vice President, a Vice President, its Treasurer or Controller, or, if
authorized by a power of attorney executed by any of such officers, by such
other person as may be authorized in such power of attorney, and delivered to
the Trustee.
4
"CONSOLIDATED NET WORTH" means, with respect to any Person, the sum of
(i) the consolidated equity of the common equityholders of such Person and its
consolidated Subsidiaries plus (ii) the respective amounts reported on such
Person's most recent balance sheet with respect to any series of preferred
equity that by its terms is not entitled to the payment of dividends unless such
dividends may be declared and paid only out of net earnings in respect of the
year of such declaration and payment, but only to the extent of any cash
received by such Person upon issuance of such preferred equity, after
eliminating inter-company items, including appropriate deductions for any
minority interest in such Person's Subsidiaries, less (x) all write-ups (other
than write-ups of tangible assets of a going concern business made within 12
months after the acquisition of such business) subsequent to the Issue Date in
the book value of any asset owned by such Person or a consolidated Subsidiary of
such Person and (y) all unamortized debt discount and expense and unamortized
deferred charges, all of the foregoing determined in accordance with GAAP.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, or any constituent of such substance or waste, including,
without limitation, any substance regulated under any Environmental Law.
"CONTINGENT OBLIGATION" means with reference to any Person, any direct
or indirect liability, contingent or otherwise, of such Person with respect to
any Indebtedness or contractual obligation of another Person, if the purpose or
intent of such Person in incurring the Contingent Obligation is to provide
assurance to the obligee of such Indebtedness or Contractual Obligation that
such Indebtedness or contractual obligation will be paid or discharged, or that
any agreement relating thereto will be complied with, or that any holder of such
Indebtedness or contractual obligation will be protected (in whole or in part)
against loss in respect thereof.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 12.02 hereof or such other address as to which the
Trustee may give notice to the Issuer.
"CUSTODIAN" means any receiver, trustee or similar official under any
Bankruptcy Law.
"DEFAULT" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"DISCLOSURE STATEMENT" means the Disclosure Statement and Proxy
Statement-Prospectus for the Solicitation of Votes for the Prepackaged Plan of
Reorganization of the Issuer dated July 7, 1995.
5
"EFFECTIVE DATE" means the "Effective Date" as defined in the Plan.
"ENVIRONMENTAL LAWS" means all applicable federal, state and local
laws, statutes, rules, ordinances, judicial decisions, permits, licenses,
regulations and other governmental restrictions relating to pollution or the
environment (including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), including, without limitation, laws,
statutes, rules, ordinances, judicial decisions, permits, licenses, regulations
and other governmental restrictions relating to emissions, discharges, releases
or threatened releases of Hazardous Substances, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, Hazardous Substances or
wastes or the cleanup or other remediation thereof.
"ENVIRONMENTAL LIABILITIES AND COSTS" means with reference to any
Person, all liabilities, obligations, responsibilities, liabilities resulting
from Remedial Actions, losses, damages, punitive damages, consequential damages,
treble damages, costs and expenses (including, without limitation, all
reasonable fees, disbursements and expenses of counsel, expert and consulting
fees, and costs of investigation and feasibility studies), fines, penalties,
sanctions and interest incurred as a result of any claim or demand by any other
Person, whether based in contract, tort, implied or express warranty, strict
liability, criminal or civil statute, including, without limitation, any thereof
arising under any Environmental Law, permit, order or agreement with any
Governmental Authority or other Person, and which relate to any environmental,
health or safety condition, or a Release or threatened Release, and result from
the past, present or future operations of such Person.
"ENVIRONMENTAL LIEN" means any Lien in favor of any Governmental
Authority for Environmental Liabilities and Costs.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FIRST LIEN DEBT" means Indebtedness of Paseo Padre Associates, a
California limited partnership under the Imperial Bank Loan Agreement in an
aggregate principal amount at any time outstanding not to exceed $17,566,343.03
(plus interest, fees, costs and expenses).
"FISCAL QUARTER" means each of the four consecutive three-month
periods during any Fiscal Year, which begin October 1, January 1, April 1 and
July 1, respectively.
"FISCAL YEAR" means the Issuer's fiscal year ending September 30.
6
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board, or in such other statements by such other
Person as may be in general use by significant segments of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"GOVERNMENTAL SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America, to the payment of which the full
faith and credit of the United States is pledged.
"GUARANTEE" means the guarantee of each of the Guarantors set forth in
Article 11 hereof.
"GUARANTOR" means each of the Subsidiaries of the Issuer listed as
guarantors in this Indenture or any other guarantor of the Obligations under
this Indenture.
"HAZARDOUS SUBSTANCE" means any toxic or hazardous waste, pollutants,
or substances, including, without limitation, friable asbestos, PCBs above 50
p.p.m., petroleum products and byproducts regulated as hazardous waste,
substances defined or listed as: "hazardous substances" or "toxic substances"
in the Comprehensive Environmental Response, Compensation and Liability Act of
1980 ("CERCLA") as amended, 42 U.S.C. Section 9601, ET SEQ., "hazardous
materials" in the Hazardous Transportation Act, 49 U.S.C. Section 1802, ET
SEQ., "hazardous waste" in the Resource Conservation and Recovery Act,
42 U.S.C. Section 6901, ET SEQ., any chemical substance or mixture regulated
under the Toxic Substance Control Act of 1976, as amended, 15 U.S.C. Section
2601, ET SEQ., and any hazardous or toxic substance or pollutant regulated
under any other applicable federal, state or local Environmental Laws.
"HOLDER" means a Person in whose name a Note is registered.
"INDEBTEDNESS" means with reference to any Person (a) all indebtedness
of such Person for borrowed money (including, without limitation, reimbursement
and all other obligations with respect to surety bonds, letter of credit and
bankers' acceptances, whether or not matured) or for the deferred purchase price
of property or services (other than normal trade accounts payable incurred in
the ordinary course of business), (b) all obligations of such Person evidenced
by notes, bonds, debentures or similar instruments, (c) all indebtedness of such
Person created or arising under any
7
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to
repossession or sale of such property), (d) all capitalized lease obligations
of such Person, (e) all Contingent Obligations of such Person, (f) all
obligations of such Person under interest rate contracts, (g) all
indebtedness of the type referred to in clause (a), (b), (c), (d), (e) or (f)
above secured by (or for which the holder of such indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien against
property or an interest in property owned by such Person, even though such
Person has not assumed or become liable for the payment of such indebtedness,
and (h) in the case of the Issuer, the Notes.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended.
"INVESTMENT" means any advance, loan, extension of credit or capital
contribution to, or purchase of any stocks, bonds, notes, debentures or other
securities of, or interest in, any Person, any purchase of any interest in Real
Estate (other than by foreclosure, deed in lieu of foreclosure or other method
of realizing on security), any commitment or other obligation, whether
contingent or absolute, to do any of the foregoing, which commitment or other
obligation does not constitute a Contingent Obligation and any Capital
Expenditures.
"ISSUE DATE" means the date of first issuance of the Notes hereunder.
"LEASE" means each underlying lease of Real Estate.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, Los Angeles, California, Philadelphia,
Pennsylvania, Wilmington, Delaware or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
"LIENS" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement, the
interest of a lessor under a capitalized lease obligation, any financing lease
having substantially the same economic effect as any of the foregoing, the
filing, under the Uniform Commercial Code or comparable law
8
of any jurisdiction, of any financing statement naming the owner of the
assets to which such Lien relates as debtor, and any agreement to ▇▇▇▇▇ ▇
▇▇▇▇.
"MATERIAL ADVERSE CHANGE" means a material adverse change in any of
(a) the financial condition, business, performance, operations, results of
operations or the aggregate net book value of the properties of the Issuer,
(b) the legality, validity or enforceability of this Indenture, (c) the
perfection or priority of the Liens granted pursuant to this Indenture or the
Collateral Documents caused by the action or lack of action of the Issuer or any
Subsidiary, (d) the ability of the Issuer to pay any installment due under the
Notes or the Plan or to perform its obligations under this Indenture or the Plan
or the ability of the Issuer or the Subsidiaries to perform their respective
obligations under the Collateral Documents, or (e) the rights and remedies of
the Holders or the Trustee under this Indenture.
"MATERIAL ADVERSE EFFECT" means an effect that would result in a
Material Adverse Change.
"MATERIAL SUBSIDIARY" means each Subsidiary of the Issuer that, as at
any time, has at such time capital equal to more than 10% of the Consolidated
Net Worth of the Issuer.
"MORTGAGES" means each Mortgage, Security Agreement and Financing
Statement or Deed of Trust, Security Agreement and Financing Statement,
substantially in the forms attached hereto as Exhibit D, and each Amendment to
Mortgage, Security Agreement and Financing Statement or Amendment to Deed of
Trust, Security Agreement and Financing Statement, substantially in the forms
attached hereto as Exhibit D-1, in each case made by the Issuer or a Subsidiary,
executed concurrently herewith or hereafter in favor of the Collateral Agent on
behalf of the Trustee, the Collateral Agent and the Holders, encumbering the
Real Estate, as the same may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced in accordance with the terms thereof.
"NOTES" means the notes described above issued under this Indenture.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICER" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, Controller,
Secretary or any Vice-President of such Person.
9
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the
Issuer by two Officers of the Issuer, one of whom must be the President or the
Executive Vice President, and the other must be the Treasurer, an Assistant
Treasurer, the Controller, the Secretary, an Assistant Secretary, a Senior Vice
President or a Vice President of the Issuer.
"OPINION OF COUNSEL" means an opinion from legal counsel (including at
the option of the Trustee and/or the Collateral Agent, local legal counsel in
each state where the relevant Collateral is located) who is reasonably
acceptable to the Trustee and/or the Collateral Agent, as applicable.
"PERSON" means any individual, corporation, partnership, joint
venture, entity, association, joint-stock company, trust or unincorporated
organization (including any subdivision or ongoing business of any such entity
or substantially all of the assets of any such entity, subdivision or business).
"PLAN" means the Plan of Reorganization in the Chapter 11 case of the
Issuer confirmed by the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, United States Bankruptcy
Judge, in Case No. 95-31101-SB, by order entered September 22, 1995, as such
plan has been amended prior to the Effective Date.
"PLEDGE AGREEMENT" means that certain Pledge Agreement, dated as of
the date hereof, in the form attached hereto as Exhibit E, made by the Issuer,
executed concurrently herewith in favor of Wilmington Trust Company, as
collateral agent on behalf of the Trustee and the Holders, as the same may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced in accordance with the terms thereof.
"PREFERRED STOCK", as applied to the Stock of any Person, means Stock
of any class or classes (however designated) which is preferred as to the
payment of dividends, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Person, over shares of Stock of
any other class of such Person.
"REAL ESTATE" means any interest in all plots, pieces or parcels of
land owned in any capacity, whether as a joint venturer, participant, partner or
otherwise, or in which the Issuer may have a security interest, or leased as at
the date hereof or acquired or leased hereafter by the Issuer or any Subsidiary,
including, without limitation, those listed on Schedule 1 hereto and described
in the Mortgages, together with all of the buildings and other improvements now
or hereafter erected on the Real Estate, and any fixtures appurtenant thereto.
10
"REIT" means a Person satisfying the conditions of being a "real
estate investment trust" under Sections 856 through 860 of the Internal Revenue
Code and under other applicable law.
"RELEASE" means with reference to any Person, any release, spill,
emission, leaking, pumping, injection, deposit, disposal, discharge, disbursal,
leaching or migration into the indoor or outdoor environment or into or out of
any property owned by such Person, including, without limitation, the movement
of Contaminants through or in the air, soil, surface water, ground water or
property.
"REMEDIAL ACTION" means all actions required to (a) clean up, remove,
treat or in any other way address Contaminants in the indoor or outdoor
environment, (b) prevent the Release or threat of Release or minimize the
further Release of Contaminants so they do not migrate or endanger or threaten
to endanger public health or welfare or the indoor or outdoor environment, or
(c) perform pre-remedial studies and investigations and post-remedial monitoring
and care.
"REQUIRED HOLDERS" means the Holders of a majority in principal amount
of the Notes outstanding on the date of determination.
"REQUIREMENT OF LAW" means with reference to any Person, the charter
and bylaws or other organizational or governing documents or such Person
(including, with particular reference to the Issuer, a declaration of trust),
and all federal, state and local laws, rules and regulations, including, without
limitation, Environmental Laws, and all orders, judgments, decrees or other
determinations of any Governmental Authority or arbitrator, applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"RESPONSIBLE OFFICER," when used with respect to the Trustee or the
Collateral Agent, means any trust officer, financial services officer or vice
president within the Corporate Trust Division of the Trustee or the Collateral
Agent (or any successor group of the Trustee or the Collateral Agent) or any
other officer of the Trustee or the Collateral Agent customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY AGREEMENT" means that certain Amended and Restated
Collateral and Security Agreement, dated as of the date hereof, in the form
attached hereto as Exhibit F, made by the Issuer and the Subsidiaries,
executed concurrently
11
herewith or hereafter in favor of the Collateral Agent on behalf of the
Trustee, the Collateral Agent and the Holders, as the same may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced in
accordance with the terms thereof.
"STOCK" means shares of capital stock, beneficial or partnership
interests, participations or other equivalents (regardless of how designated) of
or in any Person, whether voting or non-voting.
"STOCK EQUIVALENTS" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any stock, whether or not presently convertible, exchangeable or
exercisable.
"SUBSIDIARY" means with respect to any Person, any corporation,
partnership or other business entity of which an aggregate of 50% or more of the
outstanding Stock having ordinary voting power to elect a majority of the board
of directors, managers, trustees or other controlling Persons is, at the time,
directly or indirectly, owned by such Person and/or one or more Subsidiaries of
such Person (irrespective of whether, at the time, Stock of any other class or
classes of such entity shall have or might have voting power by reason of the
happening of any contingency). Unless the context otherwise requires, as used
herein "Subsidiary" shall mean a Subsidiary of the Issuer.
"TERMINATION DATE" means that date on which all Notes are paid in full
and all amounts due and owing under this Indenture and the Plan are paid in
full.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-
77bbbb) as in effect on the date on which this Indenture is qualified under the
TIA.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"UNDERLYING LOAN DOCUMENTS" means collectively, the Underlying
Promissory Notes, the Underlying Mortgages, underlying assignments of leases and
rents and any guarantees, instruments, agreements or other documents existing on
the effective date of the Plan and executed by any Person to or for the benefit
of the Issuer or any Subsidiary in connection with any loan made by the Issuer
or any Subsidiary to or for the benefit of such Person, as the same may have
been amended, modified or supplemented.
"UNDERLYING MORTGAGES" means collectively, the mortgages or deeds of
trust granted by any Person to or for the benefit of the Issuer or any
Subsidiary securing
12
an Underlying Promissory Note or other obligation of such Person, as the same
may have been or hereafter may be amended, modified or supplemented.
"UNDERLYING PROMISSORY NOTES" means the promissory notes or other
instruments evidencing the Indebtedness of any Person to the Issuer or any
Subsidiary other than (a) promissory notes or other instruments constituting
Cash Equivalents and (b) promissory notes or other instruments evidencing
indebtedness of any Person to the Issuer or any Subsidiary in connection with
residential loans made by the Issuer or any Subsidiary to such Person for the
purpose of purchasing a condominium unit.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"Asset Sale Offer". . . . . . . . . . . . 3.09
"Change of Control Offer" . . . . . . . . 4.19
"Change of Control Payment" . . . . . . . 4.19
"Change of Control Payment Date". . . . . 4.19
"Defeasance". . . . . . . . . . . . . . . 8.02
"Event of Default". . . . . . . . . . . . 6.01
"Foreclosure Action". . . . . . . . . . . 7.02
"Funding Guarantor" . . . . . . . . . . . 11.02
"Offer Amount". . . . . . . . . . . . . . 3.09
"Offer Period". . . . . . . . . . . . . . 3.09
"Paying Agent". . . . . . . . . . . . . . 2.03
"Purchase Date" . . . . . . . . . . . . . 3.09
"Registrar" . . . . . . . . . . . . . . . 2.03
"Standing Instruction". . . . . . . . . . 3.09
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST
INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
13
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the Notes means the Issuer, any Guarantor and any
successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the TIA,
deemed by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2
THE NOTES
SECTION 2.01. FORM AND DATING.
The Notes, the notation thereon relating to the Guarantee and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A hereto, the terms of which are incorporated in and made a part of this
Indenture. The Notes may have notations, legends or endorsements approved as to
form by the Issuer and required by law, stock exchange rule, agreements to which
the Issuer is subject or usage. Each Note shall be dated the date of its
authentication. The Notes shall be issuable only in denominations of $1,000 and
integral multiples thereof.
14
SECTION 2.02. EXECUTION AND AUTHENTICATION.
An Officer of the Issuer shall sign the Notes for the Issuer by manual
or facsimile signature. One Officer of each Guarantor shall sign the Guarantee
on behalf of such Guarantor by facsimile or manual signature. The Issuer's seal
shall be reproduced on the Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that office
at the time the Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature of the Trustee shall be conclusive evidence that
the Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Issuer signed by two
Officers of the Issuer, authenticate Notes for original issue of up to the
aggregate principal amount stated in paragraph 4 of the Notes. The aggregate
principal amount of Notes outstanding at any time shall not exceed the amount
set forth herein.
The Trustee may appoint an authenticating agent acceptable to the
Issuer to authenticate Notes. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Issuer or an Affiliate of the Issuer.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Issuer shall maintain (i) an office or agency where Notes may be
presented for registration of transfer or for exchange (including any
co-registrar, the "Registrar") and (ii) an office or agency where Notes may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Notes and of their transfer and exchange. The Issuer may appoint one or
more co-registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent. The Issuer may change any Paying
Agent, Registrar or co-registrar without prior notice to any Holder of a Note.
The Issuer shall notify the Trustee and the Trustee shall notify the Holders of
the Notes of the name and address of any Agent not a party to this Indenture.
The Issuer may act as Paying Agent, Registrar or co-registrar. The Issuer shall
enter into an appropriate agency agreement with any Agent not a party to this
Indenture, which shall incorporate the provisions of the TIA. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The
Issuer shall notify the Trustee of the name and address of any such Agent. If
the Issuer fails to maintain a Registrar or Paying Agent, or fails to give the
15
foregoing notice, the Trustee shall act as such, and shall be entitled to
appropriate compensation in accordance with Section 7.07 hereof.
The Issuer initially appoints the Trustee as Registrar, Paying Agent
and agent for service of notices and demands in connection with the Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Issuer shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
the Holders of the Notes or the Trustee all money held by the Paying Agent for
the payment of principal of and interest on the Notes, and shall notify the
Trustee of any Default by the Issuer in making any such payment. While any such
Default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee and to account to the Trustee for any funds disbursed. The
Issuer at any time may require a Paying Agent to pay all money held by it to the
Trustee and to account to the Trustee for any funds disbursed. Upon payment
over to the Trustee, the Paying Agent (if other than the Issuer) shall have no
further liability for the funds disbursed to the Trustee. If the Issuer acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders of the Notes all money held by it as Paying Agent.
SECTION 2.05. LISTS OF HOLDERS OF THE NOTES.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Holders of the Notes and shall otherwise comply with TIA Section 312(a).
If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee
at least seven Business Days before each interest payment date and at such
other times as the Trustee may request in writing a list in such form and as
of such date as the Trustee may reasonably require of the names and addresses
of Holders of the Notes, including the aggregate principal amount of the
Notes held by each thereof, and the Issuer shall otherwise comply with TIA
Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
When Notes are presented to the Registrar with a request to register
the transfer or to exchange them for an equal principal amount of Notes of other
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met; PROVIDED, HOWEVER, that any Note
presented or surrendered for registration of transfer or exchange shall be duly
16
endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar and the Trustee duly executed by the Holder
thereof or by his attorney duly authorized in writing. To permit
registrations of transfer and exchanges, the Issuer shall issue and the
Trustee shall authenticate Notes at the Registrar's request, subject to such
rules as the Trustee may reasonably require.
Neither the Issuer nor the Registrar shall be required to (i) issue,
register the transfer of or exchange Notes during a period beginning at the
opening of business on a Business Day 15 days before the day of any selection of
Notes for redemption under Section 3.02 hereof or (ii) register the transfer of
or exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
No service charge shall be made to any Holder of a Note for any
registration of transfer or exchange (except as otherwise expressly permitted
herein), but the Issuer may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than such transfer tax or similar governmental charge payable upon
exchanges pursuant to Section 2.10, 3.06 or 9.05 hereof, which shall be paid by
the Issuer).
Prior to due presentment to the Trustee for registration of the
transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat
the Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of, premium, if any, and
interest on such Note and for all other purposes whatsoever, whether or not such
Note is overdue, and neither the Trustee, any Agent nor the Issuer shall be
affected by notice to the contrary.
SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the Issuer and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Note, the Issuer shall issue and the Trustee, upon the written
order of the Issuer signed by two Officers of the Issuer, shall authenticate a
replacement Note if the Trustee's requirements for replacements of Notes are
met. If required by the Trustee or the Issuer in connection with any loss,
theft or destruction of a Note, an indemnity bond must be supplied by the Holder
that is sufficient in the judgment of the Trustee and the Issuer to protect the
Issuer, the Trustee, any Agent or any authenticating agent from any loss which
any of them may suffer if a Note is replaced; PROVIDED, HOWEVER, that any
institutional Holder may satisfy such requirement for an indemnity bond by
delivering its unsecured indemnity agreement. Each of the Issuer and the
Trustee may charge for its expenses in replacing a Note.
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SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation and those described in this Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
Subject to Section 2.09 hereof, a Note does not cease to be
outstanding because the Issuer, a Subsidiary of the Issuer or an Affiliate of
the Issuer holds the Note.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Issuer, any Subsidiary or any Affiliate of the Issuer shall be considered as
though not outstanding, except that for purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes which a Responsible Officer knows to be so owned shall be so
considered. Notwithstanding the foregoing, Notes that are to be acquired by the
Issuer, any Subsidiary or an Affiliate of the Issuer pursuant to an exchange
offer, tender offer or other agreement shall not be deemed to be owned by the
Issuer, such Subsidiary or such Affiliate, until legal title to such Notes
passes to the Issuer, such Subsidiary or such Affiliate, as the case may be.
SECTION 2.10. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Issuer may prepare
and the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Issuer and the Trustee consider appropriate for temporary Notes. Without
unreasonable delay, the Issuer shall prepare and the Trustee, upon receipt of
the written order of the Issuer signed by two Officers of the Issuer, shall
authenticate definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
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SECTION 2.11. CANCELLATION.
The Issuer at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall destroy cancelled Notes
(subject to the record retention requirement of the Exchange Act), unless the
Issuer directs cancelled Notes to be returned to it. The Issuer may not issue
new Notes to replace Notes that it has redeemed or paid or that have been
delivered to the Trustee for cancellation. All cancelled Notes held by the
Trustee shall be destroyed and certification of their destruction delivered to
the Issuer, unless by a written order, signed by two Officers of the Issuer, the
Issuer shall direct that cancelled Notes be returned to it.
SECTION 2.12. DEFAULTED INTEREST.
If the Issuer defaults in a payment of interest on the Notes, it shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders of
the Notes on a subsequent special record date, which date shall be at the
earliest practicable date but in all events at least five Business Days prior to
the next payment date, in each case at the rate provided in the Notes. The
Issuer shall fix or cause to be fixed each such special record date and payment
date, and shall, promptly thereafter, notify the Trustee of any such date. At
least 15 days before the special record date, the Issuer (or the Trustee, in the
name of and at the expense of the Issuer) shall mail to Holders of the Notes a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
SECTION 2.13. RECORD DATE.
The record date for purposes of determining the identity of Holders of
the Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in TIA Section 316(c).
SECTION 2.14. CUSIP NUMBER.
The Issuer in issuing the Notes may use a "CUSIP" number and, if it
does so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; PROVIDED, HOWEVER, that any such notice
may state that no representation is made as to the correctness or accuracy of
the CUSIP number printed in the notice or on the Notes and that reliance may be
placed only on
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the other identification numbers printed on the Notes. The Issuer will
promptly notify the Trustee of any change in the CUSIP number.
ARTICLE 3
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Issuer elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 45 days but not more than 75 days before a redemption date, written
notice setting forth (i) the redemption date, (ii) the principal amount of Notes
to be redeemed and (iii) the redemption price.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed among the Holders of the Notes in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed, or, if the Notes are not so listed, on a pro rata
basis, by lot or in accordance with any other method the Trustee considers fair
and appropriate (and in such manner as complies with applicable legal and stock
exchange requirements, if any), provided that no Notes of $1,000 or less shall
be redeemed in part. In the event of partial redemption by lot, the particular
Notes to be redeemed shall be selected, unless otherwise provided herein, not
less than 30 nor more than 60 days prior to the redemption date by the Trustee
from the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Issuer in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
them selected shall be in amounts of $1,000 or whole multiples of $1,000; except
that if all of the Notes of a Holder are to be redeemed, the entire outstanding
amount of Notes held by such Holder, even if not a multiple of $1,000, shall be
redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09 hereof, at least 30 days but
not more than 60 days before a redemption date, the Issuer shall mail or cause
to be
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mailed, by first class mail, a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion shall be issued;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Issuer defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date;
(g) the aggregate principal amount of the Notes that are being
redeemed; and
(h) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Issuer's written request, the Trustee shall give the notice of
redemption in the Issuer's name and at its expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become due and payable on the redemption
date at the redemption price.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to one Business Day before any redemption date, the Issuer
shall deposit with the Trustee or with the Paying Agent money sufficient to
pay the
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redemption price of and accrued interest on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Issuer
any money deposited with the Trustee or the Paying Agent by the Issuer in
excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Notes to be redeemed.
On and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid on such
interest payment date to the Person in whose name such Note was registered at
the close of business on such record date. If any Note called for redemption
shall not be so paid upon surrender for redemption, because of the failure of
the Issuer to comply with the preceding paragraph, interest shall be paid on the
unpaid principal, from the redemption date until such principal is paid, and to
the extent lawful on any interest not paid on such unpaid principal, in each
case at the rate provided in the Notes.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Issuer shall
issue and upon written order of the Issuer the Trustee shall authenticate for
the Holder of the Notes at the expense of the Issuer a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
The Issuer shall have the option to redeem the Notes, in whole or in
part, upon not less than 30 nor more than 60 days' notice, at a redemption price
equal to 100% of the principal amount plus accrued and unpaid interest, if any,
thereon to the applicable redemption date.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth under Section 3.09 or Section 4.19 hereof, the
Issuer shall not be required to make mandatory redemption payments or sinking
fund payments with respect to the Notes.
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SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF
ASSET SALE PROCEEDS.
If at any time the aggregate amount of Asset Sale Proceeds and the net
cash proceeds of Indebtedness incurred pursuant to Section 4.14(i) that have not
been applied in accordance with this Section 3.09 (exclusive of any Asset Sale
Proceeds or net cash proceeds which remain after the completion of any prior
Asset Sale Offer) exceeds $10 million, the Issuer shall make an offer to all
Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal
amount of Notes that, together with accrued and unpaid interest thereon, may be
purchased with 80% of any such Asset Sale Proceeds or 100% of the net cash
proceeds of such Indebtedness, at an offer price in cash in an amount equal to
100% of the outstanding principal amount thereof plus accrued and unpaid
interest, if any, to the date fixed for the closing of such offer, in accordance
with the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later than
five Business Days after the termination of the Offer Period (the "Purchase
Date"), the Issuer shall purchase the maximum principal amount of Notes that may
be purchased with 80% of such Asset Sale Proceeds or 100% of the net cash
proceeds of such Indebtedness (the "Offer Amount"), or, if less than the Offer
Amount has been tendered, all Notes tendered in response to the Asset Sale
Offer.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued interest shall be paid to
the Person in whose name a Note is registered at the close of business on such
record date, and no additional interest shall be payable to Holders who tender
Notes pursuant to the Asset Sale Offer.
Upon the commencement of any Asset Sale Offer the Issuer shall send,
by first class mail, a notice to the Trustee and each of the Holders of the
Notes, with a copy to the Trustee. The notice shall contain all instructions
and materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The notice, which shall govern the terms of the Asset Sale
Offer shall state:
(a) that such Asset Sale Offer is being made pursuant to this Section
3.09 and the length of time such Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue
to accrue interest in accordance with its terms;
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(d) that any Note accepted for payment pursuant to such Asset Sale
Offer shall cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to such
Asset Sale Offer shall be required to surrender the Note at least three
Business Days before the Purchase Date with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Note completed, to the
Issuer, a depositary, if appointed by the Issuer, or a Paying Agent at the
address specified in the notice;
(f) that Holders shall be entitled to withdraw their election if the
Issuer, depositary or Paying Agent, as the case may be, receives, not later
than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that
such Holder is withdrawing his or her election to have the Note purchased;
(g) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, the Issuer shall select the Notes to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Issuer so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
(h) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered.
Any Holder may at any time elect to deliver to the Trustee written
instructions (each a "Standing Instruction") stating that such Holder desires to
participate in any Asset Sale Offer by tendering the maximum permitted number of
such Holder's Notes for repurchase in such Asset Sale Offer. Upon receipt of
such Standing Instruction, the Trustee shall deem the maximum permitted number
of such Holder's Notes tendered upon the commencement of any Asset Sale Offer.
The issuing Holder may withdraw such Standing Instruction at any time prior to
the expiration of an Offer Period by so notifying the Trustee in writing. Each
Holder electing not to deliver a Standing Instruction shall respond to the
notice of an Asset Sale Offer, as set forth in this Section 3.09, prior to the
termination of the Offer Period.
On or before the Purchase Date, the Issuer shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the
Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale
Offer, or, if less than the Offer Amount has been tendered, all Notes, and
deliver to the Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for
24
payment by the Issuer in accordance with the terms of this Section 3.09. The
Issuer, depositary or Paying Agent, as the case may be, shall promptly (but
in any case not later than five days after the Purchase Date) mail or deliver
(or wire, if requested by a Holder in advance) to each tendering Holder an
amount equal to the purchase price of the Note tendered by such Holder and
accepted by the Issuer for purchase, and the Issuer shall promptly issue a
new Note, and the Trustee shall authenticate and mail or deliver such new
Note to such Holder equal in principal amount to any unpurchased portion of
the Note surrendered. Any Note not so accepted shall be promptly mailed or
delivered by the Issuer to the Holder thereof. The Issuer shall publicly
announce the results of the Asset Sale Offer on the Purchase Date. In the
event that the aggregate amount of Asset Sale Proceeds or net cash proceeds
of Indebtedness incurred pursuant to Section 4.14(i) exceeds the aggregate
principal amount of Notes surrendered by Holders thereof pursuant to such
Asset Sale Offer the Issuer may use the remaining Asset Sale Proceeds or net
cash proceeds of Indebtedness in accordance with the terms of this Indenture.
If the aggregate principal amount of Notes surrendered by Holders thereof
exceeds the amount of Asset Sale Proceeds or net cash proceeds of
Indebtedness incurred pursuant to Section 4.14(i), the Trustee shall select
the Notes to be purchased on a pro rata basis. Upon completion of an Asset
Sale Offer, the amount of Asset Sale Proceeds or net cash proceeds of
Indebtedness shall be deemed to be reset at zero.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
Whenever any Asset Sale Proceeds or net cash proceeds of Indebtedness
incurred pursuant to Section 4.14(i) are received by the Issuer such Asset Sale
Proceeds or net cash proceeds of Indebtedness will be set aside in the Asset
Sale Account pending allocation of such Asset Sale Proceeds or net cash proceeds
of Indebtedness pursuant to this Section 3.09.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF PRINCIPAL AND INTEREST.
The Issuer shall pay the principal of and interest on the Notes in
accordance with the terms, and on the dates set forth in, this Indenture and the
Notes.
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SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Issuer shall maintain in the City of Philadelphia, Pennsylvania an
office or agency where Notes may be presented for registration of transfer or
exchange of Notes and where notices and demands to or upon the Issuer in respect
of the Notes and this Indenture may be served. The Issuer will give prompt
written notice to the Trustee of any change in the location of such office or
agency. If at any time the Issuer shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and, in such event, the Trustee shall act as the
Issuer's agent to receive all such presentations, notices and demands.
The Issuer may also from time to time designate one or more other
offices or agencies (in or outside the City of Philadelphia, Pennsylvania) where
the Notes may be presented for any or all such purposes and may from time to
time rescind such designations; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
an office or agency in the City of Philadelphia, Pennsylvania for the purposes
set forth in Section 2.03 and for such other purposes. The Issuer will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
SECTION 4.03. OFFICERS' AND ACCOUNTANTS' CERTIFICATES
AS TO COMPLIANCE.
To the extent not otherwise required pursuant to Section 4.09, the
Issuer shall deliver to the Trustee, within 90 days after the end of each Fiscal
Year commencing with the 1995 Fiscal Year an Officers' Certificate stating that
in the course of the performance by each signer of such signer's duties as an
Officer of the Issuer such signer would normally have knowledge of the Issuer's
and the Subsidiaries' compliance with the covenants contained in Sections 4.01
and 4.02 and 4.04 to 4.19 and the other covenants and conditions applicable to
the Issuer or any Subsidiary set forth in this Indenture, stating whether or not
such signer has knowledge of any Default in such compliance (such compliance
having been determined without regard to any period of grace or requirement of
notice provided under this Indenture) and, if so, specifying each such Default
of which such signer has knowledge and the nature thereof and what action the
Issuer proposes to take in connection thereto. For purposes of this Section
4.03, one of the signatories of such Officers' Certificate shall be one of the
principal executive officer, the principal financial officer or the principal
accounting officer of the Issuer.
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The Issuer will also deliver to the Trustee the certificates of
accountants required pursuant to Section 4.09.
SECTION 4.04. CONDUCT OF BUSINESS.
Subject to the terms and conditions hereof the Issuer and each
Subsidiary shall (a) conduct its business in a manner consistent with the terms
and provisions of the Plan and this Indenture; (b) use its reasonable efforts,
in the ordinary course and consistent with past practice, to (i) preserve its
business and the goodwill and (ii) keep available the services and goodwill of
its present employees; and (c) preserve all registered patents, trademarks,
trade names, copyrights and service marks with respect to its business.
SECTION 4.05. PAYMENT OF TAXES, ETC.
(a) The Issuer and each Subsidiary shall pay and discharge before the
same shall become delinquent, all lawful claims, taxes, assessments and
governmental charges or levies, except where contested in good faith, by proper
proceedings, and where adequate reserves therefor have been established on the
books of the Issuer or such Subsidiary in conformity with GAAP.
(b) In connection with this Indenture, the Issuer and each Subsidiary
shall comply with all withholding and reporting requirements imposed by federal,
state and local tax authorities and all distributions under this Indenture shall
be subject to such withholding and reporting requirements.
SECTION 4.06. MAINTENANCE OF INSURANCE.
The Issuer and each Subsidiary shall maintain insurance with
responsible and reputable insurance companies or associations in such amounts
and covering such risks as is usually and customarily carried by companies
engaged in similar businesses and owning similar properties in the same general
areas in which the Issuer or such Subsidiary operates; PROVIDED, HOWEVER, that
the Issuer or such Subsidiary shall not be required to maintain earthquake
insurance. If requested by the Required Holders or the Trustee, the Issuer or
such Subsidiary shall have all such insurance policies name the Collateral Agent
as additional insured or loss payee. The Issuer or such Subsidiary will furnish
to the Trustee or the Collateral Agent from time to time such information as may
be reasonably requested as to such insurance by the Trustee or the Collateral
Agent.
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SECTION 4.07. PRESERVATION OF EXISTENCE, ETC.
The Issuer and each Subsidiary shall preserve and maintain its
existence, rights and franchises, except as permitted under Article 5, if the
failure to so preserve or maintain, either individually or in the aggregate,
would cause a Material Adverse Effect.
SECTION 4.08. MAINTENANCE OF PROPERTIES, ETC.
The Issuer and each Subsidiary shall maintain and preserve (i) in good
working order and condition all of its properties which are used or useful or
necessary in the conduct of its business, and (ii) all rights, remedies,
permits, licenses, guaranties, collateral, insurance, approvals and privileges
which are used or useful or necessary in the conduct of its business, if the
failure to maintain and preserve such rights, remedies, permits, licenses,
guaranties, collateral, insurance, approvals and privileges, either individually
or in the aggregate, would cause a Material Adverse Effect.
SECTION 4.09. FINANCIAL STATEMENTS.
To the extent not otherwise required by Section 4.03, the Issuer shall
furnish to the Holders and the Trustee in the case of clauses (a) through (c)
below, and to any prospective purchaser of the Notes in the case of clause (d)
below:
(a) as soon as available and in any event within 45 days after the
end of each of the first three Fiscal Quarters in each Fiscal Year, a
consolidated income statement, a consolidated statement of shareholders' equity,
a consolidated statement of cash flows, a consolidated statement of deferred and
capitalized interest for the period from the beginning of the current Fiscal
Year to the end of such Fiscal Quarter, and a consolidated balance sheet as at
the end of such Fiscal Quarter, setting forth in each case in comparative form
figures for the corresponding period in the preceding Fiscal Year, certified by
the chief financial officer of the Issuer, together with (i) a certificate of
said officer stating that no Default or Event of Default has occurred and is
continuing or, if a Default or an Event of Default has occurred and is
continuing, a statement as to the nature thereof and the action which the Issuer
proposes to take with respect thereto, (ii) a schedule of the computations used
by the Issuer in determining compliance with Section 4.12, (iii) a written
discussion and analysis by the management of the Issuer of the consolidated
financial statements furnished in respect of such Fiscal Quarter, and (iv) a
certificate demonstrating the calculation of Available Cash, including, without
limitation, the minimum dividend distribution required to maintain the status of
the Issuer as a REIT;
28
(b) as soon as available and in any event within 90 days after the
end of each Fiscal Year, a consolidated balance sheet of the Issuer as of the
end of such year and a consolidated statement of income, retained earnings and
cash flows of the Issuer and its Subsidiaries all of which are prepared in
accordance with GAAP and certified without qualifications as to the scope of the
audit or otherwise and without any disclaimer by Ernst & Young or other
independent certified public accountants of recognized national standing
acceptable to the Trustee, together with (i) a certificate of such accounting
firm stating that in the course of the regular audit of the business of the
Issuer and the Subsidiaries, which audit was conducted by such accounting firm
in accordance with generally accepted auditing standards, such accounting firm
has obtained no knowledge that a Default or Event of Default has occurred and is
continuing, or, if in the opinion of such accounting firm a Default or Event of
Default has occurred and is continuing, a statement as to the nature thereof,
(ii) a schedule in form satisfactory to the Trustee of the computations used by
such accounting firm in determining, as of the end of such Fiscal Year, the
Issuer's compliance with Section 4.12, (iii) a certificate of the chief
financial officer stating deferred and capitalized interest for the Fiscal Year
and an "Agreed Upon Procedures" report by the Issuer's independent public
accounting firm stating that such accounting firm has no knowledge of any
material error in the information set forth in the certificate, and (iv) a
written discussion and analysis by the management of the Issuer of the
consolidated financial statements furnished in respect of such Fiscal Year;
(c) as soon as available and, in any event, within 120 days from and
after the end of a Fiscal Year, a copy of the management letter required to be
provided to the Issuer by its independent certified public accountants which
refers in whole or in part to any inadequacy, defect, problem, qualification or
other lack of fully satisfactory accounting controls utilized by the Issuer; and
(d) upon the request of the Required Holders, to any prospective
purchaser of any Notes, all information that may be required to be delivered to
such purchaser to enable any Holder to sell to such purchaser its Notes without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144A under the Securities Act, as such Rule may be amended
from time to time, or (b) any similar rule or regulation hereafter adopted by
the SEC subject to receipt of an appropriate confidentiality agreement from such
prospective purchasers in form and substance reasonably satisfactory to the
Issuer (with appropriate exceptions to permit resale); PROVIDED, HOWEVER, upon
the request of the Required Holders, the Issuer shall deliver to the Required
Holders a written statement as to whether it has complied with such
requirements.
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SECTION 4.10. NEW REAL ESTATE, ETC.
If the Issuer or any Subsidiary acquires any Real Estate, Underlying
Promissory Notes, Underlying Mortgages or underlying leases through foreclosure
or otherwise, not subject to a Lien in favor of the Trustee or the Collateral
Agent, the Issuer or such Subsidiary shall, as a condition to the effectiveness
of any such acquisition, execute, deliver and record a first priority or the
next highest available priority Mortgage or equivalent security instrument, in
favor of the Collateral Agent on behalf and for the ratable benefit of the
Holders, covering such Real Estate, Underlying Promissory Notes, Underlying
Mortgages or underlying leases, in form and substance satisfactory to the
Trustee and the Collateral Agent, and provide the Collateral Agent with
financing statements, and, upon the acquisition of Real Estate or an Underlying
Mortgage, a title insurance policy in an amount equal to the acquisition price
of such Real Estate or Underlying Mortgage insuring (a) the Issuer's or such
Subsidiary's fee title to such Real Estate and including a current ALTA survey
thereof, if required, with a surveyor's certificate in form and substance
satisfactory to the Trustee and the Collateral Agent or (b) the enforceability
and validity of such Underlying Mortgage according to the terms and conditions
of an ALTA Lender's policy. Notwithstanding the foregoing, prior to the
acquisition or obtaining control of any Real Estate, the Issuer or such
Subsidiary shall obtain an appropriate environmental audit or environmental
survey.
SECTION 4.11. DEPOSIT OF ASSET SALE PROCEEDS.
All Cash Asset Sale Proceeds shall be deposited in the Asset Sales
Account immediately upon receipt by the Issuer or any Subsidiary or their
agent. All non-Cash Asset Sale Proceeds shall be delivered immediately to the
Collateral Agent upon receipt by the Issuer or any Subsidiary or their agent and
shall be pledged to the Collateral Agent for the ratable benefit of the Holders
to secure the Obligations of the Issuer under this Indenture and the Notes
pursuant to a pledge agreement in form and substance satisfactory to the
Trustee. When the aggregate amount of Asset Sale Proceeds exceeds $10 million,
the Issuer will be required to apply all such Asset Sale Proceeds to an Asset
Sale Offer in accordance with the procedures set forth in Section 3.09 hereof.
The Cash Asset Sale Proceeds shall be distributed to the Holders in accordance
with Section 3.09. Any Cash Asset Sale Proceeds not so distributed to Holders
shall be returned to the Issuer.
SECTION 4.12. LIMITATION ON INVESTMENTS.
The Issuer shall not, nor shall it permit any Subsidiary to, directly
or indirectly, make any Investment from and after the Effective Date except:
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(a) Investments which constitute leasing commissions and tenant
improvements, related to the ownership and maintenance of a parcel or parcels of
Real Estate in an amount not to exceed by more than 10% the amount of such
commissions or improvements set forth in a budget approved by the Board of
Trustees of the Issuer (as the same may be amended from time to time with the
consent of the Board of Trustees of the Issuer);
(b) with any Asset Sale Proceeds that are not applied to the then
outstanding Notes in accordance with Section 3.09 hereof, new loans to non-
Affiliates or new equity Investments, in each case approved by the Board of
Trustees;
(c) Investments approved by the Board of Trustees of the Issuer of
Available Cash in Cash Equivalents;
(d) Investments approved by the Board of Trustees of the Issuer
created by the Issuer or any Subsidiary as a result of any sale, refinancing or
disposition of assets when the Issuer or such Subsidiary accepts in partial
payment of an outstanding obligation a new mortgage or equity interest in the
same property; and
(e) Investments approved by the Board of Trustees of the Issuer in
Subsidiaries formed or maintained pursuant to Section 4.18; PROVIDED, HOWEVER,
that the Stock of any such new Subsidiary is pledged to the Collateral Agent for
the ratable benefit of the Holders in accordance with Section 4.18.
SECTION 4.13. LIENS, ETC.
The Issuer shall not, nor shall it permit any Subsidiary to, create or
suffer to exist any Lien upon or with respect to any of its properties, whether
owned by the Issuer or such Subsidiary as at the Effective Date or thereafter
acquired, or assign any right to receive income, except:
(a) Liens directly or indirectly created in favor of the Holders
pursuant to this Indenture, the Plan and the Collateral Documents;
(b) any Lien securing the renewal, extension or refunding of any
Indebtedness or other obligation secured by any Lien permitted by subsection (a)
of this Section 4.13 without any increase in the amount secured thereby or in
the assets subject to such Liens;
(c) Liens arising by operation of law in favor of materialmen,
mechanics, warehousemen, carriers, lessors or other similar Persons incurred by
the Issuer or such Subsidiary in the ordinary course of business which secure
its obligations to such Person; PROVIDED, HOWEVER, that the Issuer or such
Subsidiary
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(i) is not in default in respect of such payment obligation to such Person or
(ii) is in default with respect to such payment obligation but is, in good
faith and by appropriate proceedings, diligently contesting such obligation
and adequate provision is made for the payment thereof and such default,
either individually or in the aggregate, would not cause a Material Adverse
Effect;
(d) Liens (excluding Environmental Liens) securing taxes,
assessments or governmental charges or levies; PROVIDED, HOWEVER, that the
Issuer or such Subsidiary (i) is not in default in respect of any payment
obligation with respect thereto or (ii) is in default in respect of such payment
obligation but is in good faith and by appropriate proceedings diligently
contesting such obligation and adequate provision is made for the payment
thereof and such default, either individually or in the aggregate, would not
cause a Material Adverse Effect;
(e) Liens incurred or pledges and deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance, old-age pensions and other social security benefits;
(f) Liens securing the performance of operating leases,
contracts (other than for the repayment of borrowed money), statutory
obligations, and other obligations of like nature, incurred as an incident to
and in the ordinary course of business, and judgment liens which do not cause
individually or in the aggregate, a Material Adverse Effect, and do not
constitute a Default or an Event of Default;
(g) zoning restrictions, easements, licenses, reservations,
restrictions on the use of real property or minor irregularities incident
thereto which do not cause, individually or in the aggregate, a Material Adverse
Effect;
(h) Liens in favor of landlords securing operating leases
permitted by Section 4.15;
(i) Liens existing on the Effective Date;
(j) Environmental Liens which do not cause, individually or in
the aggregate, a Material Adverse Effect;
(k) Liens relating to Indebtedness incurred to finance the
purchase price of property but only to the extent (x) of the value of the
property acquired and (y) such Lien does not extend to or cover any other
property other than such property, improvements thereon and any proceeds
therefrom; and
(l) Liens securing Indebtedness permitted by Section 4.14(i).
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SECTION 4.14. INDEBTEDNESS.
The Issuer shall not, directly or indirectly, and will not, directly or
indirectly, permit any Subsidiary to, incur, create, assume or suffer to exist
any Indebtedness, except:
(a) Indebtedness represented by the Notes;
(b) Contingent Obligations constituting endorsements for
collection or deposit in the ordinary course of business;
(c) current liabilities in respect of taxes, assessments and
governmental charges or levies incurred, or claims for labor, materials,
inventory, services, supplies and rentals incurred, or for goods or services
purchased, in the ordinary course of business consistent with the past practice
of the Issuer or such Subsidiary;
(d) Indebtedness arising under any performance bond
reimbursement obligation entered into in the ordinary course of business of the
Issuer or such Subsidiary consistent with the past practice of the Issuer or
such Subsidiary;
(e) unimpaired indemnification claims under the declaration of
trust of the Issuer;
(f) Indebtedness arising in connection with Subsidiaries formed
or maintained pursuant to Section 4.18;
(g) the First Lien Debt;
(h) Indebtedness incurred to finance the purchase price of
property; PROVIDED, HOWEVER, that such Indebtedness shall be non-recourse to the
Issuer or such Subsidiary; and
(i) additional secured Indebtedness of the Issuer; PROVIDED,
HOWEVER, that (i) 100% of the net cash proceeds of such Indebtedness, after
deducting all expenses related thereto, shall be applied to the repayment of the
Notes in accordance with Section 3.09, and (ii) the interest rate payable in
respect of such Indebtedness shall be lower than the interest rate then payable
in respect of the Notes; and, PROVIDED, FURTHER, that if such interest rate is
not a fixed rate of interest, the Issuer shall have entered into an interest
rate agreement or other contractual arrangement concurrently with the incurrence
of such Indebtedness the economic effect of which shall be that such floating
interest rate over the life of such Indebtedness shall be lower than the
interest rate then payable in respect of the Notes.
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SECTION 4.15. LEASE OBLIGATIONS.
(a) The Issuer shall not, nor shall it permit any Subsidiary to,
create or suffer to exist any obligations as lessee (i) for the rental or hire
of real or personal property in connection with any sale and leaseback
transaction, or (ii) for the rental or hire of real or personal property of any
kind under other leases or agreements to lease having an original term of one
year or more which would cause the direct or contingent liabilities of the
Issuer or such Subsidiary in respect of all such obligations to be increased by
more than $100,000 payable in any period of 12 consecutive months over the
amount existing on the Effective Date.
(b) The Issuer shall not, nor shall it permit any Subsidiary to,
become or remain liable as lessee or guarantor or other surety with respect to
any lease, whether an operating lease or a capitalized lease, of any property
(whether real or personal or mixed), whether owned as at the Effective Date or
acquired thereafter, which the Issuer or such Subsidiary has sold or transferred
as of the Effective Date or thereafter.
SECTION 4.16. RESTRICTED PAYMENTS.
The Issuer shall not (a) declare or make any dividend payment or other
distribution of assets, properties, Cash, rights, obligations or securities on
account of or in respect of any of its Common Shares or any Preferred Stock
which may be issued by the Issuer, other than such declaration and making of
dividend payments that the Issuer deems necessary to preserve its status as a
REIT, unless the Consolidated Net Worth of the Issuer at the time of such
payment and after giving effect thereto is at least $50 million; PROVIDED,
HOWEVER, that the Issuer shall in no event declare or make any such dividend
payment or other distribution if a Default or Event of Default has occurred and
is continuing, or (b) purchase, redeem or otherwise acquire for value its Common
Shares or any Preferred Stock of the Issuer, whether outstanding on the
Effective Date or thereafter issued and outstanding, unless the Consolidated Net
Worth of the Issuer at the time of such purchase, redemption or other
acquisition and after giving effect thereto is at least $50 million; PROVIDED,
HOWEVER, that the Issuer shall in no event make any such purchase, redemption or
other acquisition if a Default or Event of Default has occurred and is
continuing.
SECTION 4.17. TRANSACTIONS WITH AFFILIATES.
The Issuer shall not, nor shall it permit any Subsidiary to: (a) make
any Investment in an Affiliate; (b) transfer, sell, lease, assign or otherwise
dispose of any assets to any such Affiliate; (c) merge into or consolidate with
or purchase or acquire assets from any Affiliate; (d) repay any Indebtedness to
any Affiliate (except
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under existing retirement or deferred compensation plans); or (e) enter into
any other transaction directly or indirectly with or for the benefit of any
such Affiliate (including, without limitation, guaranties and assumptions of
obligations of any such Affiliate) except for (i) transactions in the
ordinary course of business on a basis no less favorable to the Issuer or
such Subsidiary as would be obtained in a comparable arm's length transaction
with a Person which is not an Affiliate, (ii) compensation to trustees
commensurate with current compensation levels, (iii) salaries and other
employee compensation and benefits to officers of the Issuer or such
Subsidiary commensurate with the compensation levels in effect as of the date
hereof as may reasonably be adjusted over time but in no event to exceed 10%
annually in the aggregate, (iv) any transaction required or otherwise
permitted by the Plan or this Indenture, and (v) transactions with respect to
Subsidiaries pursuant to Section 4.12, 4.14 or 4.18 hereof.
SECTION 4.18. NEW SUBSIDIARIES.
The Issuer shall not incorporate or otherwise organize any Subsidiary
after the date hereof, except wholly owned Subsidiaries organized for the
special purpose of taking title to (i) a mortgage or equivalent security then
held by the Issuer or acquired in connection with property held by the Issuer
for the purpose of foreclosing upon such mortgage or equivalent security or
(ii) Real Estate which is the subject of the lien of a mortgage or equivalent
security then held by the Issuer or acquired in connection with property held by
the Issuer for the purpose of holding and operating such Real Estate in such
Subsidiary; PROVIDED, HOWEVER, that the Issuer complies with the provisions of
the Collateral Documents; and, PROVIDED, FURTHER, that (x) any such Subsidiary
shall be subject to and bound by the provisions of Sections 4.04 through 4.18 of
this Indenture as if it were a party hereto, and (y) the Stock of any such
Subsidiary shall be pledged to Wilmington Trust Company, as collateral agent for
the ratable benefit of the Holders as security for the Obligations of the Issuer
under this Indenture and the Notes pursuant to a pledge agreement in form and
substance satisfactory to the Trustee.
SECTION 4.19. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Unless waived by the Required Holders, upon the occurrence of a
Change of Control, the Issuer shall make an offer (the "Change of Control
Offer") to each Holder of Notes to repurchase all or any part (equal to $1,000
or an integral multiple thereof) of such Holder's Notes at a purchase price
equal to 100% of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase (the "Change of Control Payment").
Within 45 days following any Change of Control, the Issuer shall mail a notice
to the Trustee and each Holder stating: (1) that the Change of Control Offer is
being made pursuant to this Section
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and that all Notes tendered will be accepted for payment; (2) the purchase
price and the purchase date, which shall be no earlier than 30 days nor later
than 45 days from the date such notice is mailed (the "Change of Control
Payment Date"); (3) that any Note not tendered shall continue to accrue
interest in accordance with its terms; (4) that, unless the Issuer defaults
in the payment of the Change of Control Payment, all Notes accepted for
payment pursuant to the Change of Control Offer shall cease to accrue
interest after the Change of Control Payment Date; (5) that Holders electing
to have any Notes purchased pursuant to a Change of Control Offer will be
required to surrender the Notes, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Notes completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the
third Business Day preceding the Change of Control Payment Date; (6) that
Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the second Business Day
preceding the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing his election to have such Notes purchased; and (7) that Holders
whose Notes are being purchased only in part will be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered,
which unpurchased portion must be equal to $1,000 in principal amount or an
integral multiple thereof. The Issuer shall comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable
in connection with the repurchase of the Notes in connection with a Change of
Control.
(b) On the Change of Control Payment Date, the Issuer shall, to the
extent lawful, (1) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (2) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
Notes or portions thereof tendered to the Issuer. The Paying Agent shall
promptly mail to each Holder of Notes so accepted payment in an amount equal to
the purchase price for such Notes, and the Trustee shall promptly authenticate
and mail to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; PROVIDED, HOWEVER, that each such new
Note shall be in a principal amount of $1,000 or an integral multiple thereof.
The Issuer will publicly announce the results of the Change of Control Offer on
or as soon as practicable after the Change of Control Payment Date.
(c) The Trustee shall be under no obligation to ascertain the
occurrence of a Change in Control or to give notice with respect thereto other
than upon receipt of the written notice of Change in Control from the Issuer.
The Trustee
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may conclusively assume, in the absence of written notice to the contrary
from the Issuer or any Holder, that no Change in Control has occurred.
(d) Except as described above with respect to a Change of Control,
the Issuer shall not be required to repurchase or redeem the Notes from the
Holders of the Notes in the event of a takeover, recapitalization or similar
transaction.
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Issuer shall not consolidate or merge with or into (whether or not
the Issuer is the surviving entity), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets in one
or more related transactions to, another Person unless (a) the Issuer is the
surviving entity, or the Person formed by or surviving any such consolidation or
merger (if other than the Issuer) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United States, any state thereof or
the District of Columbia, (b) the Person formed by or surviving any such
consolidation or merger (if other than the Issuer), or the Person to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have
been made, assumes, pursuant to a supplemental indenture and appropriate
collateral documents in forms reasonably satisfactory to the Trustee, all of the
obligations of the Issuer under the Notes and this Indenture and all the
obligations of the Issuer under the Collateral Documents, (c) immediately before
and immediately after giving effect to such transaction no Default or Event of
Default exists, and (d) the Issuer or the Person formed by or surviving any such
consolidation or merger, or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made after giving pro forma
effect thereto as of the end of the most recently completed Fiscal Quarter shall
have a Consolidated Net Worth equal to or greater than the Consolidated Net
Worth of the Issuer immediately preceding the transaction.
The Issuer shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Section 5.01. The Trustee shall be entitled to rely
conclusively upon such Officers' Certificate and Opinion of Counsel.
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SECTION 5.02. SUCCESSOR ENTITY SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Issuer in
accordance with Section 5.01 hereof, the successor entity formed by such
consolidation or into or with which the Issuer is merged or to which such sale,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such consolidation, merger,
sale, lease, conveyance or other disposition, the provisions of this Indenture
and the Collateral Documents referring to the Issuer shall refer instead to the
successor entity and not to the Issuer), and may exercise every right and power
of the Issuer under this Indenture and the Collateral Documents with the same
effect as if such successor Person has been named as the Issuer, herein and
therein, and the Issuer will be discharged from all obligations under this
Indenture, the Notes and the Collateral Documents.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following events (whatever the reason for such event)
constitutes an "Event of Default":
(a) The Issuer shall fail to make any payment in respect of principal
of the Notes or under Section 3.09 or 4.19 of this Indenture when the same
becomes due and payable and such failure continues for a period of 5
Business Days after the due date of such payment, or the Issuer shall fail
to make any payment when due of interest on the Notes and such failure
continues for a period of 10 days after the due date of such payment; or
(b) Any representation or warranty made or deemed made by the Issuer
or any Subsidiary (or any of their officers) under the Disclosure Statement
or the Collateral Documents shall prove to have been untrue or incorrect in
any material respect when made or deemed made; or
(c) The Issuer (or the Issuer or any Subsidiary in the case of the
Collateral Documents) shall fail to perform or observe (i) any term,
covenant or agreement contained in Article 4 (other than Section 4.07) or
Article 5 or (ii) any other term, covenant or agreement contained in this
Indenture, the Plan or the Collateral Documents, if such failure under this
clause (ii) shall remain unremedied for 30 days after the earlier of the
date on which (A) an Officer of the Issuer becomes aware of such failure or
(B) written notice thereof shall have been given to the Issuer by the
Trustee or the Holders; or
38
(d) The Issuer or any Subsidiary shall fail, after any applicable
grace period, to pay any principal of or premium, if any, or interest on
any of its Indebtedness in an amount exceeding $1,000,000 (excluding the
Notes), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise); or any
other event shall occur or condition shall exist under any agreement or
instrument relating to any such Indebtedness, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Indebtedness; or any such Indebtedness shall be declared
to be due and payable, or required to be prepaid (other than by a regularly
scheduled required prepayment), prior to the stated maturity thereof; or
(e) The Issuer or any Material Subsidiary of the Issuer shall
generally not pay its debts as such debts become due except such debts that
are the subject of a good faith dispute, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors, or any proceeding shall be instituted by or
against the Issuer or such Material Subsidiary seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee or other similar official for it or for
any substantial part of its property and, in the case of any such
proceedings instituted against the Issuer or such Material Subsidiary (but
not instituted by it), either such proceedings shall remain undismissed or
unstayed for a period of 30 days or any of the actions sought in such
proceedings shall occur; or the Issuer or such Material Subsidiary shall
take any action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$1,000,000 shall be rendered against the Issuer or any Subsidiary and
either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order, or (ii) there shall be any period of
ten consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(g) Except for releases of Collateral pursuant to Asset Sales
effected in accordance with Section 4.11, this Indenture or the Collateral
Documents shall, for any reason, cease to create a valid Lien on Collateral
having a value of $1,000,000 or more purported to be covered thereby, or
such Lien shall cease to have the priority Lien status initially granted
and be a perfected Lien as to Collateral having a value of $1,000,000 or
more.
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SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default specified in
clause (e) of Section 6.01 hereof) occurs and is continuing, the Trustee by
notice to the Issuer may, or upon written notice from the Required Holders
shall, or the Required Holders by written notice to the Issuer and the Trustee
may, declare all the Notes to be due and payable immediately. Upon such
declaration, the principal of, premium, if any, and interest on the Notes shall
be due and payable immediately. If an Event of Default specified in clause (e)
of Section 6.01 hereof occurs, such an amount shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder. The Required Holders by written notice to the
Trustee may on behalf of all of the Holders rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal, interest
or premium that has become due solely because of the acceleration) have been
cured or waived.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee and/or
the Collateral Agent, as applicable, may pursue any available remedy (under this
Indenture, the Collateral Documents or otherwise) to collect the payment of
principal and interest on the Notes or to enforce the performance of any
provision of the Notes, this Indenture or the Collateral Documents.
The Trustee or the Collateral Agent may maintain a proceeding even if
it does not possess any of the Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee, the Collateral Agent or any
Holder of a Note in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. All remedies are cumulative to the extent
permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
The Required Holders by notice to the Trustee may on behalf of the
Holders of all of the Notes waive an existing Default or Event of Default and
its consequences under this Indenture, except a continuing Default or Event of
Default in the payment of the principal of or interest on the Notes. Upon any
such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this Indenture
and the Collateral Documents; but no such waiver shall extend to any subsequent
or other Default or Event of Default.
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SECTION 6.0 DIRECTION BY REQUIRED HOLDERS.
The Required Holders may direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee
and/or the Collateral Agent or exercising any trust or power conferred on it or
them. However, the Trustee and/or the Collateral Agent may refuse to follow any
direction that conflicts with the law, this Indenture or the Collateral
Documents, that the Trustee and/or the Collateral Agent determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee and/or the Collateral Agent in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture
or the Notes only if:
(a) the Holder of a Note gives to the Trustee and the Collateral
Agent written notice of a continuing Event of Default;
(b) the Required Holders make a written request to the Trustee
and the Collateral Agent to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee and the Collateral Agent indemnity
satisfactory to the Trustee and the Collateral Agent against any loss,
liability or expense;
(d) the Trustee and the Collateral Agent do not comply with the
request within 60 days after receipt of the request and the offer and, if
requested, the provision of indemnity; and
(e) during such 60-day period the Required Holders do not give
the Trustee and the Collateral Agent a direction inconsistent with the
request.
A Holder of a Note may not use this Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note.
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal and interest on the Note,
on or after
41
the respective due dates expressed in the Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of the Holder, except that no
Holder shall have the right to institute any such suit if and to the extent
that the institution or prosecution thereof or the entry of judgment therein
would under applicable law result in the surrender, impairment, waiver or
loss of the Liens pursuant to the Collateral Documents upon any property
subject to such Liens.
SECTION 6.08. COLLECTION SUIT.
If an Event of Default specified in Section 6.01(a) hereof occurs and
is continuing, the Trustee and/or the Collateral Agent are authorized to recover
judgment in its own name and as trustee of an express trust against the Issuer
for the whole amount of principal of and interest remaining unpaid on the Notes
and interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, the Collateral Agent and their respective agents and
counsel.
SECTION 6.09. PROOFS OF CLAIM.
The Trustee and/or the Collateral Agent are authorized to file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and the Collateral Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, the Collateral Agent, and their respective agents and counsel)
and the Holders of the Notes allowed in any judicial proceedings relative to the
Issuer (or any other obligor upon the Notes), the Issuer's creditors or the
Issuer's property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such claims
and any custodian in any such judicial proceeding is hereby authorized by each
Holder of a Note to make such payments to the Trustee and the Collateral Agent,
and in the event that the Trustee and the Collateral Agent shall consent to the
making of such payments directly to the Holders of the Notes, to pay to the
Trustee and the Collateral Agent any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, the
Collateral Agent, and their respective agents and counsel, and any other amounts
due the Trustee and the Collateral Agent under Section 7.07 hereof. To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, the Collateral Agent, or their respective agents and
counsel, and any other amounts due the Trustee and the Collateral Agent under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and
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all distributions, dividends, money, securities and other properties which
the Holders of the Notes may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee
or the Collateral Agent to authorize or consent to or accept or adopt on
behalf of any Holder of a Note any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder of
a Note thereof, or to authorize the Trustee or the Collateral Agent to vote
in respect of the claim of any Holder of a Note in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee or the Collateral Agent collects any money pursuant to
this Article, it shall pay out the money in the following order:
FIRST: to the Trustee, the Collateral Agent and their respective
agents and attorneys for amounts due under Section 7.07 hereof, including
payment of all compensation, expense and liabilities incurred, and all advances
made, by the Trustee and/or the Collateral Agent and the costs and expenses of
collection;
SECOND: to Holders of Notes for amounts due and unpaid on the Notes
for principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal and
interest, respectively;
THIRD: without duplication, to Holders for any other Obligations
owing to the Holders under this Indenture, the Notes or the Collateral
Documents; and
FOURTH: to the Issuer or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee and/or the Collateral Agent for any
action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply
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to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section
6.06 hereof, or a suit by Holders of more than 10% in principal amount of the
then outstanding Notes.
SECTION 6.12. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Issuer, the
Trustee and the Holders will, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holder will continue
as though no such proceeding had been instituted.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Collateral Documents and the
Trustee undertakes to perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee, and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture, if any.
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(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders of Notes, unless such Holder shall have offered to
the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel, accountants and other experts and the written advice of
such counsel, accountants and other experts or any Opinion of Counsel shall be
full and complete authorization and
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protection from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture or the Collateral
Documents.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Issuer shall be sufficient if
signed by an Officer of the Issuer.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holders shall have offered to each of the
Trustee and the Collateral Agent reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in compliance with
such request or direction.
(g) Without limitation and notwithstanding any other provision
herein, the Trustee (i) shall not be required to take any action regarding any
Real Estate, including, without limitation, foreclosure or other action
(collectively, a "Foreclosure Action"), which could result in the Trustee being
deemed to be an "operator" under CERCLA (as defined in the definition of
"Hazardous Substance"), if in the reasonable judgment of the Trustee by taking
such action it would incur unacceptable environmental liability, and (ii) shall
have the right, prior to taking any Foreclosure Action with respect to any Real
Estate, to obtain a "Phase One" or other environmental report concerning such
Real Estate prepared by a consultant of its choice and to be reimbursed for the
reasonable cost thereof pursuant to Section 7.07 hereof, if, in its reasonable
judgment, such report is necessary in order to assess the matters described in
clause (i) hereof. In making an evaluation described under clause (i) of the
preceding sentence, the Trustee shall assess its potential liability as compared
to the indemnity available pursuant to Section 7.07 hereof, or from any Holder
pursuant to Section 7.01(e) and/or 7.02(f) hereof.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Issuer or any
Affiliate of the Issuer with the same rights it would have if it were not the
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such
46
conflict within 90 days, apply to the SEC for permission to continue as
trustee or resign. Any Agent may do the same with like rights and duties.
The Trustee is also subject to Sections 7.10 and 7.11 hereof, as specified
therein, of this Indenture.
SECTION 7.04. DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or of the Notes, it shall not
be accountable for the Issuer's use of the proceeds from the Notes or any money
paid to the Issuer or upon the Issuer's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than itself, and it shall not be responsible
for any statement or recital herein or any statement in the Notes or any other
document in connection with the sale of the Notes or pursuant to this Indenture
other than its certificate of authentication. The Trustee makes no
representation as to the validity, value or condition of any property covered or
intended to be covered by the Lien of the Collateral Documents or any part
thereof or as to the title of the Issuer or any Subsidiary to such property or
as to the security afforded by the Collateral Documents or hereby.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it
is known to a Responsible Officer of the Trustee and/or the Collateral Agent,
the Trustee and/or the Collateral Agent shall promptly notify the other, and
the Trustee shall mail to Holders of Notes a notice of the Default or Event
of Default within 30 days after it occurs. Notwithstanding anything
contained in TIA Section 315(b) to the contrary, the Trustee shall not
withhold any such notice.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each January 1 beginning with the January 1
following the Issue Date, the Trustee shall mail to the Holders of the Notes
a brief report dated as of such reporting date that complies with TIA Section
313(a) (but if no event described in TIA Section 313(a) has occurred within
the twelve months preceding the reporting date, no report need be
transmitted). The Trustee shall, within 90 days thereof, and in compliance
with TIA Section 313(b), notify the Holders of the Notes in the event of (1)
the release, or release and substitution, of any collateral pursuant to
Section 10.03 or 10.04 hereof (and the consideration therefor, if any) the
fair value of which equals or exceeds 10% of the principal amount of the
Notes outstanding at the time of such release or (2) the character and amount
of any advances made by it since
47
the date of the last report transmitted pursuant to TIA Section 313(a) (or if
no such report has yet been so transmitted, since the date hereof), for the
reimbursement of which it may claim a lien or charge higher than that of the
Notes, the aggregate amount of which at any time exceeds 10% of the principal
amount of the Notes outstanding at such time. The Trustee also shall comply
with TIA Section 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Issuer and filed with the SEC and each stock
exchange, if any, on which the Notes are listed, in accordance with TIA
Section 313(d). The Issuer shall promptly notify the Trustee when the Notes
are listed on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Issuer shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Issuer shall indemnify and hold harmless the Trustee against any
and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture without negligence or bad faith on its part, including, but not
limited to, all losses, liabilities or expenses arising in connection with the
release or presence of any Hazardous Substance at or from the Real Estate
whether foreseeable or unforeseeable, regardless of the source of such release
or when such release occurred or such presence is discovered. The foregoing
indemnity includes, without limitation, all costs of removal, remediation of any
kind, and disposal of such Hazardous Substances (whether or not such Hazardous
Substances may be legally allowed to remain in the Real Estate if removal or
remediation is prudent), after a foreclosure, the cost of determining whether
the Real Estate that was the subject of the foreclosure is in compliance and
causing such Real Estate to be in compliance with all applicable Environmental
Laws, and the Trustee's reasonable attorneys' and consultants' fees and court
costs relating thereto. The Trustee shall notify the Issuer promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Issuer shall pay the reasonable fees
and expenses of such counsel.
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The Issuer need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld.
The obligations of the Issuer under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
To secure the Issuer's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(e) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Issuer. The Holders of a majority
in principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Issuer in writing. The Issuer may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuer shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in
49
principal amount of the then outstanding Notes may appoint a successor
Trustee to replace the successor Trustee appointed by the Issuer.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer, or the
Holders of at least 10% in principal amount of the then outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee after written request by any Holder of a Note who has
been a Holder of a Note for at least six months fails to comply with Section
7.10 hereof, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of such
succession to Holders of the Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee provided
all sums owing to the retiring Trustee hereunder have been paid and subject to
the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of
the Trustee pursuant to this Section, the Issuer's obligations under Section
7.07 hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation or association without any further act shall be the
successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state thereof authorized under such laws to exercise corporate
trust powers, shall be subject to supervision or examination by federal or state
authority and shall have a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), (2) and (5). The Trustee is subject
to TIA Section 310(b).
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SECTION 7.11. PREFERENTIAL COLLECTION OF
CLAIMS AGAINST ISSUER.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE 8
DEFEASANCE
SECTION 8.01. OPTION TO EFFECT DEFEASANCE.
The Issuer may, at the option of its Board of Trustees evidenced by a
resolution set forth in an Officers' Certificate, at any time, with respect to
the Notes, elect to have Section 8.02 hereof be applied to all outstanding Notes
upon compliance with the conditions set forth below in this Article Eight.
SECTION 8.02. DEFEASANCE AND DISCHARGE.
Upon the Issuer's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Issuer shall be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below (including Section 8.03) are satisfied
(hereinafter, "Defeasance"). For this purpose, such Defeasance means that the
Issuer shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.04 hereof and the other
Sections of this Indenture referred to in (a) and (b) of this Section 8.02, and
to have satisfied all its other obligations under such Notes and this Indenture
(and the Trustee, on demand of and at the expense of the Issuer, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of outstanding Notes to receive solely from the trust fund described in
Section 8.03 hereof, and as more fully set forth in such Section, payments in
respect of the principal of and interest on such Notes when such payments are
due, (b) the Issuer's obligations with respect to such Notes under Sections
2.04, 2.06, 2.07, 2.10 and 4.02 hereof, (c) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and the Issuer's obligations in
connection therewith, and (d) this Article Eight.
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SECTION 8.03. CONDITIONS TO DEFEASANCE.
The following shall be the conditions to the application of Section
8.02 hereof to the outstanding Notes:
(a) the Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 hereof who shall agree to comply with the provisions of
this Article Eight applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Notes,
(i) Cash in an amount or (ii) non-callable Governmental Securities which
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment under the Notes, Cash in an amount, or (iii) a
combination thereof, in such amounts, as will be sufficient to pay and
discharge and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge (A) the principal of and interest on the
outstanding Notes on the stated maturity or on the applicable redemption
date, as the case may be, and (B) any mandatory sinking fund payments or
analogous payments applicable to the outstanding Notes on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and of such Notes; provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such non-
callable Governmental Securities to said payments with respect to the
Notes;
(b) no Default or Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit;
(c) such Defeasance shall not result in a breach or violation
of, or constitute a default under, this Indenture or any other agreement or
instrument to which the Issuer is a party or by which the Issuer is bound;
(d) the Issuer shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by the Issuer pursuant to its
election under Section 8.02 hereof was not made by the Issuer with the
intent of preferring the Holders over other creditors of the Issuer or with
the intent of defeating, hindering, delaying or defrauding creditors of the
Issuer or others;
(e) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the Defeasance under Section 8.02 have
been complied with as contemplated by this Section 8.03;
52
(f) the Issuer shall have delivered to the Trustee an Opinion of
Counsel reasonably acceptable to the Trustee confirming that (i) the Issuer
has received from, or there has been published by, the Internal Revenue
Service a ruling or (ii) since the date hereof, there has been a change in
the applicable federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the Holders
of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Defeasance had not
occurred; and
(g) the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that such deposit would not constitute a preference
as defined in Section 547 of the Bankruptcy Code, and the trust funds would
not constitute property included within the estate of the debtor.
SECTION 8.04. DEPOSITED MONEY AND GOVERNMENTAL
SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.05 hereof, all money and Governmental Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.04, the "Trustee") pursuant
to Section 8.03 hereof in respect of the outstanding Notes shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Issuer acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or Governmental Securities
deposited pursuant to Section 8.03 hereof or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon the request of
the Issuer any money or Governmental Securities held by it as provided in
Section 8.03 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in
53
excess of the amount thereof which would then be required to be deposited to
effect an equivalent Defeasance.
SECTION 8.05. REPAYMENT TO ISSUER.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuer, in trust for the payment of the principal of or interest on any
Note and remaining unclaimed for two years after such principal or interest has
become due and payable shall be paid to the Issuer on its request or (if then
held by the Issuer) shall be discharged from such trust; and the Holder of such
Note shall thereafter, as a general unsecured creditor, look only to the Issuer
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer, as trustees
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Issuer cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of
money then remaining will be repaid to the Issuer.
SECTION 8.06. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any Cash or
Governmental Securities in accordance with Section 8.02 hereof, as the case may
be, by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Issuer's obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.02 hereof
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 8.02 hereof, as the case may be; PROVIDED,
HOWEVER, that, if the Issuer makes any payment of principal or interest on any
Note following the reinstatement of its obligations, the Issuer shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
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ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 hereof, the Issuer and the Trustee may
amend or supplement this Indenture and the Notes without the consent of any
Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(c) to provide for (i) the assumption of the Issuer's
obligations to the Holders of the Notes in the case of a merger or
consolidation pursuant to Article 5 hereof, and (ii) certain amendments to
the Collateral Documents expressly called for therein pursuant to Section
10.01 hereof;
(d) to execute and deliver any documents necessary or
appropriate to release Liens on any Collateral as permitted by Section
10.03 or 10.04 hereof;
(e) to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not materially
adversely affect the legal rights hereunder of any Holder of the Notes; or
(f) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the request of the Issuer accompanied by a resolution of the
Board of Trustees of the Issuer authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 9.06 hereof, the Trustee shall join with the Issuer in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations which may be therein contained, but the Trustee shall not be
obligated to enter into any such amended or supplemental Indenture which affects
its own rights, duties or immunities under this Indenture, the Collateral
Documents or otherwise. The Issuer shall give the Holders of the Notes notice
of the effectiveness of any amendment under this Section 9.01.
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SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
The Issuer and the Trustee may amend or supplement this Indenture, the
Notes, or any amended or supplemental Indenture with the written consent of the
Required Holders (including consents obtained in connection with a tender offer
or exchange offer for the Notes), and any existing Default or Event of Default
and its consequences or compliance with any provision of this Indenture or the
Notes may be waived with the consent of the Required Holders (including consents
obtained in connection with a tender offer or exchange offer for the Notes).
Upon the request of the Issuer accompanied by a resolution the Board
of Trustees of the Issuer authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Required Holders as aforesaid,
and upon receipt by the Trustee of the documents described in Section 9.06
hereof, the Trustee shall join with the Issuer in the execution of such amended
or supplemental Indenture unless such amended or supplemental Indenture affects
the Trustee's own rights, duties or immunities under this Indenture, or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental Indenture.
After an amendment, supplement or waiver under this Section becomes
effective, the Issuer shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Issuer to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Required
Holders may waive compliance in a particular instance by the Issuer with any
provision of this Indenture or the Notes. However, without the consent of each
Holder affected, an amendment or waiver may not (with respect to any Notes held
by a nonconsenting Holder of Notes):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Note or reduce the redemption price of the Notes;
(c) reduce the rate of or change the time for payment of
interest on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or interest on the Notes (except a rescission of acceleration
of the Notes by the Required Holders and a waiver of the payment default
that resulted from such acceleration);
56
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating
to waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or interest on the Notes;
(g) directly or indirectly release Liens on all or substantially
all of the Collateral except in connection with a merger, consolidation or
disposition of assets permitted under this Indenture;
(h) make any change in the foregoing amendment and waiver
provision; or
(i) waive a redemption payment with respect to any Note.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be
set forth in an amended or supplemental Indenture that complies with the TIA as
then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder of a Note.
The Issuer may fix a record date for determining which Holders of the
Notes must consent to such amendment, supplement or waiver. If the Issuer fixes
a record date, the record date shall be fixed at (i) the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders of Notes furnished to the Trustee prior to such solicitation pursuant to
Section 2.05 hereof or (ii) such other date as the Issuer shall designate.
57
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Issuer in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Issuer may not sign an amendment or supplemental Indenture until its Board
of Trustees approves it. In signing or refusing to sign such amendment or
supplemental Indenture, the Trustee shall be entitled to receive, if requested,
an indemnity reasonably satisfactory to it and to receive and, subject to
Section 7.01 hereof, shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that such amendment
or supplemental Indenture is authorized or permitted by this Indenture, that it
is not inconsistent herewith, and that it will be valid and binding upon the
Issuer in accordance with its terms.
ARTICLE 10
COLLATERAL AND SECURITY
SECTION 10.01. COLLATERAL DOCUMENTS.
The due and punctual payment of the principal of and interest on the
Notes when and as the same shall be due and payable, whether on an interest
payment date or a principal amortization date, at maturity, by acceleration,
repurchase, redemption or otherwise, and interest on the overdue principal of
and interest (to the extent permitted by law), if any, on the Notes and
performance of all other obligations of the Issuer to the Holders of Notes, the
Trustee or the Collateral Agent under this Indenture, the Collateral Documents
and the Notes, according to the terms hereunder or thereunder, shall be secured
as provided in the Collateral Documents which the Issuer and the Subsidiaries
have entered into simultaneously with the execution of this Indenture. Each
Holder of Notes, by its acceptance thereof, consents and agrees to the terms of
the Collateral Documents (including, without limitation, the provisions
providing for foreclosure and release of Collateral) as the same may be in
effect or may be amended from time to time in accordance with its
58
terms and authorizes and directs the Collateral Agent to enter into the
Collateral Documents and to perform its obligations and exercise its rights
thereunder in accordance therewith. The Issuer shall deliver to the Trustee
copies of all Collateral Documents, and, subject to the provisions of the
Collateral Documents, shall do or cause to be done all such acts and things
as may be necessary or proper, or as may be required by the provisions of the
Collateral Documents, to assure and confirm to the Trustee the security
interest in the Collateral contemplated hereby, by the Collateral Documents
or any part thereof, as from time to time constituted, so as to render the
same available for the security and benefit of this Indenture and the Notes
secured hereby, according to the intent and purposes herein expressed. The
Issuer shall take, or shall cause the Subsidiaries to take, upon request of
the Trustee, any and all actions reasonably required to cause the Collateral
Documents to create and maintain, as security for the Obligations of the
Issuer hereunder, a valid and enforceable perfected first priority Lien in
and on all of the Collateral, in favor of the Collateral Agent for the
benefit of the Trustee, the Collateral Agent and the Holders of Notes, (a)
superior to and prior to the rights of all third Persons other than those
holding the First Lien Debt, and (b) subject to no Liens other than the Liens
permitted under Section 4.13 hereof.
SECTION 10.02. RECORDING AND OPINIONS.
(a) The Issuer shall furnish to the Trustee, promptly following
the execution and delivery of this Indenture, an Opinion of Counsel either
(i) stating that in the opinion of such counsel all action has been taken with
respect to the recording, registering and filing of this Indenture, the
Mortgages, the Assignments of Leases, the Collateral Assignments of Mortgages,
the Collateral Assignments of Leases and Uniform Commercial Code financing
statements necessary to make effective and perfect the Lien intended to be
created by the Collateral Documents, and reciting with respect to the security
interests in the Collateral, the details of such action, or (ii) stating that,
in the opinion of such counsel, no such action is necessary to make such Lien
effective.
(b) The Issuer shall furnish to the Trustee within three months
after each anniversary of the Issue Date an Opinion of Counsel, dated as of such
date, either (i) (A) stating that, in the opinion of such counsel, action has
been taken with respect to the recording, registering, filing, re-recording,
re-registering and refiling of all supplemental indentures, mortgages, financing
statements, continuation statements or other instruments of further assurance as
is necessary to maintain the Lien of the Collateral Documents and reciting with
respect to the security interests in the Collateral the details of such action
or referring to prior Opinions of Counsel in which such details are given, and
(B) stating that, based on relevant laws as in effect on the date of such
Opinion of Counsel, all financing statements and continuation statements have
been executed and filed that are necessary as of such date and during the
59
succeeding 12 months fully to preserve and protect, to the extent such
protection and preservation are possible by filing, the rights of the Holders of
Notes, the Trustee and the Collateral Agent hereunder and under the Collateral
Documents with respect to the security interests in the Collateral, or
(ii) stating that, in the opinion of such counsel, no such action is necessary
to maintain such Lien and assignment.
SECTION 10.03. RELEASE OF COLLATERAL.
(a) Subject to subsections (b) and (d) of this Section 10.03,
Collateral may be released from the Lien and security interest created by the
Collateral Documents at any time or from time to time in accordance with the
provisions of the Collateral Documents.
(b) No Collateral shall be released from the Lien and security
interest created by the Collateral Documents pursuant to the provisions of the
Collateral Documents or hereof unless the Issuer shall have made an Asset Sale
Offer in accordance with Section 3.09 hereof.
(c) Notwithstanding any of the terms hereof or of any of the
Collateral Documents, at any time when an Event of Default shall have occurred
and be continuing and the maturity of the Notes shall have been accelerated
(whether by declaration or otherwise), the Collateral Agent shall not, without
the consent of the Required Holders, release any Collateral pursuant to the
provisions hereof or any of the Collateral Documents.
(d) The release of any Collateral from the terms of this
Indenture and the Collateral Documents shall not be deemed to impair the
security under this Indenture in contravention of the provisions hereof if
and to the extent the Collateral is released pursuant to the terms hereof.
To the extent applicable, the Issuer shall cause TIA Section 314(d) relating
to the release of property or securities from the Lien and security interest
of the Collateral Documents and relating to the substitution therefor of any
property or securities to be subjected to the Lien and security interest of
the Collateral Documents to be complied with. Any certificate or opinion
required by TIA Section 314(d) may be made by an Officer of the Issuer except
in cases where TIA Section 314(d) requires that such certificate or opinion
be made by an independent Person, which Person shall be an independent
engineer, appraiser or other expert selected or approved by the Trustee or
the Collateral Agent in the exercise of reasonable care.
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SECTION 10.04. CERTIFICATES OF THE ISSUER.
The Issuer shall furnish to the Trustee and the Collateral
Agent, prior to each proposed release of Collateral pursuant to the Collateral
Documents or this Indenture, (i) all documents required by Section 314(d) of the
TIA and (ii) an Opinion of Counsel to the effect that such accompanying
documents constitute all documents required by Section 314(d) of the TIA. The
Trustee may, to the extent permitted by Sections 7.01 and 7.02 hereof, accept as
conclusive evidence of compliance with the foregoing provisions the appropriate
statements contained in such documents and such Opinion of Counsel.
SECTION 10.05. AUTHORIZATION OF ACTIONS TO BE TAKEN BY
THE COLLATERAL AGENT UNDER THE COLLATERAL
DOCUMENTS.
Subject to the provisions of Sections 7.01 and 7.02 hereof, the
Trustee may, in its sole discretion and without the consent of the Holders of
Notes, on behalf of the Holders of Notes, direct the Collateral Agent to take
all actions it deems necessary or appropriate in order to (a) enforce any of the
terms of the Collateral Documents and (b) collect and receive any and all
amounts payable in respect of the Obligations of the Issuer hereunder or under
the Collateral Documents. The Trustee and the Collateral Agent shall have power
to institute and maintain such suits and proceedings and enter into such
agreements as either may deem expedient to prevent any impairment of the
Collateral by any acts that may be unlawful or in violation of the Collateral
Documents or this Indenture, and such suits, proceedings and agreements as the
Trustee or the Collateral Agent may deem expedient to preserve or protect its
interests and the interests of the Holders of Notes in the Collateral (including
power to institute and maintain suits or proceedings to restrain the enforcement
of or compliance with any legislative or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid if the enforcement of,
or compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Trustee, the
Collateral Agent or the Holders of Notes).
SECTION 10.06. AUTHORIZATION OF RECEIPT OF FUNDS BY THE
TRUSTEE UNDER THE COLLATERAL DOCUMENTS.
The Trustee shall cause the Collateral Agent to deliver to the Trustee
and the Trustee is authorized to receive any funds for the benefit of the
Holders of Notes distributed under the Collateral Documents, and to make further
distributions of such funds to the Holders of Notes according to the provisions
of this Indenture and the Collateral Documents.
61
SECTION 10.07. TERMINATION OF SECURITY INTEREST.
Upon the full and final payment of all Obligations of the Issuer under
this Indenture, the Notes and the Collateral Documents (including an effective
defeasance pursuant to Section 8.02 hereof), the Trustee shall, at the request
of the Issuer, release the Liens pursuant to this Indenture. If the Trustee or
Paying Agent is unable to apply any United States Dollars or Governmental
Securities in accordance with Section 8.02 hereof by reason of any order or
judgment of any court or Governmental Authority enjoining, restraining or
otherwise prohibiting such application, then the Trustee shall cause the
Collateral Agent to cause the Liens to be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 hereof until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 8.02 hereof.
SECTION 10.08. COLLATERAL AGENT'S DUTIES.
The Collateral Agent, acting in its capacity as such, shall have only
such duties with respect to the Collateral as are set forth in the Collateral
Documents.
ARTICLE 11
GUARANTEE OF NOTES
SECTION 11.01. UNCONDITIONAL GUARANTEE.
Subject to the provisions of this Article 11 the Guarantors, jointly
and severally, hereby unconditionally guarantee to each Holder of a Note
authenticated and delivered by the Trustee, and to the Trustee, the due and
punctual payment of the principal of and interest on such Note, when and as the
same shall become due and payable, whether by declaration thereof or otherwise,
in accordance with the terms of such Note and of this Indenture. The Guarantors
hereby agree that their obligations hereunder shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any such Note or this Indenture, any failure
to enforce the provisions of any such Note or this Indenture, any waiver,
modification or indulgence granted to the Issuer with respect thereto, by the
holder of such Note or the Trustee, or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or guarantor.
The Guarantors hereby waive diligence, presentment, demand of payment, filing of
claims with a court in the event of merger or bankruptcy of the Issuer, any
right to require a proceeding first against the Issuer, the benefit of
discussion, protest or notice with respect to any such Note or the Indebtedness
evidenced thereby and all demands whatsoever, and covenant that this Guarantee
will not be discharged as to any such Note except by payment in full of the
principal of and interest thereon.
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The Guarantors shall be subrogated to all rights of the Holder of any
Notes against the Issuer in respect of any amounts paid to the Holder by the
Guarantors pursuant to the provisions of this Guarantee; PROVIDED, HOWEVER, that
the Guarantors shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of
and interest on all Notes shall have been paid in full.
The Guarantees set forth in this Section 11.01 shall not be valid or
become obligatory for any purpose with respect to a Note until the certificate
of authentication on such Note shall have been signed by or on behalf of the
Trustee.
SECTION 11.02. CONTRIBUTION.
If any Guarantor shall have paid more than its pro rata share pursuant
to this Article 11, then such Guarantor (a "Funding Guarantor") shall be
entitled to a contribution from all other Guarantors in a PRO RATA amount based
on the Adjusted Net Assets of each Guarantor (including the Funding Guarantor)
for all payments, damages and expenses incurred by such Funding Guarantor in
discharging the Issuer's obligations with respect to the Notes or any other
Guarantor's obligations with respect to the Guarantees.
SECTION 11.03. "TRUSTEE" TO INCLUDE PAYING AGENT.
In case at any time any paying agent other than the Trustee shall have
been appointed by the Issuer and be then acting hereunder, the term "Trustee" as
used in this Article 11 shall in such case (unless the context shall otherwise
require) be construed as extending to and including such paying agent within its
meaning as fully for all intents and purposes as if such paying agent were named
in this Article 11 in place of the Trustee.
SECTION 11.04. RELEASE OF A GUARANTOR.
Upon the sale or disposition of any Guarantor by the Issuer in
compliance with the terms of this Indenture (including by way of merger or
consolidation), such Guarantor shall be deemed released from all obligations
under this Article 11 without any further action required on the part of the
Trustee or any Holder. All other Guarantors shall remain jointly and severally
liable for the full amount of principal of and interest on the Notes as provided
in this Article 11. At the request of the Issuer, however, the Trustee shall
execute and deliver an appropriate instrument evidencing such release.
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SECTION 11.05. EXECUTION OF GUARANTEES.
To evidence their guarantee to the Holders specified in Section 11.01
hereof, the Guarantors hereby agree to execute the Guarantee substantially in
the form above recited to be endorsed on each Note authenticated and delivered
by the Trustee. Each such Guarantee shall be signed on behalf of each of the
Guarantors by its Chairman of the Board, President or a Vice President prior to
the authentication of the Note on which it is endorsed, and the delivery of such
Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of such Guarantee on behalf of the Guarantors. Such
signatures upon a Guarantee may be manual or facsimile signature of the present,
past or any future such officers and may be imprinted or otherwise reproduced on
the Guarantees, and in case any such officer who shall have signed any of the
Guarantees shall cease to be such officer before the Note on which such
Guarantee is endorsed shall have been authenticated and delivered by the Trustee
or disposed of by the Issuer, such Note nevertheless may be authenticated and
delivered or disposed of as though the person who signed the Guarantee had not
ceased to be such officer of such Guarantor.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties shall
control.
SECTION 12.02. NOTICES.
Any notice or communication by the Issuer or the Trustee to any other
party hereto is duly given if in writing and delivered in person or mailed by
first class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
party's address:
If to the Issuer:
Mortgage and Realty Trust
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Treasurer
64
If to the Trustee:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
The Issuer or the Trustee, by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders of
Notes) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder of a Note shall be mailed
by first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on
the register kept by the Registrar. Any notice or communication shall also
be so mailed to any Person described in TIA Section 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder
of a Note or any defect in it shall not affect its sufficiency with respect
to other Holders of Notes.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Issuer mails a notice or communication to Holders of Notes, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 12.03. COMMUNICATION BY HOLDERS OF NOTES WITH
OTHER HOLDERS OF NOTES.
Holders of the Notes may communicate pursuant to TIA Section 312(b)
with other Holders of Notes with respect to their rights under this
Indenture, the Notes and the Collateral Documents. The Trustee shall act in
accordance with TIA Section 312(b) with respect to such communications. The
Issuer, the Trustee, the Collateral Agent, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
65
SECTION 12.04. CERTIFICATE AND OPINION AS TO
CONDITIONS PRECEDENT
Upon any request or application by the Issuer to the Trustee to take
any action under this Indenture, the Issuer shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants provided for in this Indenture
relating to the proposed action have been satisfied.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE
OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
66
SECTION 12.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders of Notes. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 12.07. NO PERSONAL LIABILITY OF TRUSTEES,
OFFICERS, EMPLOYEES AND EQUITYHOLDERS.
No trustee, officer, employee or equityholder of the Issuer, as such,
shall have any liability for any obligations of the Issuer under the Notes or
this Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of the Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
SECTION 12.08. GOVERNING LAW.
The internal law of the State of New York shall govern and be used to
construe this Indenture and the Notes.
SECTION 12.09. NO ADVERSE INTERPRETATION OF OTHER
AGREEMENTS.
This Indenture and the Notes may not be used to interpret another
indenture, loan or debt agreement of the Issuer or the Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
This writing constitutes the entire agreement of the parties with respect to the
subject matter hereof. Unless expressly otherwise indicated herein, an action
or transaction permitted by one provision hereof must nonetheless comply with
all other applicable provisions hereof; and any action or transaction not
permitted by any provision of this Indenture will not be permitted regardless of
whether any other provisions hereof might permit such action or transaction.
SECTION 12.10. SUCCESSORS.
All agreements of the Issuer in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
67
SECTION 12.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 12.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 12.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
SECTION 12.14. AMENDMENT AND RESTATEMENT.
This Indenture amends and restates in its entirety the Indenture,
dated as of July 15, 1992, as amended, between the Issuer and Wilmington Trust
Company, as trustee, relating to the Issuer's Senior Secured Uncertificated
Notes due 1995.
SECTION 12.15. SATISFACTION AND DISCHARGE.
Upon the indefeasible payment in full of all Obligations of the Issuer
hereunder and under the Notes, the Issuer and the Guarantors shall be released
from all their respective obligations hereunder and under the Notes and this
Indenture shall cease to be of further effect.
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[Signatures on following page]
69
SIGNATURES
Dated as of September 29, 1995 MORTGAGE AND REALTY TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: C.F.O.
Attest:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Dated as of September 29, 1995 WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ ▇▇▇▇ St. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ St. Amand
Title: Assistant Vice President
Attest:
/s/
-----------------------------
Name:
Title:
70
Accepted and agreed to, solely with respect to the Guarantees and all
express obligations of the Guarantors set forth elsewhere herein.
MRT WEST, INC.
MRT CREEKSIDE, INC.
MRT NEWARK, INC.
MRT SANTA ▇▇▇▇▇▇, INC.
Dated as of September 29, 1995 By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President of each
the foregoing Guarantors
Attest:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
Dated as of September 29, 1995 By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Treasurer
--------------------------------
Attest:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
71
EXHIBIT A
[Face of Note]
11-1/8% Senior Secured Note due 2002
No.___ $____________
Mortgage and Realty Trust promises to pay to ________________________ or its
registered assigns the outstanding principal balance on __________ __, 2002.
The Interest Payment Dates shall be June 30 and December 31, commencing
_________ __, 1995. The Record Dates shall be June 1 and December 1 (whether or
not a Business Day).
Dated:__________________ Mortgage and Realty Trust
(SEAL)
By:_____________________________________
Title:
This is one of the Notes
referred to in the within
mentioned Indenture:
Wilmington Trust Company,
as Trustee
By:_____________________________________
Authorized Signatory
A-1
[Back of Note]
11-1/8% Senior Secured Note due 2002
Capitalized terms used herein have the meanings assigned to them in
the Indenture (as defined below) unless otherwise indicated.
1. INTEREST. Mortgage and Realty Trust, a real estate investment
trust organized under the laws of Maryland (the "Issuer"), promises to pay
interest on the principal amount of this Note at the rate and in the manner
specified below. Interest will accrue at 11-1/8% per annum and will be payable
semiannually in arrears on each June 30 and December 31, commencing _________
__, 1995 or if any such day is not a Business Day on the next succeeding
Business Day (each an "Interest Payment Date") to Holders of record of the Notes
at the close of business on the immediately preceding June 1 and December 1,
whether or not a Business Day. Interest will be computed on the basis of a
360-day year consisting of twelve 30-day months. Interest shall accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from ________ __, 1995. The Issuer shall pay interest on overdue
principal at the rate equal to 2% per annum in excess of the then applicable
interest rate on the Notes to the extent lawful; and it shall pay interest on
overdue installments of interest (without regard to any applicable grace
periods) at the same rate to the extent lawful.
2. METHOD OF PAYMENT. The Issuer will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the record date next preceding the Interest Payment
Date, even if such Notes are cancelled after such record date and on or before
such Interest Payment Date. The Holder hereof must surrender this Note to a
Paying Agent to collect principal payments. The Issuer will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Notes will be payable both
as to principal and interest at the office or agency of the Issuer maintained
for such purpose within the City of Philadelphia, Pennsylvania or, at the option
of a Holder, payment of interest may be made by check mailed to such Holder at
its address set forth in the register of Holders or by wire to an account
designated by such Holder. Unless otherwise designated by the Issuer, the
Issuer's office or agency in Philadelphia will be the office or agency of the
Trustee maintained for such a purpose.
3. PAYING AGENT AND REGISTRAR. Initially, the Trustee will act as
Paying Agent and Registrar. The Issuer may change any Paying Agent, Registrar
or co-registrar without prior notice to any Holder of a Note. The Issuer may
act in any such capacity.
A-2
4. INDENTURE. The Issuer issued the Notes under an Indenture, dated
as of ________ __, 1995 (the "Indenture"), between the Issuer and the Trustee.
The terms of the Notes include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S.C. Sections 77aaa-77bbbb), as in effect on the Issue Date. The Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and such act for a statement of such terms. The terms of the Indenture shall
govern any inconsistencies between the Indenture and the Notes. The Notes
are secured obligations of the Issuer limited to $110,000,000 in aggregate
principal amount.
5. OPTIONAL REDEMPTION. The Issuer shall have the option to redeem
the Notes, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at par plus accrued and unpaid interest thereon to the applicable
redemption date.
6. MANDATORY REDEMPTION. Except as set forth under Sections 3.09 and
4.19 of the Indenture, the Issuer will not be required to make mandatory
redemption payments or sinking fund payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control unless waived by the Required
Holders, the Issuer shall be required to offer to purchase on the Change of
Control Payment Date all outstanding Notes at a purchase price equal to 100% of
the aggregate principal amount thereof, plus accrued and unpaid interest to the
Change of Control Payment Date. Holders of Notes that are subject to an offer
to purchase will receive a Change of Control Offer from the Issuer prior to any
related Change of Control Payment Date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to Elect Purchase"
appearing below.
(b) If at any time the aggregate amount of Asset Sale Proceeds or net
cash proceeds of Indebtedness incurred pursuant to Section 4.14(i) of the
Indenture that have not been applied in accordance with Section 3.09 of the
Indenture (exclusive of any Asset Sale Proceeds or net cash proceeds which
remain after the completion of any prior Asset Sale Offer) exceeds $10 million,
the Issuer shall be required to purchase the maximum principal amount of Notes
that, together with accrued and unpaid interest thereon, may be purchased with
80% of any Asset Sale Proceeds or 100% of the net cash proceeds of such
Indebtedness, at 100% of the outstanding principal amount thereof plus accrued
and unpaid interest, if any, to the date fixed for the closing of such offer.
To the extent that the aggregate principal amount of Notes tendered together
with accrued and unpaid interest thereon pursuant to any Asset Sale Offer is
less than the Asset Sale Proceeds or net cash proceeds of Indebtedness available
therefor, the Issuer may use such deficiency in accordance with the terms of the
Indenture. If the aggregate principal amount of Notes surrendered by Holders
thereof together with accrued and unpaid interest thereon exceeds the amount of
Asset
A-3
Sale Proceeds or net cash proceeds of Indebtedness, the Notes to be redeemed
shall be selected on a pro rata basis (with such adjustments as may be
deemed appropriate by the Issuer so that only Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased). Holders of Notes that are
the subject of an offer to purchase will receive an Asset Sale Offer from the
Issuer (or the applicable Subsidiary) prior to any related purchase date and may
elect to have such Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" appearing below. Any Holder may at any time elect to
deliver to the Trustee written instructions (each a "Standing Instruction")
stating that such Holder desires to participate in any Asset Sale Offer by
tendering the maximum permitted number of such Holder's Notes for repurchase in
such Asset Sale Offer. Upon receipt of such Standing Instruction, the Trustee
shall deem the maximum permitted number of such Holder's Notes tendered upon the
commencement of any Asset Sale Offer. The issuing Holder may withdraw such
Standing Instruction at any time prior to the expiration of an Offer Period by
so notifying the Trustee in writing. Each Holder electing not to deliver a
Standing Instruction shall respond to the notice of an Asset Sale Offer, as set
forth in Section 3.09 of the Indenture, prior to the termination of the Offer
Period.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes may be
redeemed in part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder of Notes are to be redeemed. On and after the redemption date,
interest ceases to accrue on Notes or portions of them called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder
of a Note, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not exchange or register the transfer of any Note
or portion of a Note selected for redemption. Also, it need not exchange or
register the transfer of any Notes for a period of 15 days before a selection of
Notes to be redeemed.
10. PERSONS DEEMED OWNERS. Prior to due presentment to the Trustee
for registration of the transfer of this Note, the Trustee, any Agent and the
Issuer may deem and treat the Person in whose name this Note is registered as
its absolute owner for the purpose of receiving payment of principal of and
interest on this Note and for all other purposes whatsoever, whether or not this
Note is overdue, and neither the Trustee, any Agent nor the Issuer shall be
affected by notice to the contrary. The Holder shall be treated as its owner
for all purposes.
A-4
11. AMENDMENTS, SUPPLEMENT AND WAIVERS. Subject to certain
exceptions, the Indenture, the Notes and the Collateral Documents may be amended
or supplemented with the consent of the Required Holders, and any existing
default or compliance with any provision of the Indenture or the Notes may be
waived with the consent of the Required Holders. Without the consent of any
Holder of a Note, the Indenture, the Notes and the Collateral Documents may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Issuer's obligations to Holders of
the Notes in case of a merger or consolidation, to amend the Collateral
Documents in case of a merger or consolidation pursuant to the terms thereof, to
execute and deliver any documents necessary or appropriate to release Liens on
any Collateral as permitted by Section 10.03 of the Indenture, to make any
change that would provide any additional rights or benefits to the Holders of
the Notes or that does not materially adversely affect the legal rights under
the Indenture of any such Holder, or to comply with the requirements of the SEC
in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default include, without
limitation: the Issuer shall fail to make any payment in respect of principal
of the Notes or under Section 3.09 or 4.19 of the Indenture when the same
becomes due and payable and such failure continues for a period of 5 Business
Days after the due date of such payment or the Issuer shall fail to make any
payment when due of interest on the Notes and such failure continues for a
period of 10 days after the due date of such payment; or any representation or
warranty made or deemed made by the Issuer or any Subsidiary (or any of their
officers) under the Disclosure Statement or the Collateral Documents shall prove
to have been untrue or incorrect in any material respect when made or deemed
made; or the Issuer (or the Issuer or any Subsidiary in the case of the
Collateral Documents) shall fail to perform or observe (i) any term, covenant or
agreement contained in Article 4 (other than Section 4.07) or Article 5 of the
Indenture or (ii) any other term, covenant or agreement contained in the
Indenture, the Plan or the Collateral Documents, if such failure under this
clause (ii) shall remain unremedied for 30 days after the earlier of the date on
which (A) an Officer of the Issuer becomes aware of such failure or (B) written
notice thereof shall have been given to the Issuer by the Trustee or the
Holders; or the Issuer or any Subsidiary shall fail, after any applicable grace
period, to pay any principal of or premium, if any, or interest on any of its
Indebtedness in an amount exceeding $1,000,000 (excluding the Notes), when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), or any other event shall occur
or condition shall exist under any agreement or instrument relating to any such
Indebtedness, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Indebtedness, or any such
Indebtedness shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment), prior to the stated
maturity thereof; or the Issuer or any Material Subsidiary of the Issuer shall
generally not pay
A-5
its debts as such debts become due except such debts that are the subject of a
good faith dispute, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors,
or any proceeding shall be instituted by or against the Issuer or such
Material Subsidiary seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee or other
similar official for it or for any substantial part of its property and, in the
case of any such proceedings instituted against the Issuer or such Material
Subsidiary (but not instituted by it), either such proceedings shall remain
undismissed or unstayed for a period of 30 days or any of the actions sought in
such proceedings shall occur, or the Issuer or such Material Subsidiary shall
take any action to authorize any of the foregoing actions; or any judgment or
order for the payment of money in excess of $1,000,000 shall be rendered against
the Issuer or any Subsidiary and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order, or (ii) there shall
be any period of ten consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or except for releases of Collateral pursuant to Asset Sales in
accordance with Section 4.11 of the Indenture, the Indenture or the Collateral
Documents shall, for any reason, cease to create a valid Lien on Collateral
having a value of $1,000,000 or more purported to be covered thereby, or such
Lien shall cease to have the priority Lien status initially granted and be a
perfected Lien as to Collateral having a value of $1,000,000 or more. If any
Event of Default occurs and is continuing, the Trustee or the Required Holders
may declare all the Notes to be due and payable immediately. Holders of the
Notes may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, the Required Holders may direct the
Trustee in its exercise of any trust or power. The Required Holders, by notice
to the Trustee, may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of interest on,
or the principal of, the Notes.
13. TRUSTEE DEALINGS WITH ISSUER. The Trustee under the Indenture,
in its individual or other capacity, may make loans to, accept deposits from,
and perform services for the Issuer or its Affiliates, and may otherwise deal
with the Issuer or its Affiliates, as if it were not Trustee; however, if the
Trustee acquires any conflicting interest it must eliminate such conflict within
90 days, apply to the SEC for permission to continue as Trustee or resign.
14. NO PERSONAL LIABILITIES OF TRUSTEES, OFFICERS, EMPLOYEES AND
EQUITYHOLDERS. No trustee, officer, employee or equityholder of the Issuer or
any Guarantor, as such, shall have any liability for any obligations of the
Issuer under the Notes, the Indenture or the Collateral Documents or for any
obligations of the
A-6
Guarantors under the Guarantees or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
17. CUSIP NUMBER. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders of Notes. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
18. COLLATERAL DOCUMENTS. As provided in the Indenture and the
Collateral Documents, and subject to certain limitations set forth therein, the
Obligations of the Issuer under the Indenture and the Collateral Documents are
secured by the Collateral as provided in the Collateral Documents. Each Holder,
by accepting a Note, agrees to be bound by all terms and provisions of the
Collateral Documents, as the same may be amended from time to time. The Liens
created under the Collateral Documents shall be released upon the terms and
subject to the conditions set forth in the Indenture and the Collateral
Documents.
19. SUCCESSOR ENTITY. When a successor Person assumes all the
obligations of its predecessor under the Indenture, the Notes and the Collateral
Documents, the predecessor Person shall be released from such Obligations.
The Issuer will furnish to any Holder of a Note upon written request
and without charge a copy of the Indenture or the Collateral Documents. Request
may be made to:
Mortgage and Realty Trust
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
A-7
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
agent to transfer this Note on the books of the Issuer. The Agent may
substitute another to act for him.
Date: _________________________________
Your Signature: ________________________
(Sign exactly as your
name appears on the face
of this Note)
Signature Guarantee:
A-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by
the Issuer pursuant to Section 3.09 or Section 4.19 of the Indenture, check the
appropriate box below:
/ / Section 3.09 / / Section 4.19
If you want to have only part of this Note purchased by the Issuer
pursuant to Section 3.09 or Section 4.19 of the Indenture, state the amount you
elect to have purchased:
$ ________________
Date: _________________________________
Signature Guarantee: Your Signature: ________________________
(Sign exactly as your
name appears on the face
of this Note)
A-9
GUARANTEE
For value received, MRT West, Inc., MRT Creekside, Inc., MRT Newark,
Inc., MRT Santa ▇▇▇▇▇▇, Inc. and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. (herein called the
"Guarantors"), hereby jointly and severally unconditionally guarantee to the
Holder of the Note upon which this Guarantee is endorsed the due and punctual
payment of the principal of and interest on said Note, when and as the same
shall become due and payable, whether by declaration thereof or otherwise,
according to the terms thereof and of the Indenture referred to therein. The
Guarantors hereby agree that their obligations hereunder shall be joint,
absolute and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of said Note or said Indenture, any
failure to enforce the provisions of said Note or said Indenture, or any waiver,
modification or indulgence granted to the Issuer with respect thereof, by the
Holder of said Note or said Trustee or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or guarantor.
The Guarantors hereby waive diligence, presentment, demand of payment, filing of
claims with a court in the event of merger or bankruptcy of the Issuer, any
right to require a proceeding first against the Issuer, protest or notice with
respect to said Note or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged except by
payment in full of the principal of and interest on said Note.
The Guarantors shall be subrogated to all rights of the Holder of said
Note against the Issuer in respect of any amounts paid to such holder by the
Guarantors pursuant to the provisions of this Guarantee; PROVIDED, HOWEVER, that
the Guarantors shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of
and premium, if any, and interest on all Notes issued under said Indenture shall
have been paid in full.
This Guarantee shall not be valid or become obligatory for any purpose
until the certificate of authentication on said Note shall have been signed
manually by or on behalf of the Trustee under the Indenture referred to in said
Note.
This Guarantee shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be governed by and construed
in accordance with the laws of the State of New York.
A-10
IN WITNESS WHEREOF, each of the Guarantors has caused this Guarantee
to be duly executed in facsimile by its duly authorized officer.
MRT WEST, INC.
MRT CREEKSIDE, INC.
MRT NEWARK, INC.
MRT SANTA ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President of each
of the foregoing Guarantors
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Treasurer
----------------------------
A-11
EXHIBIT B
FORM OF ASSIGNMENT OF LEASE
(intentionally omitted)
EXHIBIT C
FORM OF COLLATERAL ASSIGNMENT OF LEASE
(intentionally omitted)
EXHIBIT C-1
FORM OF COLLATERAL ASSIGNMENT OF MORTGAGE
(begins on following page)
State: __________________
MRT No. _________________
PREPARED BY
AND WHEN RECORDED MAIL TO:
MRT COLLATERAL AGENT
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ESQ.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & FINGER
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ASSIGNMENT OF DEED OF TRUST
AND OTHER RECORDED DOCUMENTS
IN CONSIDERATION of Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the undersigned, MORTGAGE AND REALTY TRUST ("ASSIGNOR"), a
Maryland real estate investment trust, having an office at
_________________________________ _______________, does hereby grant, bargain,
sell, assign, transfer and convey unto WILMINGTON TRUST COMPANY, a Delaware
banking corporation, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (hereinafter collectively referred to
as "Assignee"), acting not in their individual capacities but solely as
Collateral Agents for the Lenders under and pursuant to the Amended and Restated
Collateral and Security Agreement (the "COLLATERAL AGREEMENT"), made as of
September 29, 1995, among Assignor, Assignee and Lenders, those certain
mortgages, deeds of trust, assignment of leases and rents, and other recorded
documents more particularly described on SCHEDULE I annexed hereto and made a
part hereof, (collectively, the "RECORDED DOCUMENTS") encumbering the property
(the "REAL ESTATE") more particularly described on EXHIBIT A annexed hereto and
made a part hereof, and all of Assignor's right, title and interest in, to and
under the Recorded Documents.
TOGETHER WITH the note or obligation described in the Recorded
Documents and the monies due and to become due thereon, with all accrued
interest thereon.
If not otherwise defined herein, capitalized terms referred to herein
shall have the meanings assigned to those terms in or by reference in the
Collateral Agreement and the Plan (as hereinafter defined).
This Assignment of Deed of Trust and Other Recorded Documents is made
(a) pursuant and subject to the terms of the Collateral Agreement and the Plan
of Reorganization Proposed by Mortgage and Realty Trust (dated July 12, 1995)
and confirmed by the Court on September 22, 1995 pursuant to the Order (1)
1
Approving Disclosure Statement and Prepetition Solicitation; and (2) confirming
the Plan of Reorganization Proposed by Mortgage and Realty Trust (as confirmed,
the "Plan"), and (b) as additional security for the payment and performance of
all of the Liabilities of the Assignor to the Lenders (including, without
limitation, repayment of the Notes, as defined and described in the Indenture).
Nothing contained herein shall be deemed to confer or create greater rights or
impose greater obligations than those rights and obligations contemplated than
those in the Collateral Agreement or the Plan.
Upon receipt by any obligor or guarantor (an "OBLIGOR") under any note
or obligation described in the Recorded Documents of notice from the Assignee,
as agent, its successors or assigns, the Obligor shall and is hereby directed
(which direction is irrevocable) to make all payments (the "PAYMENTS") under
such note or obligation to the Assignee, as agent, its successors or assigns and
the Obligor shall not be required to inquire into any such notice but may rely
thereon. Payments to the Assignee, its successors or assigns once started shall
continue until the Obligor is given different notice by the Assignee, its
successors or assigns or by court order.
The provisions of this Assignment shall be governed by the laws of the
state in which the Real Estate is located.
This instrument has been executed on behalf of the Assignor by the
________________ in his capacity as ____________________________ of Assignor.
As provided in section 7.2 of the declaration of trust of Assignor, no trustee,
officer, agent or shareholder of Assignor shall be bound or held to any personal
liability in connection with the obligations of Assignor arising out of the
execution of this instrument. The execution of this instrument by the said
individual shall not bind the said individual and he shall not be held to any
personal liability in connection with the obligations under this instrument as a
result of such execution.
2
Assignee's mailing address and address from which information
concerning its security interest may be obtained is:
MRT Collateral Agent
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed
on the _____ day of _______________, _______.
MORTGAGE AND REALTY TRUST, as
Assignor
ATTEST:
_______________________ By: _________________________
Name: Name:
Title: Title:
3
EXHIBIT D
FORM OF MORTGAGE
(begins on following page)
Recording Requested By
and When Recorded Return to:
MRT Collateral Agent
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT
AND FIXTURE FILING
from
MORTGAGE AND REALTY TRUST,
Mortgagor
to
WILMINGTON TRUST COMPANY,
a Delaware banking corporation,
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ acting not in their
individual capacities but solely as
Collateral Agents,
Mortgagee
dated as of ___________, 199___
Premises:
State: _________________________
MRT: _________
MORTGAGE, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE
FILING ("Mortgage") is made as of the _____ day of __________________, 199___,
from MORTGAGE AND REALTY TRUST, a Maryland real estate investment trust ("MRT"),
having an office at ____________________________________________________________
________________, herein called Mortgagor, and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, acting not in their
individual capacities but solely as Collateral Agents for Lenders under and
pursuant to that certain Amended and Restated Collateral and Security Agreement
made as of September 29, 1995 (the "Collateral Agreement"), herein collectively
referred to as Mortgagee, whose mailing address and address from which
information concerning its security interest may be obtained is:
MRT Collateral Agent
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If not otherwise defined herein, capitalized terms referred to herein
shall have the meanings assigned to those terms in or by reference in the
Collateral Agreement and the Plan (as hereinafter defined).
W I T N E S S E T H :
WHEREAS, Mortgagor has incurred or will incur obligations to Lenders
on certain terms and conditions as hereinafter set forth;
WHEREAS, Mortgagor owns the "Property" (as hereinafter defined)
covered by this Mortgage;
WHEREAS, Mortgagor owns and may hereafter acquire certain fixtures
located on or about the "Land" (as hereinafter defined) covered by this
Mortgage;
WHEREAS, Mortgagor, for good and valuable consideration received, has
agreed to absolutely assign the rents, issues and profits of the Property to
Mortgagee; and
WHEREAS, Mortgagor, for good and valuable consideration received, has
agreed to execute and deliver this Mortgage to secure the obligations of
Mortgagor as hereinafter set forth.
2
NOW, THEREFORE:
1. CONVEYANCE. For good and valuable consideration, the receipt of
which is hereby acknowledged, Mortgagor hereby irrevocably grants, transfers and
assigns to Mortgagee WITH MORTGAGE COVENANTS, and subject to the terms and
conditions hereinafter set forth, all of Mortgagor's right, title and interest
now held or hereafter acquired in and to the following (which, except where the
context otherwise requires, are collectively referred to as the "Property"):
(a) LAND. All that certain real property ("Land"), which is
more particularly described in Exhibit "A" attached hereto and incorporated
herein by this reference;
(b) RENTS AND OTHER INCOME. All rents, issues, profits,
royalties, income, revenues, and other benefits derived from the Property or
from the business located thereon or operated with respect thereto (collectively
the "Rents"), subject to the right, power, and authority hereinafter given to
Mortgagor to collect and apply Rents;
(c) LEASES. All leases or subleases covering the Land or any
portion thereof now or hereafter existing or entered into, and all right, title,
and interest of Mortgagor thereunder, including, without limitation, all cash or
security deposits, advance rentals, and deposits or payments of similar nature;
(d) OPTIONS. All options to purchase, lease or sublease or
otherwise acquire (i) the Land or any portion thereof or interest therein, any
greater estate in the Land now owned or hereafter acquired or (ii) any other
property of any kind adjacent to or used or to be used in connection with any of
the Property;
(e) OTHER INTERESTS. All interests, estate or other claims,
both in law and in equity, in the Land;
(f) EASEMENTS: All easements, rights-of-way or other rights,
and all tenements, hereditaments and appurtenances thereof and thereto, held or
used in connection with (i) the Land as a means of access to the Land, or (ii)
any of the Property for any purpose;
(g) MINERAL RIGHTS. All minerals, oil, gas and water on or
under the Land and all rights to extract, sever or remove any and all of the
same from the land;
(h) IMPROVEMENTS, BUSINESS RIGHTS AND FIXTURES. All buildings,
structures, improvements, equipment, fixtures, chattels, electronic machines,
machinery, apparatus, equipment, general intangibles, fittings and articles of
personal property of every kind and nature whatsoever, all appurtenances and
addi-
3
tions thereto and substitutions or replacements thereof (herein collectively
referred to as the "Fixtures"), and other articles of property now or hereafter
installed in, located on, attached to, or used or adapted or intended for use in
the operation of the Land, including, without limiting the generality of the
foregoing, all heating and incinerating apparatus and equipment whatsoever, all
boilers, engines, motors, dynamos, generating equipment, piping and plumbing
fixtures, ranges, cooking apparatus and mechanical kitchen equipment, stoves,
refrigerators, freezers, air-cooling and air conditioning apparatus,
ventilating, sprinkling and vacuum cleaning systems, communication systems, fire
extinguishing apparatus, loading and unloading equipment systems, laundry and
cleaning systems, gas and electric fixtures, lighting, switchboards, carpeting,
underpadding, rugs, elevators, escalators, partitions, mantels, built-in
mirrors, window shades, blinds, curtains, draperies, screens, storm sashes,
awnings, motor vehicles of every kind and description, furniture, furnishings of
public spaces, halls and lobbies, shrubbery and plants, books and records
relating to or employed in any business now or hereafter operated on the Land,
including all interest of Mortgagor in any of such items now or hereafter at any
time acquired under lease, conditional sale contract, chattel mortgage, or other
title retaining or security instrument; all of which property mentioned in this
paragraph, whether or not subject to any other security interest, shall be
deemed part of the Land and not severable wholly or in part without material
injury to the Land; and all rights in and to any business located or operated on
or in connection with the Land or any of the Property;
(i) OTHER FURNISHINGS AND EQUIPMENT. All other furniture,
furnishings, fixtures, appliances, machinery or equipment attached to, located
on or about, arising out of, related to, or used or adapted for use or intended
to be used in connection with the Property, including without limitation, all
model unit and sales and business furniture, furnishings, decorations,
appliances, equipment and material.
(j) ADDITIONS AND SUBSTITUTIONS. All additions, accessions,
replacements, substitutions, and renewals of or to any of the foregoing real or
personal property;
(k) OTHER CONTRACT RIGHTS. All permits, applications, licenses
and contracts to improve, use, develop, subdivide, sell, study, survey or
appraise any of the Land and all contracts, plans and specifications including
all amendments, modifications, supplements, general conditions and addenda
thereof or thereto, prepared by or under the supervision of any architect,
engineer, surveyor or appraiser for the account of Mortgagor in connection with
the use or development of, or construction of improvements on or to, any of the
Land;
4
(l) PERMITS AND APPROVALS. All use permits, rights under
tentative, preliminary or final maps, subdivision applications and all other
zoning, regulatory and use approvals and permits including extension, renewal
and modification rights, relating to the use, development or sale of any of the
Property;
(m) PROFESSIONAL CONTRACT RIGHTS. All contracts with property
managers, real estate advisors and consultants, real estate brokers and other
like agents and professionals, which relate to any of the Property or any
improvements contracted or to be constructed thereon, and all maps, reports,
surveys and studies of or relating to any of the Property or any improvements
constructed or to be constructed thereon, now or hereafter in the possession of
Mortgagor, or in the possession of any such agent or professional;
(n) PROCEEDS. All proceeds including insurance and condemnation
proceeds and products of any and all of the foregoing and any and all right,
title or interest that Mortgagor may hereafter acquire in and to any of the
foregoing;
(o) BOOKS AND RECORDS. All books and records pertaining to any
of the Property including, without limitation, all computer hardware and
software and all equipment and tangible personal property in which such books
and records are kept.
Notwithstanding that this Mortgage is granted with Mortgage Covenants,
Mortgagor and Mortgagee hereby expressly agree that Mortgagor does not covenant
or represent as follows:
(1) that the granted premises are free from all encumbrances;
and
(2) that the Mortgagor will together with heirs, executors,
administrators and successors warrant and defend the same to the Mortgagee and
its heirs, successors and assigns forever against the lawful claims and demands
of all persons.
2. ASSIGNMENT OF RENTS. Mortgagor absolutely and unconditionally
assigns to Mortgagee the Rents upon the terms and conditions hereinafter set
forth. This assignment is absolute, primary and direct and is not intended to
be a separate or secondary pledge, or other form of additional security, and no
further act or step is or shall be required of Mortgagee to perfect this
assignment. This assignment shall not impose upon Mortgagee any duty to cause
the Property to produce any Rents nor shall Mortgagee be deemed to be a
mortgagee-in-possession by reason thereof for any purpose.
3. OBLIGATIONS SECURED BY THIS MORTGAGE. This Mortgage secures the
following obligations (collectively, the "Secured Obligations"):
5
(a) MORTGAGE. The performance of each and every agreement,
obligation, or covenant of Mortgagor herein contained or incorporated by
reference;
(b) SECURED OBLIGATIONS. Prompt payment and performance of
(i) all now existing and hereafter arising "Liabilities" of Mortgagor as defined
in and secured by the Collateral Agreement (including, without limitation,
repayment of the Notes, as defined and described in the Indenture), (ii) any and
all other obligations, liabilities or indebtedness of Mortgagor to Mortgagee,
however incurred, whether absolute or contingent and whether now existing or
hereafter arising contained in any agreement reciting that it is so secured, and
(iii) any extensions, modifications, renewals or substitutions of any of the
foregoing, including, without limitation, any new or additional promissory notes
or loan documents executed in connection therewith;
(c) OTHER DOCUMENTS. Performance of each and every agreement,
obligation, or covenant of Mortgagor contained in any of the Documents,
including, without limitation the Plan of Reorganization Proposed by Mortgage
and Realty Trust (dated July 12, 1995) and confirmed by the Court on September
22, 1995 pursuant to the Order (1) Approving Disclosure Statement and
Prepetition Solicitation; and (2) Confirming the Plan of Reorganization Proposed
by Mortgage and Realty Trust (as confirmed, the "Plan").
(d) ADDITIONAL SUMS. Payment of such further sums or advances
as Mortgagor or the then record owner of the Property may hereafter become
obligated to pay to Lenders or Mortgagee or their successors and assigns, when
evidenced by a Promissory Note or other instrument or agreement reciting that it
is so secured hereby.
TO PROTECT THE SECURITY OF THIS MORTGAGE AND TO EFFECT THE FOREGOING ASSIGNMENT
OF RENTS, THE PARTIES AGREE AS FOLLOWS:
4. COVENANTS AND REPRESENTATIONS OF MORTGAGOR. Mortgagor shall
perform and observe all covenants and representations applicable to the Property
or any of it contained in the Plan and the Collateral Agreement.
5. PAYMENT AND PERFORMANCE OF CREDITOR OBLIGATIONS. Mortgagor shall
pay the creditor obligations (as defined in the Plan) at the times and places
and in the manner specified in the Plan. Mortgagor shall perform all the
Liabilities in accordance with the provisions of the Plan. Mortgagor shall
perform all obligations contained in the Documents.
6
6. PAYMENT OF IMPOSITIONS.
(a) Subject to the provisions of subparagraph (c), below,
Mortgagor shall pay and discharge all taxes of every kind and nature (including,
without limitation, all real and personal property taxes and assessments,
income, franchise, withholding, profits and gross receipts taxes), all general
and special assessments, levies, permits, inspection and license fees, all water
and sewer rents and charges and other public charges whether of a like or
different nature, foreseen or unforeseen, ordinary or extraordinary, public or
private, imposed upon or assessed against Mortgagor or any of the Property
(including without limitation, any of the Property which is affixed to the Land,
or used in connection therewith and owned by the Mortgagor) and other space
beyond the lot line and on or abutting the public sidewalks in front of or
adjoining the Land (to the extent that the Mortgagor is liable therefor), or
arising in respect of the occupancy, use or possession thereof, together with
any penalties, late charges or interest on any of the foregoing (all of the
foregoing are hereinafter collectively referred to as the "Impositions").
(b) subject to the provisions of subparagraph (c) below, nothing
herein shall affect the right or remedy of Mortgagee under this Mortgage or
otherwise to pay any Imposition as and when provided by the terms of the
Collateral Agreement or the Plan. Any sums paid by or on behalf of Mortgagee in
discharge of any Impositions shall (i) constitute a lien and charge upon all the
Property and (ii) be payable by Mortgagor pursuant to the terms of the
Collateral Agreement. Nothing contained in this Mortgage shall be deemed to
waive or impair any right of Mortgagee to be subrogated to the rights of the
payee of any Imposition.
(c) The Plan and Collateral Agreement shall govern Mortgagor's
obligation to pay Impositions, including the right of Mortgagor to contest same,
or the liability of Mortgagor to Mortgagee for any payment pursuant to
subparagraph (b), above.
7. INSURANCE. As and to the extent required by the Plan or the
Collateral Agreement, Mortgagor shall maintain insurance for the Property and
name Mortgagee as an additional loss payee. Proceeds of insurance shall be
governed by the terms of the Plan and Collateral Agreement.
8. NO ENCUMBRANCES. Mortgagor shall not create, consent to or
suffer the creation of any lien, claim, charge, encumbrance, security interest
or levy on or in any of the Property other than as permitted under the Plan and
Collateral Agreement.
7
9. LEASES.
(a) Leases, licenses, contracts for hire or rental agreements
pertaining to the use or occupancy of any of the Property entered into at any
time by Mortgagor or any predecessor to Mortgagor, as landlord or lessor, and
any other party, as tenant or lessee, shall hereinafter be referred to as
"Tenant Leases." Mortgagor represents that the Tenant Leases more fully
described on Exhibit B hereto constitute all the Tenant Leases in existence as
of the date hereof.
(b) Mortgagor shall receive Rents, in trust for the benefit of
Mortgagee, for the purpose of paying the Secured Obligations and any other costs
associated with the performance of the Liabilities then due, if any; provided,
however, that nothing contained in this subparagraph shall impair any right of
Mortgagor to retain or use Rents under the terms of the Plan.
(c) Mortgagor shall (i) give written notice to Mortgagee (as
part of Mortgagor's normal reporting under the terms of the Plan) of the
entering into of any new Tenant Lease, including a copy thereof and (ii) upon
the written request of Mortgagee, and, only where required by the law applicable
to such Tenant Lease in order to perfect Mortgagee's lien upon or rights to such
Tenant Lease, execute, acknowledge and deliver, in form satisfactory to
Mortgagee, one or more separate assignments of the lessor's interest under any
Tenant Lease. Mortgagor shall pay to Mortgagee the expenses incurred by
Mortgagee in connection with the preparation and recording of any such
instrument.
10. EMINENT DOMAIN; CONDEMNATION. Mortgagor shall give prompt
written notice to Mortgagee of any condemnation or eminent domain proceeding
affecting the Property. Proceeds of any condemnation or eminent domain
proceeding affecting the Property shall be governed by the terms of the Plan and
Collateral Agreement.
11. FURTHER ASSURANCES/ESTOPPEL CERTIFICATES. As and to the extent
required by the Collateral Agreement, Mortgagor shall do, execute, acknowledge
and deliver, at the sole cost and expense of Mortgagor, all and every such
further acts, deeds, conveyances, mortgages, deeds of trust, assignments,
estoppel certificates, notices of assignment, transfers and assurances as
Mortgagee may reasonably require from time to time in order to better assure,
convey, assign, transfer, record, perfect or confirm unto Mortgagee, the rights
intended to be granted to the Mortgagee, as the case may be, under this
Mortgage, or any of the Documents. Mortgagor hereby appoints Mortgagee its
attorney-in-fact with the power to execute, acknowledge or deliver any document,
agreement or instrument to which Mortgagee is entitled pursuant to this section.
The power granted to Mortgagee in this section shall be coupled with an interest
and shall be irrevo-
8
cable until such time as Mortgagee voluntarily releases its rights hereunder.
12. MORTGAGOR'S EXISTENCE. Mortgagor shall do all things necessary
to preserve and keep in full force and effect its existence, franchises, rights
and privileges under the laws of the State in which the Property is located and
its right to own property and transact business in such State.
13. CHANGE OF NAME. Mortgagor shall not change its name or address
of its chief executive office without giving thirty (30) days prior notice to
Mortgagee.
14. RIGHT OF INSPECTION. Mortgagee, or its agent or employees, may
enter upon the Property at any reasonable time for the purpose of inspecting
same and ascertaining the compliance of Mortgagor with the terms hereof.
15. INTENTIONALLY OMITTED.
16. INTENTIONALLY OMITTED.
17. COLLECTION OF RENTS, ISSUES AND PROFITS. Mortgagee confers upon
Mortgagor the authority to collect and retain the Rents as they become due and
payable; PROVIDED, HOWEVER, that Mortgagee may at any time after the occurrence
of a Default (as hereinafter defined) and without regard to the value of the
security, in Mortgagee's sole discretion and without notice to Mortgagor, revoke
said authority and may collect and retain any or all of the Rents, without
taking possession of all or any part of the Property. The right to collect
Rents as herein provided shall not be deemed to grant to Mortgagee the right to
possession of the Property, except as expressly herein provided, or to impose
upon Mortgagee the duty to produce any Rents or maintain the Property in whole
or in part. Any Rents collected by Mortgagee may be applied by Mortgagee, in
its sole discretion, against any of the Secured Obligations whether now existing
or hereafter arising. Collection of any Rents by Mortgagee shall not waive any
other right or remedy of Mortgagee hereunder or any notice of default given
hereunder or invalidate any acts done pursuant to notice.
18. DEFAULTS. The occurrence of any Event of Default under (and as
defined and particularly described in) the Plan and Collateral Agreement shall
constitute a default (a "Default") by Mortgagor hereunder.
19. RIGHTS AND REMEDIES. Following the occurrence of a Default and
upon the instruction of Lenders pursuant to the Plan, Mortgagee, in its sole
discretion, shall have any and all of the following rights and remedies without
regard to the adequacy of any security for the obligations and indebtedness
hereby secured:
9
(a) ACCELERATION OF MATURITY. In accordance with the Plan, to
declare the Liabilities immediately due and payable, without presentment,
demand, protest or further notice of any kind, all of which are expressly waived
by Mortgagor. Any Acceleration may be rescinded and annulled by Lenders
pursuant to Lenders Action. No such rescission and annulment shall affect any
subsequent Default or Acceleration or impair any right of any Lender with
respect to any subsequent Default or Acceleration;
(b) PERFORMANCE OF MORTGAGEE. With or without notice and
without releasing Mortgagor from any obligation hereunder, to cure any default
under any agreement affecting the security hereof and in connection therewith to
enter upon the Property and do such acts and things as Mortgagee deems necessary
or desirable to protect the security hereof including (i) appear in and defend
any action or proceeding purporting to affect the security hereof or the rights
or powers of Mortgagee hereunder, (ii) pay, purchase, contest or compromise any
encumbrance, charge, lien or claim of lien as and to the extent authorized by
the terms of the Plan and Collateral Agreement, (iii) pay any premium or charge
with respect to insurance required to be carried hereunder or in the Plan or
Collateral Agreement, or (iv) employ counsel, accountants, contractors and other
appropriate persons to assist either of them;
(c) PROCEEDINGS. To commence and maintain an action or actions,
or other case or proceeding, in any court of competent jurisdiction, to
foreclose this instrument as a mortgage, for appointment of a receiver, or for
specific enforcement of the covenants of Mortgagor hereunder, and Mortgagor
agrees that such covenants shall be specifically enforceable by injunction or
any other appropriate equitable remedy;
(d) POSSESSION OF PROPERTY; APPOINTMENT OF RECEIVER.
Irrespective of whether Mortgagee exercises the option provided in subparagraph
(a) above, to enter upon, take possession of, manage and operate the Property or
any part thereof in person or by agent or by court-appointed receiver; to make,
terminate, enforce or modify leases of the Property upon such terms and
conditions as Mortgagee deems proper, make repairs, alterations and improvements
to the Property or develop the Property, for the purpose of protecting or
enhancing the security hereof, and Mortgagor agrees to pay all expenses of
action so taken only as and to the extent required by the Collateral Agreement
and the Plan and the payment thereof shall be secured hereby. All sums realized
by Mortgagee hereunder, less all costs and expenses, including reasonable
attorneys' fees, and less such sum as Mortgagee deems necessary and appropriate
as a reserve to meet such future expenses, shall be applied upon any
indebtedness secured hereby in such order as Mortgagee, in its sole discretion,
shall determine. Neither application of said sums to said indebtedness nor any
other action taken by Mortgagee hereunder shall waive any other right or remedy
of Mortgagee
10
hereunder or any notice of default hereunder or nullify the effect of any such
notice of default. Any action taken under this subparagraph may be taken by
Mortgagee or any employee or agent of Mortgagee with or without bringing any
action or proceeding, or may be taken by a receiver appointed by a court, and
any such action may be taken without regard to the adequacy of the security for
the indebtedness secured hereunder and whether or not notice of default has been
recorded, and Mortgagor consents to the appointment of a receiver hereunder;
(e) SALE OF PROPERTY. Without prior notice to Mortgagor, to
execute a written notice of such default and of Mortgagee's election to cause
the Property to be sold to satisfy all or any of the Secured Obligations. Such
notice of sale shall be given and recorded as then required by law as a
condition for conducting a sale by Mortgagee. When the minimum period of time
required by law after such notice has elapsed, Mortgagee, without demand on
Mortgagor, shall sell the Property at the time and place of sale fixed by it in
the notice of sale, either as a whole or in separate parcels and in such order
as it or Mortgagee may determine, at a public auction to the highest bidder for
cash in lawful money of the United States, payable at time of sale. Mortgagee
may hold one or more sales of all or any portion of the Property by public
announcement at such time and place of sale, and from time to time thereafter
may postpone such sale or sales of all or any portion of the Property by public
announcement at such time fixed by the preceding postponement. Mortgagee shall
deliver to the Purchaser at such sale or sales its deed or ▇▇▇▇ of sale
conveying the property so sold, but without any covenant or warranty, express or
implied. The recitals in such deed or ▇▇▇▇ of sale of any matters or facts
shall be conclusive proof of the truthfulness thereof. Any person including
Mortgagor or Mortgagee may purchase at such sale. If Mortgagee is the
successful purchaser, it may apply any of the outstanding obligations secured
hereby in settlement of the purchase price. After deducting all costs, fees and
expenses of Mortgagee and of this Mortgage, including costs of evidence of title
and reasonable attorneys' fees in connection with such sale, Mortgagee shall, if
permitted by applicable law, apply the proceeds of sale, if any, to payment of
(i) all sums expended by or on behalf of Mortgagee under the terms hereof not
then repaid, with accrued interest thereon at the legal rate, (ii) the payment
of the Secured Obligations pursuant to the instructions of Mortgagee, and (iii)
the remainder, if any, to the person or persons legally entitled thereto.
20. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT AND FINANCING
STATEMENT. This Mortgage is a security agreement and financing statement
pursuant to the Uniform Commercial Code for any of the items specified above as
part of the Property which, under applicable law, may be subject to a security
interest pursuant to the Uniform Commercial Code, and Mortgagor hereby grants
Mortgagee a security interest in said terms. This
11
Mortgage is filed as a fixture filing and covers goods which are or are to
become fixtures. The address of Mortgagee (secured party) from which
information concerning the security interest may be obtained and the mailing
address of Mortgagor (debtor) are set forth on the first page of this Mortgage.
The types, or items, of collateral are described in Paragraph 1 of this
Mortgage. Mortgagor agrees that Mortgagee may file any appropriate document in
the appropriate index as a financing statement for any of the items specified
above as part of the Property. In addition, Mortgagor agrees to execute and
deliver to Mortgagee, upon Mortgagee's request, any financing statements, as
well as extensions, renewals and amendments thereof, and reproductions of this
instrument 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 said
items, including replacements and additions thereto except as otherwise
expressly permitted in the Collateral Agreement or Plan. Upon a Default,
Mortgagee shall have the remedies of a secured party under the Uniform
Commercial Code and, at Mortgagee's option, may also invoke the other remedies
provided in this Mortgage and the Collateral Agreement as to such items. In
exercising any of said remedies, Mortgagee may proceed against the items of real
property and any items of personal property specified above as part of the
Property separately or together and in any order whatsoever, without in any way
affecting the availability of Mortgagee's rights or remedies under the Uniform
Commercial Code or of the other remedies provided in this Mortgage, in the
Collateral Agreement, or by law.
TO MAKE MORTGAGEE'S RIGHT TO ENFORCE REMEDIES HEREUNDER MORE FLEXIBLE AND
EFFECTIVE, THE PARTIES ADDITIONALLY AGREE:
21. REMEDIES CUMULATIVE. All rights and remedies of Mortgagee
hereunder are cumulative and in addition to all rights and remedies provided by
law and by the Collateral Agreement.
22. MARSHALLING. Mortgagor hereby waives any marshalling equity or
other right to inhibit, delay or restrict any sale or other disposition of the
Property or any part thereof by Mortgagee or to direct the order of such sale or
sales or other disposition.
23. NOTICE OF SALE. Any power granted to Mortgagee in this Mortgage
may be exercised, pursuant to a single notice of trustee's sale, separately with
respect to each and every item or parcel of Property or with respect to groups
and assemblages of Property, in Mortgagee's sole discretion, and may be
exercised on
12
separate days or at separate times or in separate places; the exercises of such
power of sale shall not be an action for purposes of any law or statute
pertaining to actions to enforce secured transactions.
24. JURY TRIAL. Each of the parties hereto waives any right it may
have to trial by jury.
BECAUSE COLLATERAL FOR THE SECURED OBLIGATIONS IS LOCATED IN DIFFERENT STATES,
THE MORTGAGOR AGREES TO WAIVE CERTAIN ADDITIONAL RIGHTS RESPECTING THE
ENFORCEMENT OF REMEDIES, AS FOLLOWS:
25. REDEMPTION AND VALUATION. As and to the fullest extent permitted
by law, Mortgagor waives any statutory right of redemption following any sale or
other disposition of Property by Mortgagee and any right to have Property which
is sold or otherwise disposed of by Mortgagee valued after such sale or
disposition, so that the total deficiency then remaining may be bid in any order
and in any party by Mortgagee at any other sale until the debt is satisfied in
full or the final deficiency then remaining shall be reducible to judgment
against Mortgagor by any court of competent jurisdiction; provided that the
value of the Property sold or otherwise disposed of by Mortgagee shall, to the
extent required by the law of the jurisdiction in which such Property is
located, be taken into account before entering a deficiency judgment against
Mortgagor.
26. DEFENSES. Any defense available to Mortgagor with respect to or
as a result of a sale or other disposition of any Property pursuant to this
section within one state shall not be available to Mortgagor with respect to any
Property located in any other state.
27. SALE OF PROPERTY. Following the occurrence of a Default and upon
the instruction of Lenders pursuant to the Plan, Mortgagee shall be entitled to
sell or dispose of any Property or any part thereof pursuant to this Mortgage in
any order and in any state or states, whether privately or by court proceeding
for foreclosure, seizure, appointment of receiver or otherwise, without regard
to any substantive or procedural defense, pleading bar, sanction or other remedy
which would otherwise be available to Mortgagor affecting Mortgagee's sole
discretion to sell or dispose of the Property or any part thereof in one action
rather than in multiple actions, en masse rather than by parcel, or in
satisfaction of all the indebtedness then secured by such Property rather than
of any part of the indebtedness designated by the Mortgagee in its sole
discretion, and for that purpose, and as and to the extent required to make the
remaining waivers, representations and agreements set forth in this section and
permitted by law, Mortgagor hereby disclaims any right and waives any defense
under:
13
(a) California Code of Civil Procedure Section 580d, concerning
the bar against rendition of a deficiency judgment after foreclosure under a
power of sale,
(b) California Code of Civil Procedure Section 726, concerning
the form of foreclosure proceedings with respect to real property security
located in California,
(c) California Civil Code Section 1479, concerning the
application of general performance under several obligations to one creditor,
(d) California Civil Code, Section 2924g, concerning the conduct
of trustee's sales,
(e) California Civil Code Section 3433, concerning the relative
rights of different creditors interested in the same property, and
(f) Any laws or equitable principles in any other states in the
United States of America similar to the laws delineated in subparagraphs (a),
(b), (c), (d), and (e) above.
GENERAL PROVISIONS
28. NON-WAIVER.
(a) By accepting payment of any amount after its due date or
late performance of any obligation secured hereby, Mortgagee will not waive its
right either to require prompt payment when due of any other amounts or prompt
performance of any other obligations so secured or to declare a default for
failure to pay or perform when due. No exercise of any right or remedy by
Mortgagee hereunder shall constitute a waiver of any other right or remedy
herein contained or provided by law.
(b) No waiver by Mortgagee will be effective unless it is in
writing and then only to the extent specifically stated. Without limiting the
generality of the foregoing, any payment made by the Mortgagee for insurance
premiums, Impositions or any other charges affecting the Property, shall not
constitute a waiver of Mortgagor's default in making such payments and shall not
obligate Mortgagee to make any further payments.
(c) Mortgagor agrees that in the event that any or all of such
Property is sold subject to this Mortgage and Mortgagee enters into any
agreement with the then owner of such Property respecting, or extending the time
for, payment of all or any part of the Secured Obligations, or otherwise
modifying any of the terms hereof, Mortgagor shall continue to be liable for the
Secured Obligations pursuant to the terms of the Plan and Collateral Agreement.
14
29. INTENTIONALLY OMITTED.
30. SUCCESSORS AND ASSIGNS. The word "Mortgagee" hereunder means the
Mortgagee named herein or any successor in interest thereto. This Mortgage is
binding upon and inures to the benefit of any successor to or assignee of any
party hereto.
31. RULES OF CONSTRUCTION. Except as otherwise specifically provided
in this Mortgage, the singular of any term shall include the plural; the use of
any term shall be equally applicable to any gender; "or" shall not be exclusive;
and "including" shall not be limiting. Specific enumeration of rights, powers
and remedies of Mortgagee and of acts which it may do and of acts to be done and
not to be done by Mortgagor is not to be deemed to exclude or limit the general.
The captions, headings and arrangements used in this Mortgage are for
convenience only and do not in any way affect, limit, amplify or modify the
terms and provisions hereof.
32. LITIGATION RIGHTS. To the extent authorized in the Collateral
Agreement, Mortgagee shall have the right (a) to appear in and defend any action
or proceeding, in the name and on behalf of Mortgagor which Mortgagee, in its
sole discretion, determines may adversely affect the Property or this Mortgage;
and (b) to institute any action or proceeding which Mortgagee, in its
discretion, feels should be brought to protect its interest in the Property or
their respective rights hereunder. All costs and expenses incurred by Mortgagee
in connection with such actions or proceedings, including, without limitation,
reasonable attorneys' fees and costs shall be paid by Mortgagor, on demand.
33. ATTORNEYS' FEES. Mortgagor shall be liable for any attorneys'
fees or costs incurred by Mortgagee with regard to the collection, perfection or
enforcement of any right or remedy provided for herein pursuant to the
provisions of the Plan and Collateral Agreement.
34. SEVERABILITY. If any term of this Mortgage or the application
thereof to any person or circumstances shall to any extent be invalid, illegal
or unenforceable, the remainder of this Mortgage shall not be affected thereby
and each term of this Mortgage shall be valid and enforceable to the fullest
extent permitted by law and to persons or circumstances other than those as to
which it is invalid, illegal and unenforceable.
35. MERGER. The lien of this Mortgage shall not merge with the lien
of any other mortgage or Mortgage created by Mortgagor or the then record owner
of the Property for the benefit of Mortgagee or otherwise held or acquired by
Mortgagee and encumbering all or any portion of the Property.
36. APPLICABLE LAW AND JURISDICTION. This Mortgage and the rights
and remedies of the parties hereto in respect of
15
the Property shall be governed by, and construed and interpreted in accordance
with, the internal laws (as opposed to conflicts of law provisions) of the
Commonwealth of Pennsylvania. The parties hereto hereby submit to the
jurisdiction of the courts of the Commonwealth of Pennsylvania. However, to the
extent the Commonwealth of _____________ law requires its law to be applicable
for purposes of enforcement of Lenders' remedies with respect to the Property,
then for such limited purpose the law of the Commonwealth of _____________ shall
apply; PROVIDED, HOWEVER, that where the Commonwealth of _____________ permits
or otherwise does not prohibit the parties to waive the applicability of
_____________ law, the parties hereby waive applicability or _____________ law.
37. NOTICES. Whenever it is provided herein that notice, demand,
request, consent, approval or other communication shall or may be given to or
served upon either Mortgagor or Mortgagee by the other, or whenever either of
such parties desire to give or serve upon the other any notice, demand, request,
consent approval or other communication with respect to this Mortgage to the
Property, each such notice, demand, request, consent, approval or other
communication shall be in writing (including by telex transmission) and shall be
deemed to have been sufficiently given or served for all purposes when actually
delivered or, in the case of telex notice, when sent, answer back received, or
in the case of notice by facsimile transmission, when received telephonically
confirmed in the manner set forth in the Collateral Agreement, or to such other
address as may be substituted by notice given as herein provided.
38. RELEASES. This Mortgage is subject to being released in whole or
in part upon the happening of certain events, as more fully set forth in the
Collateral Agreement.
39. INTENTIONALLY OMITTED.
40. CONSISTENCY WITH PLAN. The parties hereto agree that all actions
taken by the parties hereto and all interpretations of all terms and provisions
hereof shall be taken or interpreted (as the case may be) in a manner consistent
with the Plan. The provisions of section 36, above, are hereby deemed to be
consistent with the Plan.
41. EXECUTION OF THIS MORTGAGE. This Mortgage has been executed on
behalf of the Mortgagor by the ____________ in his capacity as
______________________________ Mortgagor. As provided in section 7.2 of the
declaration of trust of Mortgagor, no trustee, officer, agent or shareholder of
Mortgagor shall be bound or held to any personal liability in connection with
the obligations of Mortgagor arising out of the execution of this Mortgage. The
execution of this Mortgage by the said individual shall not bind the said
individual and he shall not be held to
16
any personal liability in connection with the obligations under this Mortgage as
a result of such execution.
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as a sealed
instrument as of the day and year set forth above. Mortgagor hereby requests
that a copy of any notice of default and any notice of sale hereunder be mailed
to it at its address set forth on the first page of this Mortgage.
("Mortgagor")
MORTGAGE AND REALTY TRUST,
a Maryland real estate
investment trust
By:_____________________________
Title:__________________________
17
EXHIBIT D-1
FORM OF AMENDMENT TO MORTGAGE
(begins on following page)
STATE:________________________
MRT No.________________________
Prepared By
and When Recorded Return to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SECOND AMENDMENT TO
DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
-------------------------------------
NOTE: Pursuant to Section 1146(c) of the United States Bankruptcy
Code, the filing and recording of this instrument shall not be subject to any
stamp, real estate transfer, mortgage, recording or other similar tax.
THIS SECOND AMENDMENT TO DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING (this "SECOND AMENDMENT") is made as of September
29, 1995, by and between MORTGAGE AND REALTY TRUST (alternatively referred to
herein as either "MRT" or "TRUSTOR"), a Maryland real estate investment trust,
having an office at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, and WILMINGTON TRUST COMPANY, a Delaware banking corporation, and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, acting not in their individual capacities but solely as
Collateral Agents for Lenders under and pursuant to the Collateral Agreement
(hereinafter defined) (Wilmington Trust Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, together,
"BENEFICIARY"), whose mailing address and address from which information
concerning its security interest may be obtained is MRT Collateral Agent, c/o
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Unless otherwise defined herein, capitalized terms shall have the
meanings ascribed thereto in the Collateral Agreement or, if not otherwise
defined therein, the Indenture.
W I T N E S S E T H
WHEREAS, in accordance with that certain Joint Plan of Reorganization
of MRT dated November 19, 1990, and confirmed on February 27, 1991 by the United
States Bankruptcy Court for the Central District of California (as heretofore
amended, the "1990 PLAN"), and that certain Collateral and Security Agreement
dated as of February 21, 1991 (the "ORIGINAL COLLATERAL AGREEMENT"), MRT
delivered to Beneficiary that certain Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing (the "ORIGINAL DEED
OF TRUST"), more particularly described on the attached SCHEDULE "I", which
Original Deed of Trust encumbers certain real property more particularly
described on the attached EXHIBIT "A";
WHEREAS, MRT entered into Amendment No. 2 to Plan of Reorganization
(the "1992 PLAN AMENDMENT") dated as of July 15, 1992, pursuant to which MRT
amended the 1990 Plan to, among other things, alter certain payment provisions
with respect to the Creditor Obligations under the 1990 Plan, and amend or add
certain other covenants and provisions of the 1990 Plan;
WHEREAS, pursuant to the 1992 Plan Amendment, (i) MRT, Beneficiary and
Lenders amended the Original Collateral Agreement by that certain First
Amendment to Collateral and Security Agreement (the "1992 AMENDMENT TO
COLLATERAL AGREEMENT") dated as of July 15, 1992 (the Original Collateral
Agreement, as amended by the 1992 Amendment to Collateral Agreement, the "1992
COLLATERAL AGREEMENT"), (ii) MRT and Beneficiary entered into that certain
Indenture dated as of July 15, 1992 (the "1992 INDENTURE"), and (iii) MRT and
Beneficiary amended the Original Deed of Trust by that certain First Amendment
of Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing
dated as of July 15, 1992 (the "FIRST AMENDMENT TO DEED OF TRUST") (the Original
Deed of Trust, as amended by the First Amendment to Deed of Trust, the "DEED OF
TRUST");
WHEREAS, in accordance with that certain Plan of Reorganization
proposed by Mortgage and Realty Trust (dated July 12, 1995), and confirmed on
September 22, 1995 by the United States Bankruptcy Court for the Central
District of California pursuant to the Order (1) Approving Disclosure Statement
and Prepetition Solicitation; and (2) Confirming the Plan of Reorganization
Proposed by Mortgage and Realty Trust (as confirmed, the "1995 PLAN"), MRT
modified the term and reduced the principal amount of indebtedness due to
Holders and, to evidence such reduced principal amount, issued replacement Notes
in the aggregate principal amount of $110,000,000 (the "NOTES");
WHEREAS, pursuant to the 1995 Plan, (i) MRT, Beneficiary and Holders
modified the 1992 Collateral Agreement by that certain Amended and Restated
Collateral and Security Agreement (the "1995 AMENDED COLLATERAL AGREEMENT")
dated as of September 29, 1995 (the 1992 Collateral Agreement, as amended by the
1995 Amended Collateral Agreement, the "COLLATERAL AGREEMENT"), and (ii) MRT and
Beneficiary entered into that certain Amended and Restated Indenture dated as of
September 29, 1995 (the "INDENTURE"), which Indenture supersedes and replaces
in its entirely the 1992 Indenture; and
WHEREAS, the parties hereto desire to amend the Deed of Trust to
reflect the amendments and modifications set forth in
2
the 1995 Plan, the Indenture and the 1995 Amended Collateral Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree
that the Deed of Trust is amended as follows:
1. REFERENCES. All references in the Deed of Trust to the
"Collateral Agreement" are hereby deemed to refer to the Original Collateral
Agreement as amended by the 1992 Amendment to Collateral Agreement and as
amended and restated by the 1995 Amended Collateral Agreement; all references in
the Deed of Trust to the "Plan" are hereby deemed to refer to the 1995 Plan. In
each instance where the Deed of Trust is to be governed by, or is subject to,
the terms of the Plan or the Collateral Agreement, the Deed of Trust shall also
be governed by, or be subject to, the terms of the Indenture. The Deed of Trust
is hereby incorporated herein by this reference (subject to the modifications
set forth in this Second Amendment), and Trustor hereby restates the grants,
assignments and conveyances made by Trustor in the Deed of Trust as if set forth
in their entirety herein, it being the intent of the parties hereto that the
Deed of Trust, as amended hereby, secures and shall continue to secure the
Liabilities of MRT (including, without limitation, repayment of the Notes) under
and pursuant to (i) the 1990 Plan, as amended by the 1992 Plan Amendment and as
further modified by the 1995 Plan, (ii) the Original Collateral Agreement, as
amended by the 1992 Amendment to Collateral Agreement and as amended and
restated by the 1995 Amended Collateral Agreement, and (iii) the Deed of Trust,
as amended by this Second Amendment.
2. RATIFICATION OF LIEN. Neither this Second Amendment, the 1995
Plan, the Indenture, the reissuance of the Notes in replacement form nor the
1995 Amended Collateral Agreement extinguishes, terminates or acts as a novation
of (or will be deemed to extinguish, terminate or act as a novation of) the Deed
of Trust or the lien created thereby, or otherwise adversely affects or
otherwise impairs the lien created by the Deed of Trust, and the Deed of Trust
and the lien created thereby is hereby ratified and confirmed in all respects
and remains validly existing and in full force and effect. For purposes of the
Deed of Trust, as amended by this Second Amendment, the term "Liabilities" shall
not impose on MRT any greater indebtedness, liability or obligation than as such
term was defined prior to the date of this Second Amendment.
3. NO IMPOSITION OF PERSONAL LIABILITY. This Second Amendment has
been executed on behalf of Trustor by the Treasurer and Chief Financial Officer
in his capacity as an officer of Trustor. As provided in section 7.2 of the
declaration of trust of Trustor, no trustee, officer, agent or shareholder of
Trustor shall be bound or held to any personal liability in connection
3
with the obligations of Trustor arising out of the execution of this Second
Amendment. The execution of this Second Amendment by the said individual shall
not bind the said individual and he shall not be held to any personal liability
in connection with the obligations under this Second Amendment as a result of
such execution.
4. COUNTERPARTS. This Second Amendment may be executed in any
number of counterparts and by different parties in separate counterparts, copies
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
5. RATIFICATION OF ORIGINAL DEED OF TRUST. Except as amended
hereby, the Deed of Trust is ratified and confirmed in all respects.
[SIGNATURES ON NEXT PAGE]
4
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by their respective duly authorized officers or other
representatives as of the day and year first above written.
TRUSTOR:
MORTGAGE AND REALTY TRUST, a Maryland real estate
investment trust
By: ____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer and Chief
Financial Officer
BENEFICIARY:
WILMINGTON TRUST COMPANY, a Delaware banking
corporation, not in its individual capacity but
solely as Collateral Agent for Lenders
By: ____________________________
Name: ▇▇▇▇ ▇. St. Amand
Title: Assistant Vice President
________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, not in his
individual capacity but solely as
Collateral Agent for Lenders
5
Schedule "I"
------------
Description of Security Document
PROPERTY NO: _____
COUNTY AND STATE: _____
Schedule I-1
Exhibit "A"
-----------
Description of the Real Estate
PROPERTY NO:______
COUNTY AND STATE: ______
A-1
[attach acknowledgments]
STATE:________________________
MRT No._______________________
Prepared By
and When Recorded Return to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SECOND AMENDMENT TO ASSIGNMENT
OF MORTGAGE AND OTHER RECORDED DOCUMENTS
----------------------------------------
NOTE: Pursuant to Section 1146(c) of the United States Bankruptcy
Code, the filing and recording of this instrument shall not be subject to any
stamp, real estate transfer, mortgage, recording or other similar tax.
THIS SECOND AMENDMENT TO ASSIGNMENT OF MORTGAGE AND OTHER
RECORDED DOCUMENTS (this "SECOND AMENDMENT") is made as of September 29, 1995 by
and between MORTGAGE AND REALTY TRUST (alternatively referred to herein as
either "MRT" or "ASSIGNOR"), a Maryland real estate investment trust, having an
office at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
acting not in their individual capacities but solely as Collateral Agents for
Lenders under and pursuant to the Collateral Agreement (hereinafter defined)
(Wilmington Trust Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, together "ASSIGNEE"), whose
mailing address and address from which information concerning its security
interest may be obtained is MRT Collateral Agent, c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
Unless otherwise defined herein, capitalized terms shall have the
meanings ascribed thereto in the Collateral Agreement or, if not otherwise
defined therein, the Indenture.
W I T N E S S E T H :
WHEREAS, in accordance with that certain Joint Plan of Reorganization
of MRT dated November 19, 1990, and confirmed on February 27, 1991, by the
United States Bankruptcy Court for the Central District of California (as
heretofore amended, the "1990 PLAN"), and that certain Collateral and Security
Agreement dated as of February 21, 1991 (the "ORIGINAL COLLATERAL AGREEMENT"),
MRT delivered to Assignee that certain Assignment of Mortgage and Other Recorded
Documents (the "ORIGINAL ASSIGNMENT"), more particularly described on the
attached SCHEDULE "I", pursuant to which Original Assignment Assignor assigned
to Assignee a
mortgage and other documents encumbering and affecting certain real property
more particularly described on the attached EXHIBIT "A";
WHEREAS, MRT entered into Amendment No. 2 to Plan of Reorganization
(the "1992 PLAN AMENDMENT") dated as of July 15, 1992, pursuant to which MRT
amended the 1990 Plan to, among other things, alter certain payment provisions
with respect to the Creditor Obligations under the 1990 Plan, and amend or add
certain other covenants and provisions of the 1990 Plan;
WHEREAS, pursuant to the 1992 Plan Amendment, (i) MRT, Assignee
and Lenders, amended the Original Collateral Agreement by that certain First
Amendment to Collateral and Security Agreement (the "1992 AMENDMENT TO
COLLATERAL AGREEMENT") dated as of July 15, 1992 (the Original Collateral
Agreement, as amended by the 1992 Amendment to Collateral Agreement, the "1992
COLLATERAL AGREEMENT"), (ii) MRT and Assignee entered into that certain
Indenture, dated as of July 15, 1992 (the "1992 INDENTURE"), and (iii) MRT and
Assignee amended the Original Assignment by that certain First Amendment to
Assignment of Mortgage and Other Recorded Documents dated as of July 15, 1992
(the "FIRST AMENDMENT TO ASSIGNMENT") (the Original Assignment, as amended by
the First Amendment to Assignment, the "Assignment");
WHEREAS, in accordance with that certain Plan of Reorganization
proposed by Mortgage and Realty Trust (dated July 12, 1995), and confirmed on
September 22, 1995 by the United States Bankruptcy Court for the Central
District of California pursuant to the Order (1) Approving Disclosure Statement
and Prepetition Solicitation; and (2) Confirming the Plan of Reorganization
Proposed by Mortgage and Realty Trust, a copy of which Order is attached hereto
and incorporated herein (as confirmed, the "1995 PLAN"), MRT modified the term
and reduced the principal amount of indebtedness due to Holders and, to evidence
such reduced principal amount, issued replacement Notes in the aggregate
principal amount of $110,000,000 (the "NOTES");
WHEREAS, pursuant to the 1995 Plan, (i) MRT, Assignee and Holders
modified the 1992 Collateral Agreement by that certain Amended and Restated
Collateral and Security Agreement (the "1995 AMENDED COLLATERAL AGREEMENT")
dated as of September 29, 1995 (the 1992 Collateral Agreement, as amended by the
1995 Amended Collateral Agreement, the "COLLATERAL AGREEMENT"), and (ii) MRT and
Assignee entered into that certain Amended and Restated Indenture dated as of
September 29, 1995 (the "INDENTURE"), which Indenture supersedes and replaces in
its entirety the 1992 Indenture; and
WHEREAS, the parties hereto desire to amend the Assignment to reflect
the amendments and modifications set forth in the 1995 Plan, the Indenture and
the 1995 Amended Collateral Agreement.
2
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
that the Assignment is amended as follows:
1. REFERENCES. All references in the Assignment to the "Collateral
Agreement" are hereby deemed to refer to the Original Collateral Agreement, as
amended by the 1992 Amendment to Collateral Agreement and as amended and
restated by the 1995 Amended Collateral Agreement; all references in the
Assignment to the "Plan" are hereby deemed to refer to the 1995 Plan. In each
instance where the Assignment is to be governed by, or is subject to, the terms
of the Plan or the Collateral Agreement, the Assignment shall also be governed
by, or be subject to, the terms of the Indenture. The Assignment is hereby
incorporated herein by this reference (subject to the modifications set forth in
this Second Amendment), and Assignor hereby restates the grants, assignments and
conveyances made by Assignor in the Assignment as if set forth in their entirety
herein (and confirms that the Assignment assigned and conveyed to Assignee all
of the documents described in the Assignment, and all of Assignor's beneficial
and other rights and interests therein), it being the intent of the parties
hereto that the Assignment, as amended hereby, secures and shall continue to
secure the Liabilities of MRT (including, without limitation, repayment of the
Notes) under and pursuant to (i) the 1990 Plan, as amended by the 1992 Plan
Amendment and as further modified by the 1995 Plan, (ii) the Original Collateral
Agreement, as amended by the 1992 Amendment to Collateral Agreement and as
amended and restated by the 1995 Amended Collateral Agreement, and (iii) the
Assignment, as amended by this Second Amendment.
2. RATIFICATION OF LIEN. Neither this Second Amendment, the 1995
Plan, the Indenture, the reissuance of the Notes in replacement form nor the
1995 Amended Collateral Agreement extinguishes, terminates or acts as a novation
of (or will be deemed to extinguish, terminate or act as a novation of) the
Assignment or the lien created thereby, or otherwise adversely affects or
otherwise impairs the lien created by the Assignment, and the Assignment and the
lien created thereby is hereby ratified and confirmed and remains validly
existing and in full force and effect. For purposes of the Assignment, as
amended by this Second Amendment, the term "Liabilities" shall not impose on MRT
any greater indebtedness, liability or obligation than as such term was defined
prior to the date of this Second Amendment.
3. NO IMPOSITION OF PERSONAL LIABILITY. This Second Amendment has
been executed on behalf of Assignor by the Treasurer and Chief Financial Officer
in his capacity as an officer of Assignor. As provided in section 7.2 of the
declaration of trust of Assignor, no trustee, officer, agent or shareholder of
Assignor shall be bound or held to any personal
3
liability in connection with the obligations of Assignor arising out of the
execution of this Second Amendment. The execution of this Second Amendment by
the said individual shall not bind the said individual and he shall not be held
to any personal liability in connection with the obligations under this Second
Amendment as a result of such execution.
4. COUNTERPARTS. This Second Amendment may be executed in any
number of counterparts and by different parties in separate counterparts, copies
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
5. RATIFICATION OF ORIGINAL ASSIGNMENT. Except as amended hereby,
the Assignment is ratified and confirmed in all respects.
[SIGNATURES ON NEXT PAGE]
4
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by their respective duly authorized officers or other
representatives as of the day and year first above written.
ASSIGNOR:
MORTGAGE AND REALTY TRUST, a
Maryland real estate investment
trust
By:__________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer and Chief
Financial Officer
ASSIGNEE:
WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not
in its individual capacity but
solely as Collateral Agent for
Lenders
By:___________________________
Name: ▇▇▇▇ ▇. St. Amand
Title: Assistant Vice President
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, not in his
individual capacity but solely as
Collateral Agent for Lenders
5
Schedule "I"
------------
Description of Security Document
PROPERTY NO: _____
COUNTY AND STATE: _____
Schedule I-1
Exhibit "A"
-----------
Description of the Real Estate
PROPERTY NO:______
COUNTY AND STATE: ______
A-1
[attach acknowledgments]
STATE:____________________________
MRT No.___________________________
Prepared By
and When Recorded Return to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SECOND AMENDMENT TO ASSIGNMENT OF
DEED OF TRUST AND OTHER RECORDED DOCUMENTS
NOTE: Pursuant to Section 1146(c) of the United States Bankruptcy
Code, the filing and recording of this instrument shall not be subject to any
stamp, real estate transfer, mortgage, recording or other similar tax.
THIS SECOND AMENDMENT TO ASSIGNMENT OF DEED OF TRUST AND OTHER
RECORDED DOCUMENTS (this "SECOND AMENDMENT") is made as of September 29, 1995 by
and between MORTGAGE AND REALTY TRUST (alternatively referred to herein as
either "MRT" or "ASSIGNOR"), a Maryland real estate investment trust, having an
office at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
acting not in their individual capacities but solely as Collateral Agents for
Lenders under and pursuant to the Collateral Agreement (hereinafter defined)
(Wilmington Trust Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, together, "ASSIGNEE"), whose
mailing address and address from which information concerning its security
interest may be obtained is MRT Collateral Agent, c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
Unless otherwise defined herein, capitalized terms shall have the
meanings ascribed thereto in the Collateral Agreement or, if not otherwise
defined therein, the Indenture.
W I T N E S S E T H :
WHEREAS, in accordance with that certain Joint Plan of Reorganization
of MRT dated November 19, 1990, and confirmed on February 27, 1991, by the
United States Bankruptcy Court for the Central District of California (as
heretofore amended, the "1990 PLAN"), and that certain Collateral and Security
Agreement dated as of February 21, 1991 (the "ORIGINAL COLLATERAL AGREEMENT"),
MRT delivered to Assignee that certain Assignment of Deed of Trust and
Other Recorded Documents (the "ORIGINAL ASSIGNMENT"), more particularly
described on the attached SCHEDULE "I",
pursuant to which Original Assignment Assignor assigned to Assignee a deed of
trust and other documents encumbering and affecting certain real property more
particularly described on the attached EXHIBIT "A";
WHEREAS, MRT entered into Amendment No. 2 to Plan of
Reorganization (the "1992 PLAN AMENDMENT"), pursuant to which MRT amended the
1990 Plan to, among other things, alter certain payment provisions with
respect to the Creditor Obligations under the 1990 Plan, and amend or add
certain other covenants and provisions of the 1990 Plan;
WHEREAS, pursuant to the 1992 Plan Amendment, (i) MRT,
Assignee and Lenders, amended the Original Collateral Agreement by that
certain First Amendment to Collateral and Security Agreement (the "1992
AMENDMENT TO COLLATERAL AGREEMENT") dated as of July 15, 1992 (the Original
Collateral Agreement, as amended by the 1992 Amendment to Collateral
Agreement, the "1992 COLLATERAL AGREEMENT"), (ii) MRT and Assignee entered
into that certain Indenture, dated as of July 15, 1992 (the "1992
INDENTURE"), and (iii) MRT and Assignee amended the Original Assignment by
that certain First Amendment to Assignment of Deed of Trust and Other
Recorded Documents dated as of July 15, 1992 (the "FIRST AMENDMENT TO
ASSIGNMENT") (the Original Assignment, as amended by the First Amendment to
Assignment, the "ASSIGNMENT");
WHEREAS, in accordance with that certain Plan of Reorganization
Proposed by Mortgage and Realty Trust (dated July 12, 1995), and confirmed on
September 22, 1995 by the United States Bankruptcy Court for the Central
District of California pursuant to the Order (1) Approving Disclosure Statement
and Prepetition Solicitation; and (2) Confirming the Plan of Reorganization
Proposed by Mortgage and Realty Trust, the "1995 PLAN"), MRT modified the term
and reduced the principal amount of indebtedness due to Holders and, to evidence
such reduced principal amount, issued replacement Notes in the aggregate
principal amount of $110,000,000 (the "NOTES");
WHEREAS, pursuant to the 1995 Plan, (i) MRT, Assignee and Holders
modified the 1992 Collateral Agreement by that certain Amended and Restated
Collateral and Security Agreement (the "1995 AMENDED COLLATERAL AGREEMENT")
dated as of September 29, 1995 (the 1992 Collateral Agreement, as amended by the
1995 Amended Collateral Agreement, the "COLLATERAL AGREEMENT"), and (ii) MRT and
Assignee entered into that certain Amended and Restated Indenture dated as of
September 29, 1995 (the "INDENTURE"), which Indenture supersedes and replaces in
its entirety the 1992 Indenture; and
WHEREAS, the parties hereto desire to amend the Assignment to reflect
the amendments and modifications set forth in the 1995 Plan, the Indenture and
the 1995 Amended Collateral Agreement.
2
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
that the Assignment is amended as follows:
1. REFERENCES. All references in the Assignment to the "Collateral
Agreement" are hereby deemed to refer to the Original Collateral Agreement, as
amended by the 1992 Amendment to Collateral Agreement and as amended and
restated by the 1995 Amended Collateral Agreement; all references in the
Assignment to the "Plan" are hereby deemed to refer to the 1995 Plan. In each
instance where the Assignment is to be governed by, or is subject to, the terms
of the Plan or the Collateral Agreement, the Assignment shall also be governed
by, or be subject to, the terms of the Indenture. The Assignment is hereby
incorporated herein by this reference (subject to the modifications set forth in
this Second Amendment), and Assignor hereby restates the grants, assignments and
conveyances made by Assignor in the Assignment as if set forth in their entirety
herein (and confirms that the Assignment assigned and conveyed to Assignee all
of the documents described in the Assignment, and all of Assignor's beneficial
and other rights and interests therein), it being the intent of the parties
hereto that the Assignment, as amended hereby, secures and shall continue to
secure the Liabilities of MRT (including, without limitation, repayment of the
Notes) under and pursuant to (i) the 1990 Plan, as amended by the 1992 Plan
Amendment and as further modified by the 1995 Plan, (ii) the Original Collateral
Agreement, as amended by the 1992 Amendment to Collateral Agreement and as
amended and restated by the 1995 Amended Collateral Agreement, and (iii) the
Assignment, as amended by this Second Amendment.
2. RATIFICATION OF LIEN. Neither this Second Amendment, the 1995
Plan, the Indenture, the reissuance of the Notes in replacement form nor the
1995 Amended Collateral Agreement extinguishes, terminates or acts as a novation
of (or will be deemed to extinguish, terminate or act as a novation of) the
Assignment or the lien created thereby, or otherwise adversely affects or
otherwise impairs the lien created by the Assignment, and the Assignment and the
lien created thereby is hereby ratified and confirmed and remains validly
existing and in full force and effect. For purposes of the Assignment, as
amended by this Second Amendment, the term "Liabilities" shall not impose on MRT
any greater indebtedness, liability or obligation than as such term was defined
prior to the date of this Second Amendment.
3. NO IMPOSITION OF PERSONAL LIABILITY. This Second Amendment has
been executed on behalf of Assignor by the Treasurer and Chief Financial Officer
in his capacity as an officer of Assignor. As provided in section 7.2 of the
declaration of trust of Assignor, no trustee, officer, agent or shareholder of
Assignor shall be bound or held to any personal
3
liability in connection with the obligations of Assignor arising out of the
execution of this Second Amendment. The execution of this Second Amendment by
the said individual shall not bind the said individual and he shall not be held
to any personal liability in connection with the obligations under this Second
Amendment as a result of such execution.
4. COUNTERPARTS. This Second Amendment may be executed in any
number of counterparts and by different parties in separate counterparts, copies
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
5. RATIFICATION OF ORIGINAL ASSIGNMENT. Except as amended hereby,
the Assignment is ratified and confirmed in all respects.
[SIGNATURES ON NEXT PAGE]
4
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by their respective duly authorized officers or other
representatives as of the day and year first above written.
ASSIGNOR:
MORTGAGE AND REALTY TRUST, a
Maryland real estate investment
trust
By:__________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer and Chief
Financial Officer
ASSIGNEE:
WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not
in its individual capacity but
solely as Collateral Agent for
Lenders
By:___________________________
Name: ▇▇▇▇ ▇. St. Amand
Title: Assistant Vice President
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, not in his
individual capacity but solely as
Collateral Agent for Lenders
5
SCHEDULE "I"
Description of Security Document
PROPERTY NO: _____
COUNTY AND STATE: _____
Schedule I-1
EXHIBIT "A"
Description of the Real Estate
PROPERTY NO:______
COUNTY AND STATE: ______
A-1
[attach acknowledgments]
STATE:________________________
MRT No.________________________
Prepared By
and When Recorded Return to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SECOND AMENDMENT TO
MORTGAGE, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
-------------------------------------
NOTE: Pursuant to Section 1146(c) of the United States Bankruptcy
Code, the filing and recording of this instrument shall not be subject to any
stamp, real estate transfer, mortgage, recording or other similar tax.
THIS SECOND AMENDMENT TO MORTGAGE, ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING (this "SECOND AMENDMENT") is made as of September
29, 1995, by and between MORTGAGE AND REALTY TRUST (alternatively referred to
herein as either "MRT" or "MORTGAGOR"), a Maryland real estate investment trust,
having an office at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, and WILMINGTON TRUST COMPANY, a Delaware banking corporation, and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, acting not in their individual capacities but solely as
Collateral Agents for Lenders under and pursuant to the Collateral Agreement
(hereinafter defined) (Wilmington Trust Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, together,
"MORTGAGEE"), whose mailing address and address from which information
concerning its security interest may be obtained is MRT Collateral Agent, c/o
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Unless otherwise defined herein, capitalized terms shall have the
meanings ascribed thereto in the Collateral Agreement or, if not otherwise
defined therein, the Indenture.
W I T N E S S E T H:
WHEREAS, in accordance with that certain Joint Plan of Reorganization
of MRT dated November 19, 1990, and confirmed on February 27, 1991 by the United
States Bankruptcy Court for the Central District of California (as heretofore
amended, the "1990 PLAN"), and that certain Collateral and Security Agreement
dated as of February 21, 1991 (the "ORIGINAL COLLATERAL AGREEMENT"), MRT
delivered to Mortgagee that certain Mortgage, Assignment of
Rents, Security Agreement and Fixture Filing (the "ORIGINAL MORTGAGE"),
more particularly described on the attached SCHEDULE "I", which Original
Mortgage encumbers certain real property more particularly described on the
attached EXHIBIT "A";
WHEREAS, MRT entered into Amendment No. 2 to Plan of Reorganization
(the "1992 PLAN AMENDMENT") dated as of July 15, 1992, pursuant to which MRT
amended the 1990 Plan to, among other things, alter certain payment provisions
with respect to the Creditor Obligations under the 1990 Plan, and amend or add
certain other covenants and provisions of the 1990 Plan;
WHEREAS, pursuant to the 1992 Plan Amendment, (i) MRT, Mortgagee and
Lenders amended the Original Collateral Agreement by that certain First
Amendment to Collateral and Security Agreement (the "1992 AMENDMENT TO
COLLATERAL AGREEMENT") dated as of July 15, 1992 (the Original Collateral
Agreement, as amended by the 1992 Amendment to Collateral Agreement, the "1992
COLLATERAL AGREEMENT"), (ii) MRT and Mortgagee entered into that certain
Indenture dated as of July 15, 1992 (the "1992 INDENTURE"), and (iii) MRT and
Mortgagee amended the Original Mortgage by that certain First Amendment
of Mortgage, Assignment of Rents, Security Agreement and Fixture Filing
dated as of July 15, 1992 (the "FIRST AMENDMENT TO Mortgage") (the Original
Mortgage, as amended by the First Amendment to Mortgage, the "MORTAGE");
WHEREAS, in accordance with that certain Plan of Reorganization
proposed by Mortgage and Realty Trust (dated July 12, 1995), and confirmed on
September 22, 1995 by the United States Bankruptcy Court for the Central
District of California pursuant to the Order (1) Approving Disclosure Statement
and Prepetition Solicitation; and (2) Confirming the Plan of Reorganization
Proposed by Mortgage and Realty Trust (as confirmed, the "1995 PLAN"), MRT
modified the term and reduced the principal amount of indebtedness due to
Holders and, to evidence such reduced principal amount, issued replacement Notes
in the aggregate principal amount of $110,000,000 (the "NOTES");
WHEREAS, pursuant to the 1995 Plan, (i) MRT, Mortgagee and Holders
modified the 1992 Collateral Agreement by that certain Amended and Restated
Collateral and Security Agreement (the "1995 AMENDED COLLATERAL AGREEMENT")
dated as of September 29, 1995 (the 1992 Collateral Agreement, as amended by the
1995 Amended Collateral Agreement, the "COLLATERAL AGREEMENT"), and (ii) MRT and
Mortgagee entered into that certain Amended and Restated Indenture dated as of
September 29, 1995 (the "INDENTURE"), which Indenture supersedes and replaces
in its entirely the 1992 Indenture; and
WHEREAS, the parties hereto desire to amend the Mortgage to
reflect the amendments and modifications set forth in
2
the 1995 Plan, the Indenture and the 1995 Amended Collateral Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree
that the Mortgage is amended as follows:
1. REFERENCES. All references in the Mortgage to the
"Collateral Agreement" are hereby deemed to refer to the Original Collateral
Agreement as amended by the 1992 Amendment to Collateral Agreement and as
amended and restated by the 1995 Amended Collateral Agreement; all references in
the Mortgage to the "Plan" are hereby deemed to refer to the 1995 Plan. In
each instance where the Mortgage is to be governed by, or is subject to,
the terms of the Plan or the Collateral Agreement, the Mortgage shall also
be governed by, or be subject to, the terms of the Indenture. The Mortgage
is hereby incorporated herein by this reference (subject to the modifications
set forth in this Second Amendment), and Mortgagor hereby restates the grants,
assignments and conveyances made by Mortgagor in the Mortgage as if set
forth in their entirety herein, it being the intent of the parties hereto that
the Mortgage, as amended hereby, secures and shall continue to secure the
Liabilities of MRT (including, without limitation, repayment of the Notes) under
and pursuant to (i) the 1990 Plan, as amended by the 1992 Plan Amendment and as
further modified by the 1995 Plan, (ii) the Original Collateral Agreement, as
amended by the 1992 Amendment to Collateral Agreement and as amended and
restated by the 1995 Amended Collateral Agreement, and (iii) the Mortgage,
as amended by this Second Amendment.
2. RATIFICATION OF LIEN. Neither this Second Amendment, the 1995
Plan, the Indenture, the reissuance of the Notes in replacement form nor the
1995 Amended Collateral Agreement extinguishes, terminates or acts as a novation
of (or will be deemed to extinguish, terminate or act as a novation of)
Mortgage or the lien created thereby, or otherwise adversely affects or
otherwise impairs the lien created by the Mortgage, and the Mortgage
and the lien created thereby is hereby ratified and confirmed in all respects
and remains validly existing and in full force and effect. For purposes of the
Mortgage, as amended by this Second Amendment, the term "Liabilities" shall
not impose on MRT any greater indebtedness, liability or obligation than as such
term was defined prior to the date of this Second Amendment.
3. NO IMPOSITION OF PERSONAL LIABILITY. This Second Amendment has
been executed on behalf of Mortgagor by the Treasurer and Chief Financial
Officer in his capacity as an officer of Mortgagor. As provided in section 7.2
of the declaration of trust of Mortgagor, no trustee, officer, agent or
shareholder of Mortgagor shall be bound or held to any personal liability in
connection with the obligations of Mortgagor arising
3
out of the execution of this Second Amendment. The execution of this Second
Amendment by the said individual shall not bind the said individual and he shall
not be held to any personal liability in connection with the obligations under
this Second Amendment as a result of such execution.
4. COUNTERPARTS. This Second Amendment may be executed in any
number of counterparts and by different parties in separate counterparts, copies
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
5. RATIFICATION OF ORIGINAL Mortgage. Except as amended
hereby, the Mortgage is ratified and confirmed in all respects.
[SIGNATURES ON NEXT PAGE]
4
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by their respective duly authorized officers or other
representatives as of the day and year first above written.
MORTGAGOR:
MORTGAGE AND REALTY TRUST,
a Maryland real estate investment trust
By: _____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer and Chief Financial Officer
MORTGAGEE:
WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not in its
individual capacity but solely as
Collateral Agent for Lenders
By: ____________________________________
Name: ▇▇▇▇ ▇. St. Amand
Title: Assistant Vice President
________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, not in his
individual capacity but solely
as Collateral Agent for Lenders
5
SCHEDULE "I"
------------
Description of Security Document
PROPERTY NO: _____
COUNTY AND STATE: _____
Schedule I-1
EXHIBIT "A"
-----------
Description of the Real Estate
PROPERTY NO:______
COUNTY AND STATE: ______
A-1
[attach acknowledgments]
STATE:______________________
MRT No._____________________
Prepared By
and When Recorded Return to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FIRST AMENDMENT TO ASSIGNMENT
OF MORTGAGE AND OTHER RECORDED DOCUMENTS
----------------------------------------
NOTE: Pursuant to Section 1146(c) of the United States Bankruptcy
Code, the filing and recording of this instrument shall not be subject to any
stamp, real estate transfer, mortgage, recording or other similar tax.
THIS FIRST AMENDMENT TO ASSIGNMENT OF MORTGAGE AND OTHER RECORDED
DOCUMENTS (this "FIRST AMENDMENT") is made as of September 29, 1995 by and
between MORTGAGE AND REALTY TRUST (alternatively referred to herein as either
"MRT" or "ASSIGNOR"), a Maryland real estate investment trust, having an office
at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
acting not in their individual capacities but solely as Collateral Agents for
Lenders under and pursuant to the Collateral Agreement (hereinafter defined)
(Wilmington Trust Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, together "ASSIGNEE"), whose
mailing address and address from which information concerning its security
interest may be obtained is MRT Collateral Agent, c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
Unless otherwise defined herein, capitalized terms shall have the
meanings ascribed thereto in the Collateral Agreement or, if not otherwise
defined therein, the Indenture.
W I T N E S S E T H :
WHEREAS, MRT entered into that certain Joint Plan of Reorganization
dated as of November 19, 1990, and confirmed on February 27, 1991, by the United
States Bankruptcy Court for the Central District of California (as heretofore
amended, the "1990 PLAN"), and that certain Collateral and Security Agreement
dated as of February 21, 1991 (the "ORIGINAL COLLATERAL AGREEMENT");
WHEREAS, MRT entered into Amendment No. 2 to Plan of Reorganization
(the "1992 PLAN AMENDMENT") dated as of July 15, 1992, pursuant to which MRT
amended the 1990 Plan to, among other things, alter certain payment provisions
with respect to the
Creditor Obligations under the 1990 Plan, and amend or add certain other
covenants and provisions of the 1990 Plan;
WHEREAS, pursuant to the 1992 Plan Amendment, (i) MRT, Assignee and
Lenders, amended the Original Collateral Agreement by that certain First
Amendment to Collateral and Security Agreement (the "1992 AMENDMENT TO
COLLATERAL AGREEMENT") dated as of July 15, 1992 (the Original Collateral
Agreement, as amended by the 1992 Amendment to Collateral Agreement, the "1992
COLLATERAL AGREEMENT"), (ii) MRT and Assignee entered into that certain
Indenture, dated as of July 15, 1992 (the "1992 INDENTURE");
WHEREAS, in accordance with the 1992 Collateral Agreement and the 1992
Indenture, MRT delivered to Assignee that certain Assignment of Mortgage and
Other Recorded Documents (the "ASSIGNMENT"), more particularly described on the
attached SCHEDULE "I", pursuant to which Assignment Assignor assigned to
Assignee a mortgage and certain other documents encumbering and affecting
certain real property more particularly described on the attached EXHIBIT "A";
WHEREAS, in accordance with that certain Plan of Reorganization
Proposed by Mortgage and Realty Trust (dated July 12, 1995), and confirmed on
September 22, 1995 by the United States Bankruptcy Court for the Central
District of California pursuant to the Order (1) Approving Disclosure Statement
and Prepetition Solicitation; and (2) Confirming the Plan of Reorganization
Proposed by Mortgage and Realty Trust (as confirmed, the "1995 PLAN"), MRT
modified the term and reduced the principal amount of indebtedness due to
Holders and, to evidence such reduced principal amount, issued replacement Notes
in the aggregate principal amount of $110,000,000 (the "NOTES");
WHEREAS, pursuant to the 1995 Plan, (i) MRT, Assignee and Holders
modified the 1992 Collateral Agreement by that certain Amended and Restated
Collateral and Security Agreement (the "1995 AMENDED COLLATERAL AGREEMENT")
dated as of September 29, 1995 (the 1992 Collateral Agreement, as amended by the
1995 Amended Collateral Agreement, the "COLLATERAL AGREEMENT"), and (ii) MRT and
Assignee entered into that certain Amended and Restated Indenture dated as of
September 29, 1995 (the "INDENTURE"), which Indenture supersedes and replaces in
its entirety the 1992 Indenture; and
WHEREAS, the parties hereto desire to amend the Assignment to reflect
the amendments and modifications set forth in the 1995 Plan, the Indenture and
the 1995 Amended Collateral Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the
2
parties hereto hereby agree that the Assignment is amended as follows:
1. REFERENCES. All references in the Assignment to the "Collateral
Agreement" are hereby deemed to refer to the Original Collateral Agreement, as
amended by the 1992 Amendment to Collateral Agreement and as amended and
restated by the 1995 Amended Collateral Agreement; all references in the
Assignment to the "Plan" are hereby deemed to refer to the 1995 Plan. In each
instance where the Assignment is to be governed by, or is subject to, the terms
of the Plan or the Collateral Agreement, the Assignment shall also be governed
by, or be subject to, the terms of the Indenture. The Assignment is hereby
incorporated herein by this reference (subject to the modifications set forth in
this First Amendment), and Assignor hereby restates the grants, assignments and
conveyances made by Assignor in the Assignment as if set forth in their entirety
herein (and confirms that the Assignment assigned and conveyed to Assignee all
of the documents described in the Assignment, and all of Assignor's beneficial
and other rights and interests therein), it being the intent of the parties
hereto that the Assignment, as amended hereby, secures and shall continue to
secure the Liabilities of MRT (including, without limitation, repayment of the
Notes) under and pursuant to (i) the 1990 Plan, as amended by the 1992 Plan
Amendment and as further modified by the 1995 Plan, (ii) the Original Collateral
Agreement, as amended by the 1992 Amendment to Collateral Agreement and as
amended and restated by the 1995 Amended Collateral Agreement, and (iii) the
Assignment, as amended by this First Amendment.
2. RATIFICATION OF LIEN. Neither this First Amendment, the 1995
Plan, the Indenture, the reissuance of the Notes in replacement form nor the
1995 Amended Collateral Agreement extinguishes, terminates or acts as a novation
of (or will be deemed to extinguish, terminate or act as a novation of) the
Assignment or the lien created thereby, or otherwise adversely affects or
otherwise impairs the lien created by the Assignment, and the Assignment and the
lien created thereby is hereby ratified and confirmed and remains validly
existing and in full force and effect. For purposes of the Assignment, as
amended by this First Amendment, the term "Liabilities" shall not impose on MRT
any greater indebtedness, liability or obligation than as such term was defined
prior to the date of this First Amendment.
3. NO IMPOSITION OF PERSONAL LIABILITY. This First Amendment has
been executed on behalf of Assignor by the Treasurer and Chief Financial Officer
in his capacity as an officer of Assignor. As provided in section 7.2 of the
declaration of trust of Assignor, no trustee, officer, agent or shareholder of
Assignor shall be bound or held to any personal liability in connection with the
obligations of Assignor arising out of the execution of this First Amendment.
The execution of
3
this First Amendment by the said individual shall not bind the said individual
and he shall not be held to any personal liability in connection with the
obligations under this First Amendment as a result of such execution.
4. COUNTERPARTS. This First Amendment may be executed in any number
of counterparts and by different parties in separate counterparts, copies of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5. RATIFICATION OF ORIGINAL ASSIGNMENT. Except as amended hereby,
the original Assignment is ratified and confirmed in all respects.
[SIGNATURES ON NEXT PAGE]
4
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed by their respective duly authorized officers or other
representatives as of the day and year first above written.
ASSIGNOR:
MORTGAGE AND REALTY TRUST, a
Maryland real estate investment trust
By:__________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer and Chief
Financial Officer
ASSIGNEE:
WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not
in its individual capacity but
solely as Collateral Agent for
Lenders
By:___________________________
Name: ▇▇▇▇ ▇. St. Amand
Title: Assistant Vice President
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, not in his
individual capacity but solely as
Collateral Agent for Lenders
5
SCHEDULE "I"
------------
Description of Security Document
PROPERTY NO: _____
COUNTY AND STATE: _____
Schedule I-1
EXHIBIT "A"
-----------
Description of the Real Estate
PROPERTY NO:______
COUNTY AND STATE: ______
A-1
[attach acknowledgments]
STATE:_______________________
MRT No.______________________
Prepared By
and When Recorded Return to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FIRST AMENDMENT TO ASSIGNMENT
OF DEED OF TRUST AND OTHER RECORDED DOCUMENTS
---------------------------------------------
NOTE: Pursuant to Section 1146(c) of the United States Bankruptcy
Code, the filing and recording of this instrument shall not be subject to any
stamp, real estate transfer, mortgage, recording or other similar tax.
THIS FIRST AMENDMENT TO ASSIGNMENT OF DEED OF TRUST AND OTHER
RECORDED DOCUMENTS (this "FIRST AMENDMENT") is made as of September 29, 1995 by
and between MORTGAGE AND REALTY TRUST (alternatively referred to herein as
either "MRT" or "ASSIGNOR"), a Maryland real estate investment trust, having an
office at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
acting not in their individual capacities but solely as Collateral Agents for
Lenders under and pursuant to the Collateral Agreement (hereinafter defined)
(Wilmington Trust Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, together "ASSIGNEE"), whose
mailing address and address from which information concerning its security
interest may be obtained is MRT Collateral Agent, c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
Unless otherwise defined herein, capitalized terms shall have the
meanings ascribed thereto in the Collateral Agreement or, if not otherwise
defined therein, the Indenture.
W I T N E S S E T H :
WHEREAS, MRT entered into that certain Joint Plan of Reorganization of
MRT dated November 19, 1990, and confirmed on February 27, 1991, by the United
States Bankruptcy Court for the Central District of California (as heretofore
amended, the "1990 PLAN"), and that certain Collateral and Security Agreement
dated as of February 21, 1991 (the "ORIGINAL COLLATERAL AGREEMENT");
WHEREAS, MRT entered into Amendment No. 2 to Plan of Reorganization
(the "1992 PLAN AMENDMENT") dated as of July 15, 1992, pursuant to which MRT
amended the 1990 Plan to, among other things, alter certain payment provisions
with respect to the Creditor Obligations under the 1990 Plan, and amend or add
certain other covenants and provisions of the 1990 Plan;
WHEREAS, pursuant to the 1992 Plan Amendment, (i) MRT, Assignee and
Lenders, amended the Original Collateral Agreement by that certain First
Amendment to Collateral and Security Agreement (the "1992 AMENDMENT TO
COLLATERAL AGREEMENT") dated as of July 15, 1992 (the Original Collateral
Agreement, as amended by the 1992 Amendment to Collateral Agreement, the "1992
COLLATERAL AGREEMENT"), (ii) MRT and Assignee entered into that certain
Indenture, dated as of July 15, 1992 (the "1992 INDENTURE");
WHEREAS, in accordance with the 1992 Collateral Agreement and the 1992
Indenture, MRT delivered to Assignee that certain Assignment of Deed of Trust
and Other Recorded Documents (the "ASSIGNMENT"), more particularly described on
the attached SCHEDULE "I", pursuant to which Assignment Assignor assigned to
Assignee a mortgage and certain other documents encumbering and affecting
certain real property more particularly described on the attached EXHIBIT "A";
WHEREAS, in accordance with that certain Plan of Reorganization
Proposed by Mortgage and Realty Trust (dated July 12, 1995), and confirmed on
September 22, 1995 by the United States Bankruptcy Court for the Central
District of California pursuant to the Order (1) Approving Disclosure Statement
and Prepetition Solicitation; and (2) Confirming the Plan of Reorganization
Proposed by Mortgage and Realty Trust (as confirmed, the "1995 PLAN"), MRT
modified the term and reduced the principal amount of indebtedness due to
Holders and, to evidence such reduced principal amount, issued replacement Notes
in the aggregate principal amount of $110,000,000 (the "NOTES");
WHEREAS, pursuant to the 1995 Plan, (i) MRT, Assignee and Holders
modified the 1992 Collateral Agreement by that certain Amended and Restated
Collateral and Security Agreement (the "1995 AMENDED COLLATERAL AGREEMENT")
dated as of September 29, 1995 (the 1992 Collateral Agreement, as amended by the
1995 Amended Collateral Agreement, the "COLLATERAL AGREEMENT"), and (ii) MRT and
Assignee entered into that certain Amended and Restated Indenture dated as of
September 29, 1995 (the "INDENTURE"), which Indenture supersedes and replaces in
its entirety the 1992 Indenture; and
WHEREAS, the parties hereto desire to amend the Assignment to reflect
the amendments and modifications set forth in the 1995 Plan, the Indenture and
the 1995 Amended Collateral Agreement.
2
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
that the Assignment is amended as follows:
1. REFERENCES. All references in the Assignment to the "Collateral
Agreement" are hereby deemed to refer to the Original Collateral Agreement, as
amended by the 1992 Amendment to Collateral Agreement and as amended and
restated by the 1995 Amended Collateral Agreement; all references in the
Assignment to the "Plan" are hereby deemed to refer to the 1995 Plan. In each
instance where the Assignment is to be governed by, or is subject to, the terms
of the Plan or the Collateral Agreement, the Assignment shall also be governed
by, or be subject to, the terms of the Indenture. The Assignment is hereby
incorporated herein by this reference (subject to the modifications set forth in
this First Amendment), and Assignor hereby restates the grants, assignments and
conveyances made by Assignor in the Assignment as if set forth in their entirety
herein (and confirms that the Assignment assigned and conveyed to Assignee all
of the documents described in the Assignment, and all of Assignor's beneficial
and other rights and interests therein), it being the intent of the parties
hereto that the Assignment, as amended hereby, secures and shall continue to
secure the Liabilities of MRT (including, without limitation, repayment of the
Notes) under and pursuant to (i) the 1990 Plan, as amended by the 1992 Plan
Amendment and as further modified by the 1995 Plan, (ii) the Original Collateral
Agreement, as amended by the 1992 Amendment to Collateral Agreement and as
amended and restated by the 1995 Amended Collateral Agreement, and (iii) the
Assignment, as amended by this First Amendment.
2. RATIFICATION OF LIEN. Neither this First Amendment, the 1995
Plan, the Indenture, the reissuance of the Notes in replacement form nor the
1995 Amended Collateral Agreement extinguishes, terminates or acts as a novation
of (or will be deemed to extinguish, terminate or act as a novation of) the
Assignment or the lien created thereby, or otherwise adversely affects or
otherwise impairs the lien created by the Assignment, and the Assignment and the
lien created thereby is hereby ratified and confirmed and remains validly
existing and in full force and effect. For purposes of the Assignment, as
amended by this First Amendment, the term "Liabilities" shall not impose on MRT
any greater indebtedness, liability or obligation than as such term was defined
prior to the date of this First Amendment.
3. NO IMPOSITION OF PERSONAL LIABILITY. This First Amendment has
been executed on behalf of Assignor by the Treasurer and Chief Financial Officer
in his capacity as an officer of Assignor. As provided in section 7.2 of the
declaration of trust of Assignor, no trustee, officer, agent or shareholder of
Assignor shall be bound or held to any personal
3
liability in connection with the obligations of Assignor arising out of the
execution of this First Amendment. The execution of this First Amendment by the
said individual shall not bind the said individual and he shall not be held to
any personal liability in connection with the obligations under this First
Amendment as a result of such execution.
4. COUNTERPARTS. This First Amendment may be executed in any number
of counterparts and by different parties in separate counterparts, copies of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5. RATIFICATION OF ORIGINAL ASSIGNMENT. Except as amended hereby,
the original Assignment is ratified and confirmed in all respects.
[SIGNATURES ON NEXT PAGE]
4
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed by their respective duly authorized officers or other
representatives as of the day and year first above written.
ASSIGNOR:
MORTGAGE AND REALTY TRUST, a
Maryland real estate investment
trust
By:__________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer and Chief
Financial Officer
ASSIGNEE:
WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not
in its individual capacity but
solely as Collateral Agent for
Lenders
By:___________________________
Name: ▇▇▇▇ ▇. St. Amand
Title: Assistant Vice President
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, not in his
individual capacity but solely as
Collateral Agent for Lenders
5
SCHEDULE "I"
------------
Description of Security Document
PROPERTY NO: _____
COUNTY AND STATE: _____
Schedule I-1
EXHIBIT "A"
-----------
Description of the Real Estate
PROPERTY NO:______
COUNTY AND STATE: ______
A-1
[attach acknowledgments]
STATE:_______________________
MRT No.______________________
Prepared By
and When Recorded Return to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FIRST AMENDMENT TO
DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
-------------------------------------
NOTE: Pursuant to Section 1146(c) of the United States Bankruptcy
Code, the filing and recording of this instrument shall not be subject to any
stamp, real estate transfer, mortgage, recording or other similar tax.
THIS FIRST AMENDMENT TO DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING (this "FIRST AMENDMENT") is made as of September
29, 1995, by and between MORTGAGE AND REALTY TRUST (alternatively referred to
herein as either "MRT" or "TRUSTOR"), a Maryland real estate investment trust,
having an office at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, and WILMINGTON TRUST COMPANY, a Delaware banking corporation, and ▇▇▇▇▇▇▇
▇. ▇▇▇▇, acting not in their individual capacities but solely as Collateral
Agents for Lenders under and pursuant to the Collateral Agreement (hereinafter
defined) (Wilmington Trust Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, together,
"BENEFICIARY"), whose mailing address and address from which information
concerning its security interest may be obtained is MRT Collateral Agent, c/o
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, One ▇▇▇▇▇▇ Square, P. O. ▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Unless otherwise defined herein, capitalized terms shall have the
meanings ascribed thereto in the Collateral Agreement or, if not otherwise
defined therein, the Indenture.
W I T N E S S E T H:
WHEREAS, MRT entered into that certain Joint Plan of Reorganization of
MRT dated November 19, 1990, and confirmed on February 27, 1991 by the United
States Bankruptcy Court for the Central District of California (as heretofore
amended, the "1990 PLAN"), and that certain Collateral and Security Agreement
dated as of February 21, 1991 (the "ORIGINAL COLLATERAL AGREEMENT");
WHEREAS, MRT entered into Amendment No. 2 to Plan of Reorganization
(the "1992 PLAN AMENDMENT") dated as of July 15, 1992, pursuant to which MRT
amended the 1990 Plan to, among other things, alter certain payment provisions
with respect to the Creditor Obligations under the 1990 Plan, and amend or add
certain other covenants and provisions of the 1990 Plan;
WHEREAS, pursuant to the 1992 Plan Amendment, (i) MRT, Beneficiary and
Lenders amended the Original Collateral Agreement by that certain First
Amendment to Collateral and Security Agreement (the "1992 AMENDMENT TO
COLLATERAL AGREEMENT") dated as of July 15, 1992 (the Original Collateral
Agreement, as amended by the 1992 Amendment to Collateral Agreement, the "1992
COLLATERAL AGREEMENT"), and (ii) MRT and Beneficiary entered into that certain
Indenture dated as of July 15, 1992 (the "1992 INDENTURE");
WHEREAS, in accordance with the 1992 Collateral Agreement and the 1992
Indenture, MRT delivered to Beneficiary that certain Deed of Trust, Assignment
of Rents, Security Agreement and Fixture Filing (the "DEED OF TRUST"), more
particularly described on the attached SCHEDULE "I", which Deed of Trust
encumbers certain real property more particularly described on the attached
EXHIBIT "A";
WHEREAS, in accordance with that certain Plan of Reorganization
Proposed by Mortgage and Realty Trust (dated July 12, 1995), and confirmed on
September 22, 1995 by the United States Bankruptcy Court for the Central
District of California pursuant to the Order (1) Approving Disclosure Statement
and Prepetition Solicitation; and (2) Confirming the Plan of Reorganization
Proposed by Mortgage and Realty Trust (as confirmed, the "1995 PLAN"), MRT
modified the term and reduced the principal amount of indebtedness due to
Holders and, to evidence such reduced principal amount, issued replacement Notes
in the aggregate principal amount of $110,000,000 (the "NOTES");
WHEREAS, pursuant to the 1995 Plan, (i) MRT, Beneficiary and Holders
modified the 1992 Collateral Agreement by that certain Amended and Restated
Collateral and Security Agreement (the "1995 AMENDED COLLATERAL AGREEMENT")
dated as of September 29, 1995 (the 1992 Collateral Agreement, as amended by the
1995 Amended Collateral Agreement, the "COLLATERAL AGREEMENT"), and (ii) MRT and
Beneficiary entered into that certain Amended and Restated Indenture dated as of
September 29, 1995 (the "INDENTURE"), which Indenture supersedes and replaces in
its entirety the 1992 Indenture; and
WHEREAS, the parties hereto desire to amend the Deed of Trust to
reflect the amendments and modifications set forth in the 1995 Plan, the
Indenture and the 1995 Amended Collateral Agreement.
2
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
that the Deed of Trust is amended as follows:
1. REFERENCES. All references in the Deed of Trust to the "Collateral
Agreement" are hereby deemed to refer to the Original Collateral Agreement, as
amended by the 1992 Amendment to Collateral Agreement and as amended and
restated by the 1995 Amended Collateral Agreement; all references in the Deed of
Trust to the "Plan" are hereby deemed to refer to the 1995 Plan. In each
instance where the Deed of Trust is to be governed by, or is subject to, the
terms of the Plan or the Collateral Agreement, the Deed of Trust shall also be
governed by, or be subject to, the terms of the Indenture. The Deed of Trust is
hereby incorporated herein by this reference (subject to the modifications set
forth in this First Amendment), and Trustor hereby restates the grants,
conveyances and assignments made by Trustor in the Deed of Trust as if set forth
in their entirety herein, it being the intent of the parties hereto that the
Deed of Trust, as amended hereby, secures and shall continue to secure the
Liabilities of MRT (including, without limitation, repayment of the Notes) under
and pursuant to (i) the 1990 Plan, as amended by the 1992 Plan Amendment and as
further modified by the 1995 Plan, (ii) the Original Collateral Agreement, as
amended by the 1992 Amendment to Collateral Agreement and as amended and
restated by the 1995 Amended Collateral Agreement, and (iii) the Deed of Trust,
as amended by this First Amendment.
2. RATIFICATION OF LIEN. Neither this First Amendment, the 1995 Plan,
the Indenture, the reissuance of the Notes in replacement form nor the 1995
Amended Collateral Agreement extinguishes, terminates or acts as a novation of
(or will be deemed to extinguish, terminate or act as a novation of) the Deed of
Trust or the lien created thereby, or otherwise adversely affects or otherwise
impairs the lien created by the Deed of Trust, and the Deed of Trust and the
lien created thereby is hereby ratified and confirmed and remains validly
existing and in full force and effect. For purposes of the Deed of Trust, as
amended by this First Amendment, the term "Liabilities" shall not impose on MRT
any greater indebtedness, liability or obligation than as such term was defined
prior to the date of this First Amendment.
3. NO IMPOSITION OF PERSONAL LIABILITY. This First Amendment has been
executed on behalf of Trustor by the Treasurer and Chief Financial Officer in
his capacity as an officer of Trustor. As provided in section 7.2 of the
declaration of trust of Trustor, no trustee, officer, agent or shareholder of
Trustor shall be bound or held to any personal liability in connection with the
obligations of Trustor arising out of the execution of this First Amendment.
The execution of this First Amendment by the said individual shall not bind the
said individual and he
3
shall not be held to any personal liability in connection with the obligations
under this First Amendment as a result of such execution.
4. COUNTERPARTS. This First Amendment may be executed in any number of
counterparts and by different parties in separate counterparts, copies of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5. RATIFICATION OF ORIGINAL DEED OF TRUST. Except as amended hereby, the
original Deed of Trust is ratified and confirmed in all respects.
[SIGNATURES ON NEXT PAGE]
4
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed by their respective duly authorized officers or other
representatives as of the day and year first above written.
TRUSTOR:
MORTGAGE AND REALTY TRUST,
a Maryland real estate investment trust
By:____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer and Chief Financial Officer
BENEFICIARY:
WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not in its
individual capacity but solely as
Collateral Agent for Lenders
By:____________________________________
Name: ▇▇▇▇ ▇. St. Amand
Title: Assistant Vice President
_______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, not in his
individual capacity but solely
as Collateral Agent for Lenders
5
SCHEDULE "I"
------------
Description of Security Document
PROPERTY NO: _____
COUNTY AND STATE: _____
I-1
EXHIBIT "A"
-----------
Description of the Real Estate
PROPERTY NO:______
COUNTY AND STATE: ______
A-1
[attach acknowledgments]
STATE:_______________________
MRT No.______________________
Prepared By
and When Recorded Return to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FIRST AMENDMENT TO
MORTGAGE, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
-------------------------------------
NOTE: Pursuant to Section 1146(c) of the United States Bankruptcy
Code, the filing and recording of this instrument shall not be subject to any
stamp, real estate transfer, mortgage, recording or other similar tax.
THIS FIRST AMENDMENT TO MORTGAGE, ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING (this "FIRST AMENDMENT") is made as of September
29, 1995, by and between MORTGAGE AND REALTY TRUST (alternatively referred to
herein as either "MRT" or "MORTGAGOR"), a Maryland real estate investment trust,
having an office at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, and WILMINGTON TRUST COMPANY, a Delaware banking corporation, and ▇▇▇▇▇▇▇
▇. ▇▇▇▇, acting not in their individual capacities but solely as Collateral
Agents for Lenders under and pursuant to the Collateral Agreement (hereinafter
defined) (Wilmington Trust Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, together,
"MORTGAGEE"), whose mailing address and address from which information
concerning its security interest may be obtained is MRT Collateral Agent, c/o
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, One ▇▇▇▇▇▇ Square, P. O. ▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Unless otherwise defined herein, capitalized terms shall have the
meanings ascribed thereto in the Collateral Agreement or, if not otherwise
defined therein, the Indenture.
W I T N E S S E T H:
WHEREAS, MRT entered into that certain Joint Plan of Reorganization of
MRT dated November 19, 1990, and confirmed on February 27, 1991 by the United
States Bankruptcy Court for the Central District of California (as heretofore
amended, the "1990 PLAN"), and that certain Collateral and Security Agreement
dated as of February 21, 1991 (the "ORIGINAL COLLATERAL AGREEMENT");
WHEREAS, MRT entered into Amendment No. 2 to Plan of Reorganization
(the "1992 PLAN AMENDMENT") dated as of July 15, 1992, pursuant to which MRT
amended the 1990 Plan to, among other things, alter certain payment provisions
with respect to the Creditor Obligations under the 1990 Plan, and amend or add
certain other covenants and provisions of the 1990 Plan;
WHEREAS, pursuant to the 1992 Plan Amendment, (i) MRT, Mortgagee and
Lenders amended the Original Collateral Agreement by that certain First
Amendment to Collateral and Security Agreement (the "1992 AMENDMENT TO
COLLATERAL AGREEMENT") dated as of July 15, 1992 (the Original Collateral
Agreement, as amended by the 1992 Amendment to Collateral Agreement, the "1992
COLLATERAL AGREEMENT"), and (ii) MRT and Mortgagee entered into that certain
Indenture dated as of July 15, 1992 (the "1992 INDENTURE");
WHEREAS, in accordance with the 1992 Collateral Agreement and the 1992
Indenture, MRT delivered to Mortgagee that certain Mortgage, Assignment
of Rents, Security Agreement and Fixture Filing (the "MORTGAGE"), more
particularly described on the attached SCHEDULE "I", which Mortgage
encumbers certain real property more particularly described on the attached
EXHIBIT "A";
WHEREAS, in accordance with that certain Plan of Reorganization
Proposed by Mortgage and Realty Trust (dated July 12, 1995), and confirmed on
September 22, 1995 by the United States Bankruptcy Court for the Central
District of California pursuant to the Order (1) Approving Disclosure Statement
and Prepetition Solicitation; and (2) Confirming the Plan of Reorganization
Proposed by Mortgage and Realty Trust (as confirmed, the "1995 PLAN"), MRT
modified the term and reduced the principal amount of indebtedness due to
Holders and, to evidence such reduced principal amount, issued replacement Notes
in the aggregate principal amount of $110,000,000 (the "NOTES");
WHEREAS, pursuant to the 1995 Plan, (i) MRT, Mortgagee and Holders
modified the 1992 Collateral Agreement by that certain Amended and Restated
Collateral and Security Agreement (the "1995 AMENDED COLLATERAL AGREEMENT")
dated as of September 29, 1995 (the 1992 Collateral Agreement, as amended by the
1995 Amended Collateral Agreement, the "COLLATERAL AGREEMENT"), and (ii) MRT and
Mortgagee entered into that certain Amended and Restated Indenture dated as of
September 29, 1995 (the "INDENTURE"), which Indenture supersedes and replaces in
its entirety the 1992 Indenture; and
WHEREAS, the parties hereto desire to amend the Mortgage to
reflect the amendments and modifications set forth in the 1995 Plan, the
Indenture and the 1995 Amended Collateral Agreement.
2
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
that the Mortgage is amended as follows:
1. REFERENCES. All references in the Mortgage to the "Collateral
Agreement" are hereby deemed to refer to the Original Collateral Agreement, as
amended by the 1992 Amendment to Collateral Agreement and as amended and
restated by the 1995 Amended Collateral Agreement; all references in the
Mortgage Trust to the "Plan" are hereby deemed to refer to the 1995 Plan. In
each instance where the Mortgage is to be governed by, or is subject to, the
terms of the Plan or the Collateral Agreement, the Mortgage shall also be
governed by, or be subject to, the terms of the Indenture. The Mortgage is
hereby incorporated herein by this reference (subject to the modifications set
forth in this First Amendment), and Mortgagor hereby restates the grants,
mortgages and warrants made by Mortgagor in the Mortgage as if set forth
in their entirety herein, it being the intent of the parties hereto that the
Mortgage, as amended hereby, secures and shall continue to secure the
Liabilities of MRT (including, without limitation, repayment of the Notes) under
and pursuant to (i) the 1990 Plan, as amended by the 1992 Plan Amendment and as
further modified by the 1995 Plan, (ii) the Original Collateral Agreement, as
amended by the 1992 Amendment to Collateral Agreement and as amended and
restated by the 1995 Amended Collateral Agreement, and (iii) the Mortgage,
as amended by this First Amendment.
2. RATIFICATION OF LIEN. Neither this First Amendment, the 1995 Plan,
the Indenture, the reissuance of the Notes in replacement form nor the 1995
Amended Collateral Agreement extinguishes, terminates or acts as a novation of
(or will be deemed to extinguish, terminate or act as a novation of) the Deed of
Trust or the lien created thereby, or otherwise adversely affects or otherwise
impairs the lien created by the Mortgage, and the Mortgage and the
lien created thereby is hereby ratified and confirmed and remains validly
existing and in full force and effect. For purposes of the Mortgage, as
amended by this First Amendment, the term "Liabilities" shall not impose on MRT
any greater indebtedness, liability or obligation than as such term was defined
prior to the date of this First Amendment.
3. NO IMPOSITION OF PERSONAL LIABILITY. This First Amendment has been
executed on behalf of Mortgagor by the Treasurer and Chief Financial Officer in
his capacity as an officer of Mortgagor. As provided in section 7.2 of the
declaration of trust of Mortgagor, no trustee, officer, agent or shareholder of
Mortgagor shall be bound or held to any personal liability in connection with
the obligations of Mortgagor arising out of the execution of this First
Amendment. The execution of this First Amendment by the said individual shall
not bind the said individual and he shall not be held to any personal
3
liability in connection with the obligations under this First Amendment as a
result of such execution.
4. COUNTERPARTS. This First Amendment may be executed in any number of
counterparts and by different parties in separate counterparts, copies of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5. RATIFICATION OF ORIGINAL MORTGAGE. Except as amended hereby, the
original Mortgage is ratified and confirmed in all respects.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed by their respective duly authorized officers or other
representatives as of the day and year first above written.
MORTGAGOR:
MORTGAGE AND REALTY TRUST,
a Maryland real estate investment trust
By:____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer and Chief Financial Officer
MORTGAGEE:
WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not in its
individual capacity but solely as
Collateral Agent for Lenders
By:____________________________________
Name: ▇▇▇▇ ▇. St. Amand
Title: Assistant Vice President
_______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, not in his
individual capacity but solely
as Collateral Agent for Lenders
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SCHEDULE "I"
------------
Description of Security Document
PROPERTY NO: _____
COUNTY AND STATE: _____
Schedule I-1
EXHIBIT "A"
-----------
Description of the Real Estate
PROPERTY NO:______
COUNTY AND STATE: ______
A-1
[attach acknowledgments]
