Exhibit 4.3
415 GREENWICH GC, LLC, as mortgagor
(Borrower)
to
HSBC BANK USA, as collateral agent/trustee, as mortgagee
(Trustee/Collateral Agent)
-------------------------------------
MORTGAGE,
SECURITY AGREEMENT AND FIXTURE FILING
-------------------------------------
Dated: As of April 23, 2002
A commercial office building located at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Section:
Block:
Lot:
County: New York
PREPARED BY AND UPON
RECORDATION RETURN TO:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
THIS MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING (the "Security
Instrument") is made as of the 23rd day of April 2002, by 415 Greenwich GC, LLC,
a New York limited liability company, having its principal place of business c/o
Globix Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: General
Counsel, as mortgagor ("Borrower") to HSBC Bank USA, in its capacity as trustee
under the Indenture referred to below, as mortgagee and secured party for the
benefit of the Holders (as defined below), having its corporate trust office at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Trustee/Collateral Agent").
RECITALS:
Borrower, a wholly-owned subsidiary of Globix Corporation, Inc., the Issuer
under that certain Indenture (the "Indenture"), dated the date hereof, pursuant
to which Issuer authorized the issuance and sale of $120,000,000 aggregate
principal amount of its 11% Senior Secured Notes due 2008 (the "Securities",
such term to include any such Securities issued in substitution therefor
pursuant to the terms of the Indenture, are collectively referred to herein as
the "Note" or sometimes the "Notes") and Borrower guaranteed the Obligations (as
defined in the Indenture).
Borrower desires to secure the payment of a portion of the Debt (defined in
Article 3) in the principal sum of $65,166,666 and the performance of all of its
obligations under the Note, the Indenture and the Other Obligations (defined in
Article 3).
ARTICLE I
GRANTS OF SECURITY
Section 1.1 Property Mortgaged. Borrower does hereby irrevocably
------------------
mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey to
Trustee/Collateral Agent, and grant a security interest to Trustee/Collateral
Agent in, the following property, rights, interests and estates now owned, or
hereafter acquired by Borrower (collectively, the "Property"):
(a) Land. The real property described in Exhibit A attached hereto and made
----
a part hereof (the "Land");
(b) Additional Land. All ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ and development rights
---------------
hereafter acquired by Borrower for use in connection with the Land and the
development of the Land and all additional lands and estates therein which may,
from time to time, by supplemental mortgage or otherwise be expressly made
subject to the lien of this Security Instrument;
(c) Improvements. The buildings, structures, fixtures, additions,
------------
enlargements, extensions, modifications, repairs, replacements and improvements
now or hereafter erected or located on the Land (the "Improvements")(excluding
all superior rights of any tenants under signed leases or subleases (and/or
license agreements and/or occupancy agreements as the case may be) in and to the
equipment, fixtures, personalty, and physical improvements located or
2
erected on their respective demised premises as defined in each such lease or
sublease (the "Tenant Improvements") now in existence or hereafter made);
(d) Easements. All easements, rights-of-way or use, rights, strips and
---------
gores of land, streets, ways, alleys, passages, sewer rights, water, water
courses, water rights and powers, air rights and development rights, and all
estates, rights, titles, interests, privileges, liberties, servitudes,
tenements, hereditaments and appurtenances of any nature whatsoever, in any way
now or hereafter belonging, relating or pertaining to the Land and the
Improvements and the reversion and reversions, remainder and remainders, and all
land lying in the bed of any street, road or avenue, opened or proposed, in
front of or adjoining the Land, to the center line thereof and all the estates,
rights, titles, interests, dower and rights of dower, curtesy and rights of
curtesy, property, possession, claim and demand whatsoever, both at law and in
equity, of Borrower of, in and to the Land and the Improvements and every part
and parcel thereof, with the appurtenances thereto;
(e) Fixtures and Personal Property. All fixtures (as defined in the Uniform
------------------------------
Commercial Code hereinafter described), including, without limitation, all
machinery, equipment (as defined in the Uniform Commercial Code), fixtures
(including, but not limited to, all heating, air conditioning, plumbing,
lighting, communications and elevator fixtures) and other property of every kind
and nature whatsoever owned by Borrower, or in which Borrower has or shall have
an interest, now or hereafter located upon the Land and the Improvements, or
appurtenant thereto, and usable in connection with the present or future
operation and occupancy of the Land and the Improvements and all building
equipment, materials and supplies of any nature whatsoever owned by Borrower, or
in which Borrower has or shall have an interest, now or hereafter located upon
the Land and the Improvements, or appurtenant thereto, or usable in connection
with the present or future operation and occupancy of the Land and the
Improvements (collectively, the "Personal Property"), and the right, title and
interest of Borrower in and to any of the Personal Property which may be subject
to any security interests, as defined in the Uniform Commercial Code, as adopted
and enacted by the state or states where any of the Property is located (the
"Uniform Commercial Code"), superior in lien to the lien of this Security
Instrument, and all proceeds and products of all of the above;
(f) Leases and Rents. All leases, subleases and other agreements affecting
----------------
the use, enjoyment or occupancy of the Land and/or the Improvements heretofore
or hereafter entered into and all extensions, amendments and modifications
thereto, whether before or after the filing by or against Borrower of any
petition for relief under Creditors Rights Laws (defined in Article 10) (the
"Leases") and all right, title and interest of Borrower, its successors and
assigns therein and thereunder, including, without limitation, any guaranties of
the lessees' obligations thereunder, cash or securities deposited thereunder to
secure the performance by the lessees of their obligations thereunder and all
rents, additional rents, revenues, issues and profits (including all oil and gas
or other mineral royalties and bonuses) from the Land and the Improvements
whether paid or accruing before or after the filing by or against Borrower of
any petition for relief under the Creditors Rights Laws (the "Rents") and all
proceeds from the sale or other disposition of the Leases and the right to
receive and apply the Rents to the payment of the Debt;
(g) Insurance Proceeds. All proceeds of and any unearned premiums on any
-------------------
insurance policies covering the Property, including, without limitation, the
right to receive and
3
apply the proceeds of any insurance, judgments or settlements made in lieu
thereof, for damage to the Property;
(h) Condemnation Awards. All awards or payments, including interest
-------------------
thereon, which may heretofore and hereafter be made with respect to the
Property, whether from the exercise of the right of eminent domain (including,
but not limited to, any transfer made in lieu of or in anticipation of the
exercise of the right), or for a change of grade, or for any other injury to or
decrease in the value of the Property;
(i) Tax Certiorari. All refunds, rebates or credits in connection with a
--------------
reduction in real estate taxes and assessments charged against the Property as a
result of tax certiorari or any applications or proceedings for reduction net of
any costs and expenses incurred in connection with obtaining any such refunds,
rebates or credits;
(j) Conversion. All proceeds of the conversion, voluntary or involuntary,
----------
of any of the foregoing including, without limitation, proceeds of insurance and
condemnation awards, into cash or liquidation claims;
(k) Rights. Following the occurrence of an Event of Default, the right, in
------
the name and on behalf of Borrower, to appear in and defend any action or
proceeding brought with respect to the Property and to commence any action or
proceeding to protect the interest of Trustee/Collateral Agent in the Property;
(l) Agreements. All agreements, contracts, certificates, instruments,
----------
franchises, permits, licenses, plans, specifications and other documents, now or
hereafter entered into, and all rights therein and thereto, respecting or
pertaining to the use, occupation, construction, management or operation of the
Land and any part thereof and any Improvements or respecting any business or
activity conducted on the Land and any part thereof and all right, title and
interest of Borrower therein and thereunder, including, without limitation, the
right, upon the occurrence and during the continuance of an Event of Default
(defined in Article 10), to receive and collect any sums payable to Borrower
thereunder;
(m) Intangibles. All trade names, trademarks, servicemarks, logos,
-----------
copyrights, goodwill, books and records and all other general intangibles
(including payment intangibles), deposit accounts, instruments, investment
property, commercial tort claims, letter of credit rights, letters of credit,
money, documents, and chattel paper (as defined in the Uniform Commercial Code)
relating to or used in connection with the operation of the Property;
(n) Software. All software embedded within or used in connection with any
--------
of the property described above; and
(o) Other Rights. Any and all other rights of Borrower in and to the items
-------------
set forth in Subsections (a) through (n) above.
Section 1.2 Assignment of Leases and Rents. Borrower hereby absolutely
------------------------------
and unconditionally assigns to Trustee/Collateral Agent Borrower's right, title
and interest in and to all current and future Leases and Rents; it being
intended by Borrower that this assignment constitutes a present, absolute
assignment and not an assignment for additional security only.
4
Nevertheless, subject to the terms of this Section 1.2 and Section 4.8,
Trustee/Collateral Agent grants to Borrower a revocable license to collect and
receive the Rents. Borrower shall hold a portion of the Rents sufficient to
discharge all current sums due on the Debt, for use in the payment of such sums.
Section 1.3 Security Agreement. This Security Instrument is both a
------------------
real property mortgage and a "security agreement" within the meaning of the
Uniform Commercial Code. The Property includes both real and personal property
and all other rights and interests, whether tangible or intangible in nature, of
Borrower in the Property. By executing and delivering this Security Instrument,
Borrower hereby grants to Trustee/Collateral Agent, as security for the
Obligations (defined in Section 2.3), a security interest in the Property and
all other property described in this Security Instrument to the full extent that
the Property and all other property described in this Security Instrument may be
deemed "collateral" subject to the Uniform Commercial Code.
Section 1.4 Pledge of Monies Held. Borrower hereby pledges to
---------------------
Trustee/Collateral Agent any and all monies now or hereafter held by
Trustee/Collateral Agent, including, without limitation, any sums deposited in
the Escrow Fund (if any, and as defined in Section 4.5), Net Proceeds (defined
in Section 4.7) and condemnation awards or payments described in Section 4.6, as
additional security for the Obligations until expended or applied as provided in
this Security Instrument.
Section 1.5 Financing Statements. Borrower shall file and hereby
--------------------
authorizes Trustee/Collateral Agent to file, at Borrower's expense, such
financing, amendment and/or continuation statements as required by applicable
law or as Trustee/Collateral Agent believes is necessary or desirable to create,
perfect and/or preserve Trustee/Collateral Agent's security interest hereunder.
Borrower shall promptly notify Trustee/Collateral Agent if Borrower (a)
re-domesticates to another state, (b) moves its chief executive office to
another state, (c) changes its name or (d) is merged into another entity. For
purposes of such filings, Borrower agrees to furnish any information requested
by Trustee/Collateral Agent promptly upon Trustee/Collateral Agent's request.
Borrower is a registered organization (as defined in the Uniform Commercial
Code), organized solely under the laws of the State of New York. Borrower shall
promptly notify Trustee/Collateral Agent of any change in its organizational
identification number. If Borrower does not have an organizational
identification number and later obtains one, Borrower promptly shall notify
Trustee/Collateral Agent of such organization identification number.
Section 1.6 Fixture Filing. This Security Instrument shall also
--------------
constitute a "fixture filing" for the purposes of the Uniform Commercial Code
against all of the Property which is or is to become fixtures. Information
concerning the security interest herein granted may be obtained at the addresses
of Debtor (Borrower) and Secured Party (Trustee/Collateral Agent) as set forth
in the first paragraph of this Mortgage. Notwithstanding the foregoing, Borrower
shall also file, and hereby authorizes Trustee/Collateral Agent to file, at
Borrower's expense, financing statements required or permitted in the filing
office (as defined in the Uniform Commercial Code) to perfect or to maintain
perfection of a security interest in the Fixtures.
5
ARTICLE II
CONDITIONS TO GRANT
TO HAVE AND TO HOLD the above granted and described Property to the use and
benefit of the Trustee/Collateral Agent, and the successors and assigns of
Trustee/Collateral Agent, forever;
PROVIDED, HOWEVER, these presents are upon the express condition that, if
Borrower shall well and truly pay to Trustee/Collateral Agent the Debt at the
time and in the manner provided in the Note, the Indenture and this Security
Instrument, shall perform the Other Obligations as set forth in this Security
Instrument and shall abide by and comply with each and every covenant and
condition set forth herein, the Indenture and in the Note, these presents and
the estate hereby granted shall cease, terminate and be void.
ARTICLE III
DEBT AND OBLIGATIONS SECURED
Section 3.1 Debt. This Security Instrument and the grants, assignments
----
and transfers made in Article I are given for the purpose of securing the
payment of the following, in such order of priority as Trustee/Collateral Agent
may determine in its sole discretion (the "Debt"):
(a) the indebtedness evidenced by the Note and the Indenture in lawful
money of the United States of America;
(b) interest, default interest, late charges and other sums, as provided in
the Note, the Indenture, this Security Instrument or the Other Security
Documents (defined in Section 4.2);
(c) all other monies agreed or provided to be paid by Borrower in the Note,
the Indenture, this Security Instrument or the Other Security Documents;
(d) the Redemption Price (defined in the Note and the Indenture), if any;
(e) all sums advanced pursuant to this Security Instrument to protect and
preserve the Property and the lien and the security interest created hereby; and
(f) all sums advanced and costs and expenses reasonably incurred by
Trustee/Collateral Agent in connection with the Debt or any part thereof, any
renewal, extension, or change of or substitution for the Debt or any part
thereof, or the acquisition or perfection of the security therefor, whether made
or incurred at the request of Borrower or Trustee/Collateral Agent.
Section 3.2 Other Obligations. This Security Instrument and the
-----------------
grants, assignments and transfers made in Article I are also given for the
purpose of securing the performance of the following (the "Other Obligations"):
6
(a) all other obligations of Borrower contained herein;
(b) each obligation of Borrower contained in the Note, the Indenture and in
the Other Security Documents; and
(c) each obligation of Borrower contained in any renewal, extension,
amendment, modification, consolidation, change of, or substitution or
replacement for, all or any part of the Note, the Indenture, this Security
Instrument or the Other Security Documents.
Section 3.3 Debt and Other Obligations. Borrower's obligations for the
--------------------------
payment of the Debt and the performance of the Other Obligations shall be
referred to collectively as the "Obligations."
Section 3.4 Payments. Unless payments are made in the required amount
--------
in immediately available funds at the place where the Note is payable,
remittances in payment of all or any part of the Debt shall not, regardless of
any receipt or credit issued therefor, constitute payment until the required
amount is actually received by Trustee/Collateral Agent in funds immediately
available at the place where the Note is payable and shall be made and accepted
subject to the condition that any check or draft may be handled for collection
in accordance with the practice of the collecting bank or banks; provided,
however, Trustee/Collateral Agent shall not be required to accept payment for
any Obligation in cash. Acceptance by Trustee/Collateral Agent of any payment in
an amount less than the amount then due shall be deemed an acceptance on account
only, and the failure to pay the entire amount then due shall, after the
expiration of any applicable cure period, be and continue to be an Event of
Default.
ARTICLE IV
BORROWER COVENANTS
Borrower covenants and agrees that:
Section 4.1 Payment of Debt. Borrower will pay the Debt at the time
---------------
and in the manner provided in the Note, the Indenture and in this Security
Instrument.
Section 4.2 Incorporation by Reference. All the covenants, conditions
--------------------------
and agreements contained in (a) the Note, (b) the Indenture, and (c) all and any
of the documents other than the Note, the Indenture or this Security Instrument
now or hereafter executed by Borrower and/or others and by or in favor of
Trustee/Collateral Agent, which wholly or partially secure or guaranty payment
of the Note and the Indenture or are otherwise executed and delivered in
connection with the Debt, including, without limitation, those certain Pledge
and General Security Agreements (the "Pledge Agreements") and that certain
Assignment of Lessee's Interest In Lease (the "Other Security Documents"), are
hereby made a part of this Security Instrument to the same extent and with the
same force as if fully set forth herein.
Section 4.3 Insurance.
---------
(a) Borrower shall obtain and maintain, or cause to be maintained,
insurance for Borrower and the Property providing at least the following
coverages:
7
(i) Property Insurance. Property Insurance against loss customarily
------------------
included under so called "All Risk" policies including flood,
vandalism, and malicious mischief, boiler and machinery, and such
other insurable hazards as, under good insurance practices, from
time to time are insured against for other property and buildings
similar to the premises in nature, use, location, height, and
type of construction in amounts at all times sufficient to
prevent Trustee/Collateral Agent from becoming a co-insurer
within the terms of the applicable policies and under applicable
insurance law, but in any event such insurance shall be
maintained in an amount which, after application of deductible,
shall be equal to the full insurable value of the Improvements
and Personal Property, the term "full insurable value" to mean
the actual replacement cost of the Improvements and Personal
Property (without taking into account any depreciation, and
exclusive of excavations, footings and foundations, landscaping
and paving) determined annually by an insurer, a recognized
independent insurance broker or an independent appraiser selected
and paid by Borrower and in no event less than the coverage
required pursuant to the terms of any Lease;
(ii) Liability Insurance. Commercial general liability insurance on
-------------------
the so-called "occurrence" form, including bodily injury, death
and property damage liability, insurance against any and all
claims, except those claims resulting from the gross negligence
of Trustee/Collateral Agent, including all legal liability to the
extent insurable and imposed upon Trustee/Collateral Agent and
all court costs and attorneys' fees and expenses, arising out of
or connected with the possession, use, leasing, operation,
maintenance or condition of the Property in such amounts as are
generally available at commercially reasonable premiums and are
generally required by institutional lenders for properties
comparable to the Property but in any event for a limit per
occurrence of at least $1,000,000.00 and an annual aggregate of
at least $2,000,000.00.
(iii) Workers' Compensation Insurance. Statutory workers' compensation
-------------------------------
insurance with respect to any work on or about the Property.
(iv) Business Interruption. Business interruption and/or loss of
---------------------
"rental income" insurance in an amount sufficient to avoid any
co-insurance penalty and to provide proceeds which will cover a
period of not less than twelve (12) months from the date of
casualty or loss, the term "rental income" to mean the sum of (A)
the total then ascertainable Rents payable under the Leases and
(B) the total ascertainable amount of all other amounts to be
received by Borrower from third parties which are the legal
obligation of
8
the tenants, reduced to the extent such amounts would not be
received because of operating expenses not incurred during a
period of non-occupancy of that portion of the Property then not
being occupied;
(v) Boiler and Machinery Insurance. Broad form boiler and machinery
------------------------------
insurance (without exclusion for explosion) covering all boilers
or other pressure vessels, machinery and equipment located in, on
or about the Property and insurance against loss of occupancy or
---
use arising from any breakdown in such amounts as are generally
required by institutional lenders for properties comparable to
the Property;
(vi) Flood Insurance. If required by Subsections 5.4(e) and 7.5, flood
---------------
insurance in an amount at least equal to the lesser of (A) the
aggregate principal amount of the outstanding Notes, or (B) the
maximum limit of coverage available for the Property under the
National Flood Insurance Act of 1968, The Flood Disaster
Protection Act of 1973 and the National Flood Insurance Reform
Act of 1994, as each may be amended (the "Flood Insurance Acts");
(vii) Builder's Risk Insurance. At all times during which structural
------------------------
construction, repairs or alterations are being made with respect
to the Improvements (A) owner's contingent or protective
liability insurance covering claims not covered by or under the
-----------------------
terms or provisions of the above mentioned commercial general
-------------------------------------------------------------
liability insurance policy; and (B) the insurance provided for in
Subsection 4.3(a)(i) written in a so-called builder's risk
completed value form (1) on a non-reporting basis, (2) against
all risks insured against pursuant to Subsection 4.3(a)(i), (3)
including permission to occupy the Property and (4) with an
agreed amount endorsement waiving co-insurance provisions; and
(viii) Other Insurance. Such other insurance with respect to the
--------------- -------
Property against loss or damage of the kinds from time to time
customarily insured against and in such amounts as required by
institutional lenders for properties comparable to the Property.
(b) All insurance provided for in Subsection 4.3(a) shall be obtained under
valid and enforceable policies (the "Policies" or in the singular, the
"Policy"), and shall be issued by either the insurers who insure the
Improvements on the date of this Security Instrument or one or more other
domestic primary insurer(s) having (i) a claims paying ability rating by
Standard & Poor's Rating Services or ▇▇▇▇▇'▇ Investors Service, Inc. (a "Rating
Agency") of not less than one rating category below the highest rating at any
time assigned to the Securities, but in no event a rating less than investment
grade by such Rating Agency and (ii) a general policy rating of A or better and
a financial class of X/score or better by A.M. Best Company, Inc. (or if a
rating of
9
A.M. Best Company Inc. is no longer available, a similar rating from a similar
or successor service) (each such insurer shall be referred to below as a
"Qualified Insurer"). All insurers providing insurance required by this Security
Instrument shall be authorized to issue insurance in the state in which the
Property is located. The Policy referred to in Subsection 4.3(a)(ii) above shall
name Trustee/Collateral Agent as an additional insured and the Policies referred
to in Subsection 4.3(a)(i), (iv), (v), (vi) and (vii), and as applicable (viii),
above shall provide that all proceeds be payable to Trustee/Collateral Agent as
set forth in Section 4.7 hereof. The Policies referred to in Subsections
4.3(a)(i), (v), (vi) and (vii) shall also contain: (i) a standard
"non-contributory mortgagee" endorsement or its equivalent relating, inter alia
----- ----
to recovery by Trustee/Collateral Agent notwithstanding the negligent or willful
acts or omission of Borrower; (ii) to the extent available at commercially
reasonable rates, a waiver of subrogation endorsement as to Trustee/Collateral
Agent; and (iii) an endorsement providing for a deductible per loss of an amount
not more than that which is customarily maintained by prudent owners of similar
properties in the general vicinity of the Property, but in no event in excess of
$250,000. The Policy referred to in Subsection 4.3(a)(i) above shall provide
coverage for contingent liability from Operation of Building Laws, Demolition
Costs and Increased Cost of Construction Endorsements, together with an
"Ordinance or Law Coverage" or "Enforcement" endorsement. All Policies shall
contain (i) a provision that such Policies shall not be denied renewal,
materially changed (other than to increase the coverage provided), cancelled or
terminated, nor shall they expire, without at least thirty (30) days' prior
written notice to Trustee/Collateral Agent in each instance; and (ii) include
effective waivers by the insurer of all claims for applicable premiums
("Insurance Premiums") against any mortgagee, loss payees, additional insureds
and named insureds (other than Borrower). Certificates of insurance with respect
to all renewal and replacement Policies shall be delivered to Trustee/Collateral
Agent not less than twenty (20) days prior to the expiration date of any of the
Policies required to be maintained hereunder which certificates shall bear
notations evidencing payment of Insurance Premiums. Originals or certificates of
such replacement Policies shall be delivered to Trustee/Collateral Agent
promptly after Borrower's receipt thereof but in any case within thirty (30)
days after the effective date thereof. If Borrower fails to maintain and deliver
to Trustee/Collateral Agent the original Policies or certificates of insurance
required by this Security Instrument, upon ten (10) days' prior notice to
Borrower, Trustee/Collateral Agent may procure such insurance at Borrower's sole
cost and expense.
(c) Borrower shall comply with all insurance requirements and shall not
bring or keep or permit to be brought or kept any article upon any of the
Property or cause or permit any condition to exist thereon which would be
prohibited by an insurance requirement, or would invalidate the insurance
coverage required hereunder to be maintained by Borrower on or with respect to
any part of the Property pursuant to this Section 4.3.
(d) In the event of a foreclosure of the Security Instrument or other
transfer of title to the Property in extinguishment in whole or in part of the
Debt, all right, title and interest of Borrower in and to the Policies then in
force concerning the Property and all proceeds payable thereunder shall
thereupon vest in Trustee/Collateral Agent or the purchaser at such foreclosure
or other transferee in the event of such other transfer of title.
10
Section 4.4 Payment of Taxes, etc.
---------------------
(a) Borrower shall promptly pay by their due date all taxes, assessments,
water rates, sewer rents and other governmental impositions, including, without
limitation, vault charges and license fees for the use of vaults, chutes and
similar areas adjoining the Land, now or hereafter levied or assessed or imposed
against the Property or any part thereof (the "Taxes") not paid from the Escrow
Fund (defined in Section 4.5), all ground rents, maintenance charges and similar
charges, now or hereafter levied or assessed or imposed against the Property or
any part thereof (the "Other Charges"), and all charges for utility services
provided to the Property as same become due and payable. Borrower will deliver
to Trustee/Collateral Agent, promptly upon Trustee/Collateral Agent's request,
evidence satisfactory to Trustee/Collateral Agent that the Taxes, Other Charges
and utility service charges have been so paid or are not then delinquent.
Borrower shall not suffer and shall promptly cause to be paid and discharged any
lien or charge whatsoever which may be or become a lien or charge against the
Property. Except to the extent sums sufficient to pay all Taxes and Other
Charges have been deposited with Trustee/Collateral Agent in accordance with the
terms of this Security Instrument, Borrower shall furnish to Trustee/Collateral
Agent paid receipts for the payment of the Taxes and Other Charges prior to the
date the same shall become delinquent.
(b) After prior written notice to Trustee/Collateral Agent, Borrower, at
its own expense, may contest by appropriate legal proceeding, promptly initiated
and conducted in good faith and with due diligence, the amount or validity or
application in whole or in part of any of the Taxes, provided that (i) no Event
of Default has occurred and is continuing under the Note, the Indenture, this
Security Instrument or any of the Other Security Documents, (ii) Borrower is
permitted to do so under the provisions of any other mortgage, deed of trust or
deed to secure debt affecting the Property, (iii) such proceeding shall suspend
the collection of the Taxes from Borrower and from the Property or Borrower
shall have paid all of the Taxes under protest, (iv) such proceeding shall be
permitted under and be conducted in accordance with the provisions of any other
material document to which Borrower is subject and shall not constitute a
default thereunder, (v) neither the Property nor any part thereof or interest
therein will be in danger of being sold, forfeited, terminated, cancelled or
lost and (vi) Borrower shall have deposited with Trustee/Collateral Agent
adequate reserves for the payment of the Taxes, together with all interest and
penalties thereon, unless Borrower has paid all of the Taxes under protest, or
Borrower shall have furnished the security as may be required in the proceeding,
or as may be reasonably requested by Trustee/Collateral Agent (it is understood
that Trustee/Collateral Agent is under no obligation to make such request) to
insure the payment of any contested Taxes, together with all interest and
penalties thereon, taking into consideration the amount in the Escrow Fund
available for payment of Taxes.
Section 4.5 Escrow Fund. Borrower shall pay all Taxes and Insurance
-----------
Premiums and shall provide Trustee/Collateral Agent, on the date hereof, on each
anniversary of the date hereof for so long as the Obligations remain
outstanding, and at any time, from time to time that Trustee/Collateral Agent
shall request, an Officer's Certificate (as defined in the Indenture) which
certifies and delivers true and correct copies of evidence of payment of all
Taxes and Insurance Premiums. In the event Borrower fails to comply with the
obligations set forth in the immediately preceding sentence and such failure
constitutes a continuing Event of Default under the Indenture,
Trustee/Collateral Agent may, at its option, collect such amounts
11
with respect to Taxes and Insurance Premiums from Borrower. In such case,
Borrower shall pay to Trustee/Collateral Agent on the first day of each calendar
month (a) one-twelfth of an amount which would be sufficient to pay the Taxes
payable, or estimated by Trustee/Collateral Agent to be payable, during the next
ensuing twelve (12) months and (b) one-twelfth of an amount which would be
sufficient to pay the Insurance Premiums due for the renewal of the coverage
afforded by the Policies upon the expiration thereof (the amounts in (a) and (b)
above shall be called the "Escrow Fund"). Borrower agrees to notify
Trustee/Collateral Agent immediately of any changes to the amounts, schedules
and instructions for payment of any Taxes and Insurance Premiums of which it has
or obtains knowledge and authorizes Trustee/Collateral Agent or its agent to
obtain the bills for Taxes directly from the appropriate taxing authority. The
Escrow Fund and the payments of interest or principal or both, payable pursuant
to the Note and the Indenture shall be added together and shall be paid as an
aggregate sum by Borrower to Trustee/Collateral Agent. Provided there are
sufficient amounts in the Escrow Fund and a continuing Event of Default under
the Indenture exists, Trustee/Collateral Agent shall be obligated to pay the
Taxes and Insurance Premiums as they become due on their respective due dates on
behalf of Borrower by applying the Escrow Fund to the payments of such Taxes and
Insurance Premiums required to be made by Borrower pursuant to Sections 4.3 and
4.4. If the amount of the Escrow Fund shall exceed the amounts due for Taxes and
Insurance Premiums pursuant to Sections 4.3 and 4.4, Trustee/Collateral Agent
shall, in its discretion, return any excess to Borrower or credit such excess
against future payments to be made to the Escrow Fund. In allocating such
excess, Trustee/Collateral Agent may deal with the person shown on the records
of Trustee/Collateral Agent to be the owner of the Property. If the Escrow Fund
is not sufficient to pay the items set forth in (a) and (b) above, Borrower
shall promptly pay to Trustee/Collateral Agent, upon demand, an amount which
Trustee/Collateral Agent shall reasonably estimate as sufficient to make up the
deficiency. The Escrow Fund shall not constitute a trust fund and may be
commingled with other monies held by Trustee/Collateral Agent. Unless otherwise
required by applicable state or federal law, no earnings or interest on the
Escrow Fund shall be payable to Borrower.
Section 4.6 Condemnation. Borrower shall promptly give
------------
Trustee/Collateral Agent notice of the actual or threatened commencement of any
condemnation or eminent domain proceeding and shall deliver to
Trustee/Collateral Agent copies of any and all papers served in connection with
such proceedings. Notwithstanding any taking by any public or quasi-public
authority through eminent domain or otherwise (including, but not limited to any
transfer made in lieu of or in anticipation of the exercise of such taking),
Borrower shall continue to pay the Debt at the time and in the manner provided
for its payment in the Note, the Indenture and in this Security Instrument and
the Debt shall not be reduced until any award or payment therefor shall have
been actually received by Trustee/Collateral Agent, after the deduction of
reasonable expenses of collection, to the reduction or discharge of the Debt.
Trustee/Collateral Agent shall not be limited to the interest paid on the award
by the condemning authority but shall be entitled to receive out of the award
interest at the rate or rates provided in the Note or the Indenture. Borrower
shall cause the award or payment made in any condemnation or eminent domain
proceeding, which is payable to Borrower, to be paid directly to
Trustee/Collateral Agent. Trustee/Collateral Agent shall hold any such funds in
a non-interest bearing escrow account and may apply any award or payment to the
reduction or discharge of the Debt when such Debt becomes due and payable in
whole or in part. If the Property is sold, through foreclosure or otherwise,
prior to the receipt by Trustee/Collateral Agent of the award or payment,
12
Trustee/Collateral Agent shall have the right, whether or not a deficiency
judgment on the Note or the Indenture (to the extent permitted in the Note or
the Indenture or herein) shall have been sought, recovered or denied, to receive
the award or payment, or a portion thereof sufficient to pay the Debt.
Section 4.7 Restoration After Casualty or Condemnation. In the event
------------------------------------------
of a casualty or a taking by eminent domain, the following provisions shall
apply in connection with the Restoration (defined below) of the Property:
(a) If the Property shall be damaged or destroyed, in whole or in part, by
fire or other casualty, or if the Property or any portion thereof is taken in
any condemnation or eminent domain proceeding, Borrower shall give prompt notice
of such damage or taking to Trustee/Collateral Agent and shall promptly commence
and diligently prosecute the completion of the repair and restoration of the
Property as nearly as possible to the condition the Property was in immediately
prior to such fire or other casualty or taking (the "Restoration").
(b) The term "Net Proceeds" for purposes of this Section 4.7 shall mean:
(i) the net amount of all insurance proceeds under the policies carried pursuant
to the Indenture as a result of such damage or destruction, after deduction of
reasonable costs and expenses (including, but not limited to reasonable counsel
fees), if any, in collecting the same, or (ii) the net amount of all awards and
payments received with respect to a taking referenced in Section 4.6 of this
Security Instrument, after deduction of reasonable costs and expenses
(including, but not limited to reasonable counsel fees), if any, in collecting
the same, whichever the case may be. The parties hereby agree that Borrower
shall have the right to collect and apply the Net Proceeds as stated in this
Security Instrument provided such amount is not greater than $250,000. If such
amount of Net Proceeds exceeds $250,000, then Trustee/Collateral Agent shall
collect and apply such amounts as stated in Section 4.7 of this Security
Instrument. If (i) the Net Proceeds do not exceed $500,000 (the "Net Proceeds
Availability Threshold"); (ii) the costs of completing the Restoration as
reasonably estimated by Borrower shall be less than or equal to the Net
Proceeds; (iii) no Event of Default shall have occurred and be continuing beyond
all applicable cure periods under the Note, the Indenture, this Security
Instrument or any of the Other Security Documents; (iv) the Property and the use
thereof after the Restoration will be in compliance with, and permitted under,
all applicable zoning laws, ordinances, rules and regulations (including,
without limitation, laws relating to legal nonconforming structures or uses and
all applicable Environmental Laws (defined in Section 12. 1); (v) (A) if the Net
Proceeds are insurance proceeds, less than thirty-three and a third percent (33
1/3%) of the total floor area of the Improvements has been damaged or destroyed,
or rendered unusable as a result of such fire or other casualty; or (B) if the
Net Proceeds are condemnation awards, less than 33 1/3% of the Land constituting
the Property is taken, such Land that is taken is located along the perimeter or
periphery of the Property, no portion of the Improvements is located in such
Lands, and such taking does not materially impair access to the Property; and
(vi) Borrower has delivered an Officer's Certificate that certifies that any
operating deficits, including all scheduled payments of principal and interest
under the Note or the Indenture which will be incurred with respect to the
Property as a result of the occurrence of any such fire or other casualty or
taking, whichever the case may be, will be covered out of (1) the Net Proceeds,
or (2) other funds of Borrower, then the Net Proceeds will be disbursed directly
to Borrower.
13
(c) If the Net Proceeds are greater than the Net Proceeds Availability
Threshold, such Net Proceeds shall, subject to the provisions of the Leases that
are superior to the lien of this Security Instrument or with respect to which
subordination and non-disturbance agreements binding upon Trustee/Collateral
Agent have been entered into and such subordination and non-disturbance
agreements apply to the deposits of Net Proceeds, be forthwith paid to
Trustee/Collateral Agent to be held by Trustee/Collateral Agent in a segregated
account to be made available to Borrower for the Restoration in accordance with
the provisions of Subsection 4.7(d).
(d) The Net Proceeds held by Trustee/Collateral Agent pursuant to
Subsection 4.7(c) shall be made available to Borrower for payment or
reimbursement of Borrower's expenses in connection with the Restoration, subject
to the receipt by Trustee/Collateral Agent of an Officer's Certificate
certifying the satisfaction of the following conditions:
(i) no Event of Default shall have occurred and be continuing beyond
all applicable cure periods under the Note, the Indenture, this Security
Instrument or any of the Other Security Documents;
(ii) intentionally omitted;
(iii) the Net Proceeds, together with any cash or cash equivalent
deposited by Borrower with Trustee/Collateral Agent, are sufficient to cover the
cost of the Restoration as such costs are certified by the independent
architect;
(iv) Net Proceeds are less than the then outstanding principal amount
of the Note;
(v) (A) in the event that the Net Proceeds are insurance proceeds,
less than thirty-three and a third percent (33 1/3%) of the total floor area of
the Improvements has been damaged or destroyed, or rendered unusable as a result
of such fire or other casualty; or (B) in the event that the Net Proceeds are
condemnation awards, less than 33 1/3% of the Land constituting the Property is
taken, such Land that is taken is located along the perimeter or periphery of
the Property, no portion of the Improvements is located in such Lands and such
taking does not materially impair access to the Property;
(vi) any operating deficits, including all scheduled payments of
principal and interest under the Note or the Indenture which will be incurred
with respect to the Property as a result of the occurrence of any such fire or
other casualty or taking, whichever the case may be, will be covered out of (1)
the Net Proceeds, or (2) other funds of Borrower;
(vii) upon the completion of the Restoration, the net cash flow of the
Property will be restored to a level sufficient to cover all carrying costs and
operating expenses of the Property and all required replacement reserves,
reserves for tenant improvements and leasing commissions;
(viii) the Restoration can reasonably be completed on or before the
earliest to occur of (A) six (6) months prior to the Maturity Date (defined in
the Note),
14
(B) intentionally omitted, and (C) such time as may be required under applicable
zoning law, ordinance, rule or regulation in order to repair and restore the
Property to as nearly as possible the condition it was in immediately prior to
such fire or other casualty or to such taking, as applicable; and
(ix) the Property and the use thereof after the Restoration will be in
compliance with, and permitted under, all applicable zoning laws, ordinances,
rules and regulations (including, without limitation, laws relating to legal
nonconforming structures or uses and all applicable Environmental Laws (defined
in Section 12. 1).
(e) The Net Proceeds held by Trustee/Collateral Agent until disbursed in
accordance with the provisions of this Section 4.7 shall constitute additional
security for the Obligations. The Net Proceeds other than the Net Proceeds paid
under the Policy described in Subsection 4.3(a) shall be disbursed by
Trustee/Collateral Agent to, or as directed by, Borrower, in an amount equal to
the costs actually incurred from time to time for work in place as part of the
Restoration less customary retainage from time to time during the course of the
Restoration, not more frequently than once per month, upon receipt of an
Officer's Certificate certifying that (A) all materials installed and work and
labor performed (except to the extent that they are to be paid for out of the
requested disbursement) in connection with the Restoration have been paid for in
full, and (B) there exist no notices of pendency, stop orders, mechanic's or
materialman's liens or notices of intention to file the same, or any other liens
or encumbrances of any nature whatsoever on the Property arising out of the
Restoration which have not either been fully bonded and discharged of record or
in the alternative fully insured to the reasonable satisfaction of
Trustee/Collateral Agent by the title company insuring the lien of this Security
Instrument. The Net Proceeds paid under the policy described in Subsection
4.3(a) may be utilized in a manner as provided in this Section 4.7 so long as no
Event of Default is continuing under the Indenture, and in the manner set forth
in the Indenture so long as an Event of Default is continuing under the
Indenture. Final payment shall be made after submission to Trustee/Collateral
Agent (i) an Officer's Certificate submitting certified copies of all licenses,
permits, certificates of occupancy and other required governmental approvals
having jurisdiction and (ii) Casualty Consultant's (defined below) certification
that the Restoration has been fully completed.
(f) Trustee/Collateral Agent shall have the use of the plans and
specifications and all permits, licenses and approvals required or obtained in
connection with the Restoration. The identity of the contractors, subcontractors
and materialmen engaged in the Restoration, as well as the contracts under which
they have been engaged, shall be subject to prior review and acceptance by an
independent consulting engineer selected by Borrower (the "Casualty
Consultant"). All costs and reasonable expenses incurred by Trustee/Collateral
Agent in connection with making the Net Proceeds available for the Restoration
including, without limitation, reasonable counsel fees and disbursements and the
Casualty Consultant's fees, shall be paid by Borrower.
(g) If at any time the Net Proceeds or the undisbursed balance thereof
shall not be sufficient to pay in full the balance of the costs which are
estimated by the Casualty Consultant to be incurred in connection with the
completion of the Restoration, Borrower shall deposit the deficiency in
immediately available funds (the "Net Proceeds Deficiency") with
Trustee/Collateral Agent before any further disbursement of the Net Proceeds
shall be made. The
15
Net Proceeds Deficiency deposited with Trustee/Collateral Agent shall be held by
Trustee/Collateral Agent and shall be disbursed for costs actually incurred in
connection with the Restoration on the same conditions applicable to the
disbursement of the Net Proceeds, and until so disbursed pursuant to this
Section 4.7 shall constitute additional security for the Obligations.
(h) Except upon the occurrence and continuance of an Event of Default,
Borrower shall settle any insurance claims with respect to the Net Proceeds.
Trustee/Collateral Agent shall have the right, but not the obligation, to
participate in and reasonably approve any settlement for insurance claims with
respect to the Net Proceeds. If an Event of Default shall have occurred and be
continuing, Borrower hereby irrevocably empowers Trustee/Collateral Agent, in
the name of Borrower as its true and lawful attorney-in-fact, to file and
prosecute such claim and to collect and to make receipt for any such payment. If
the Net Proceeds are received by Borrower, such Net Proceeds shall, until the
completion of the related work, be held in trust for Trustee/Collateral Agent
and shall be segregated from other funds of Borrower to be used to pay for the
cost of the Restoration in accordance with the terms hereof.
(i) The excess, if any, of the Net Proceeds and the remaining balance, if
any, of the Net Proceeds Deficiency deposited with Trustee/Collateral Agent
after (i) the Casualty Consultant certifies to Trustee/Collateral Agent that the
Restoration has been completed in accordance with the provisions of this Section
4.7, and (ii) the receipt by Trustee/Collateral Agent of the Officer's
Certificate referred to above certifying that all costs incurred in connection
with the Restoration have been paid in full and all required permits, licenses,
certificates of occupancy and other required approvals of governmental
authorities having jurisdiction have been issued, shall be remitted by
Trustee/Collateral Agent to Borrower, provided no Event of Default shall have
occurred and shall be continuing beyond all applicable cure periods under the
Note, the Indenture, this Security Instrument or any of the Other Security
Documents.
(j) All Net Proceeds not required (i) to be made available for the
Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant
to Subsection 4.7(h) shall be retained by Trustee/Collateral Agent in a
non-interest bearing account and applied toward the payment of the Debt as and
when such shall become due and payable in accordance with the Indenture or the
Note. If Trustee/Collateral Agent shall receive and retain Net Proceeds, the
lien of this Security Instrument shall be reduced only by the amount received
and retained by Trustee/Collateral Agent and actually applied by
Trustee/Collateral Agent in reduction of the Debt.
16
Section 4.8 Leases and Rents.
----------------
(a) In the event Borrower seeks to enter into any future Lease (including
the renewal or extension of an existing Lease) for all or any portion of the
Property, such Lease shall: (i) provide for rental rates and terms comparable to
existing local market rates and terms (taking into account the type and quality
of the tenant) as of the date such Lease is executed by Borrower (unless, in the
case of a renewal Lease, the rent payable during such renewal, or a formula or
other method to compute such rent, is provided for in the original Lease), (ii)
constitute an arms-length transaction with a bona fide, independent third party
tenant, (iii) not have a materially adverse effect on the value of the Property
taken as a whole, (iv) be subject and subordinate to the Security Instrument,
either pursuant to its terms or a recordable subordination agreement and the
lessee thereunder agrees to attorn to Trustee/Collateral Agent, (v) provide that
no rents shall be collected for more than one (1) month in advance (except a
security deposit shall not be deemed rent collected in advance); (vii) not
contain an option to purchase, right of first refusal to purchase, or any other
similar provision; (viii) not have the benefit of a non-disturbance agreement
that would be considered unacceptable to prudent institutional lenders; and (xi)
be written on a standard form of lease similar in nature to those used in
similar buildings for similar uses in the general area of the Property.
Furthermore, at the time of entering into any Lease (w) there shall not be any
continuing default under this Security Instrument, Note, Indenture, Pledge
Agreements or Other Security Documents; (x) all amounts of all security deposits
relating to any Leases shall have been collected by Borrower and shall be held
in accordance with applicable law; and (y) no brokerage commissions or finders
fees shall be due and payable regarding any Lease. Borrower shall promptly
deliver to Trustee/Collateral Agent true and correct copies of all Leases which
are entered into pursuant to this Subsection together with an Officer's
Certificate (as defined in the Indenture) certifying that such Lease has
satisfied all of the conditions of this Subsection.
(b) For so long as the Debt is outstanding, Borrower (i) shall observe and
perform all the obligations imposed upon the lessor under the Leases and shall
not do or permit to be done anything to materially impair the value of any of
the Leases as security for the Debt; (ii) upon request, shall promptly send
copies to Trustee/Collateral Agent of all notices of default which Borrower
shall send or receive thereunder; (iii) shall enforce all of the material terms,
covenants and conditions contained in the Leases upon the part of the tenant
thereunder to be observed or performed; (iv) shall not collect any of the Rents
more than one (1) month in advance (except security deposits shall not be deemed
Rents collected in advance); (v) shall not execute any other assignment of the
lessor's interest in any of the Leases or the Rents; and (vi) shall not consent
to any assignment of or subletting under any Leases not in accordance with their
terms.
(c) Borrower may, without the consent of Trustee/Collateral Agent, amend,
modify or waive the provisions of any Lease or terminate, reduce rents under,
accept a surrender of space under, or shorten the term of, any Lease (including
any guaranty, letter of credit or other credit support with respect thereto)
provided that such action (taking into account, in the case of a termination,
reduction in rent, surrender of space or shortening of term, the planned
alternative use of the affected space) does not have a materially adverse effect
on the value of the Property taken as a whole, and provided that such Lease, as
amended, modified or waived, is otherwise in compliance with the requirements of
this Security Instrument and Permitted Senior Secured Debt (as set forth and
described in the Indenture), if any. A termination of a Lease with a tenant who
is
17
in default beyond applicable notice and grace periods shall not be considered an
action which has a materially adverse effect on the value of the Property taken
as a whole. Borrower shall promptly deliver to Trustee/Collateral Agent copies
of amendments, modifications and waivers which are entered into pursuant to this
Subsection together with an Officer's Certificate certifying that Borrower has
satisfied all of the conditions of this Subsection.
Section 4.9 Maintenance and Use of Property. Borrower shall cause the
-------------------------------
Property to be maintained in a good and safe condition and repair. The
Improvements (excluding Tenant Improvements) and the Personal Property (except
as otherwise permitted by the Pledge Agreements) shall not be removed,
demolished or materially altered (except for normal replacement of the Personal
Property, such modifications as are necessary for the normal operation of
Borrower's business, or such tenant improvements/build-out work as is necessary
to induce a tenant of a Lease to lease such space in accordance with Section
4.8(a) above) without the consent of Holders of a majority in the aggregate
principal amount of the outstanding Notes. Borrower shall promptly repair,
replace or rebuild any part of the Property which may be destroyed by any
casualty, or become damaged, worn or dilapidated or which may be affected by any
proceeding of the character referred to in Section 4.6 and shall complete and
pay for any structure at any time in the process of construction or repair on
the Land. Borrower shall not initiate, join in, acquiesce in, or consent to any
change in any private restrictive covenant, zoning law or other public or
private restriction, limiting or defining the uses which may be made of the
Property or any part thereof. If under applicable zoning provisions the use of
all or any portion of the Property is or shall become a nonconforming use,
Borrower will not cause or permit the nonconforming use to be discontinued or
the nonconforming Improvement to be abandoned without the express written
consent of Trustee/Collateral Agent.
Section 4.10 Waste. Borrower shall not commit or suffer any waste of
-----
the Property or make any change in the use of the Property which will in any way
materially increase the risk of fire or other hazard arising out of the
operation of the Property, or take any action that might invalidate or give
cause for cancellation of any Policy, or do or permit to be done thereon
anything that may in any way impair the value of the Property or the security of
this Security Instrument. Borrower will not, without the prior written consent
of Holders of a majority in the aggregate principal amount of the outstanding
Notes, permit any drilling or exploration for or extraction, removal, or
production of any minerals from the surface or the subsurface of the Land,
regardless of the depth thereof or the method of mining or extraction thereof.
Section 4.11 Compliance With Laws.
--------------------
(a) Borrower shall promptly comply with all existing and future federal,
state and local laws, orders, ordinances, governmental rules and regulations or
court orders affecting the Property, or the use thereof, including Environmental
Law (defined in Section 12.1) ("Applicable Laws").
(b) Borrower shall from time to time, upon Trustee/Collateral Agent's
request, provide Trustee/Collateral Agent with evidence reasonably satisfactory
to Trustee/Collateral Agent that the Property complies with all Applicable Laws
or is exempt from compliance with Applicable Laws.
18
(c) Notwithstanding any provisions set forth herein, Borrower shall not
alter the Property in any manner which would materially increase Borrower's
responsibilities for compliance with Applicable Laws unless Borrower delivers to
Trustee/Collateral Agent: (i) an Officer's Certificate (as defined in the
Indenture) that any such alterations comply with Applicable Laws and (ii) a
certificate of compliance with Applicable Laws from an independent architect,
engineer. The foregoing shall apply to tenant improvements constructed by
Borrower or by any of its tenants.
(d) Borrower shall give prompt notice to Trustee/Collateral Agent of the
receipt by Borrower of any notice related to a violation of any Applicable Laws
in connection with the Property and of the commencement of any proceedings or
investigations which relate to compliance with Applicable Laws.
(e) After prior written notice to Trustee/Collateral Agent, Borrower, at
its own expense, may contest by appropriate legal proceeding, promptly initiated
and conducted in good faith and with due diligence, the Applicable Laws
affecting the Property, provided that (i) no Event of Default has occurred and
is continuing under the Note, the Indenture, this Security Instrument or any of
the Other Security Documents; (ii) Borrower is permitted to do so under the
provisions of any other mortgage, deed of trust or deed to secure debt affecting
the Property; (iii) such proceeding shall be permitted under and be conducted in
accordance with the provisions of any other material document to which Borrower
or the Property is subject and shall not constitute a default thereunder; (iv)
neither the Property, any part thereof or interest therein, any of the tenants
or occupants thereof, nor Borrower shall be affected in any material adverse way
as a result of such proceeding; and (v) non-compliance with the Applicable Laws
shall not impose civil or criminal liability on Borrower or Trustee/Collateral
Agent.
Section 4.12 Books and Records.
-----------------
(a) Borrower and any Guarantors (defined in Subsection 10.1(e)) and
Indemnitor(s) (defined in Section 13.4), if any, shall keep adequate books and
records of account relating to the Property in accordance with generally
accepted accounting principles ("GAAP"), or in accordance with other methods
used by owners of similar property and buildings to the Property in nature, use,
location, and construction, consistently applied and furnished to
Trustee/Collateral Agent in accordance with the terms and provisions of the
Indenture.
(b) Intentionally omitted.
(c) Borrower, any Guarantor and any Indemnitor shall furnish
Trustee/Collateral Agent with such other additional financial or management
information (including State and Federal tax returns) as may, from time to time,
be reasonably required by Trustee/Collateral Agent in form and substance
reasonably satisfactory to Trustee/Collateral Agent.
(d) Trustee/Collateral Agent and its agents shall have the right at
reasonable times and upon reasonable notice to examine the books and records of
Borrower, any Guarantor and any Indemnitor relating to the operation of the
Property at the principal offices of Borrower or any office regularly maintained
by Borrower, any Guarantor or Indemnitor where the books and records are
located.
19
Section 4.13 Payment for Labor and Materials. Borrower will promptly
-------------------------------
pay when due (or bond over) all bills and costs for labor, materials, and
specifically fabricated materials incurred in connection with the Property and
shall in any event cause the prompt, full and unconditional discharge of any
lien or security interest, even though inferior to the liens and the security
interests hereof within thirty (30) days after receiving notice thereof, and in
any event keep the Property free from any other or additional lien or security
interest other than the liens or security interests hereof, except for the
Permitted Exceptions (defined below).
Section 4.14 Performance of Other Agreements. Borrower shall observe
-------------------------------
and perform each and every term to be observed or performed by Borrower pursuant
to the terms of any agreement or recorded instrument affecting or pertaining to
the Property, or given by Borrower to Trustee/Collateral Agent for the purpose
of further securing an Obligation and any amendments, modifications or changes
thereto.
Section 4.15 Change of Name, Identity or Structure. Except as may be
-------------------------------------
permitted under the Indenture or Article 8 hereof, Borrower will not change
Borrower's name, identity (including its trade name or names) or, if not an
individual, Borrower's corporate, partnership or other structure without
notifying the Trustee/Collateral Agent of such change in writing at least thirty
(30) days prior to the effective date of such change and, in the case of a
change in Borrower's structure, without complying with Article 8 of the
Indenture.
Section 4.16 Intentionally Omitted.
---------------------
Section 4.17 Management. The Property shall at all times be managed by
----------
either: (a) Borrower or an entity affiliated with Borrower for so long as
Borrower or said affiliated entity is managing the Property in a first class
manner; or (b) a professional property management company. Management by an
affiliated entity or a professional property management company shall be
pursuant to a written agreement that complies with Section 1017 of the
Indenture. Borrower must give Trustee/Collateral Agent prior written notice of
the removal or replacement of any manager or the terms of any modification to
the applicable management agreement. All Rents generated by or derived from the
Property shall first be utilized solely for current expenses directly
attributable to the ownership and operation of the Property, including, without
limitation, current expenses relating to Borrower's liabilities and obligations
with respect to the Note, the Indenture, this Security Instrument and the Other
Security Documents, and none of the Rents generated by or derived from the
Property shall be diverted by Borrower and utilized for any other purpose unless
all such current expenses attributable to the ownership and operation of the
Property have been fully paid and satisfied.
Section 4.18 Principal Place of Business. Borrower shall not change
---------------------------
the principal place of business or chief executive office set forth in Article V
below without the execution and delivery of additional financing statements,
security agreements and other instruments which may be necessary to effectively
evidence or perfect Trustee/Collateral Agent's security interest in the Property
as a result of such change of principal place of business.
20
ARTICLE V
SPECIAL COVENANTS
Borrower covenants and agrees that:
Section 5.1 Property Use.
------------
(a) The Property shall be used only as an office and/or a high technology
telecommunications hub and for no other use without the prior written consent of
Holders of a majority in aggregate principal amount of the outstanding Notes.
(b) Intentionally Omitted.
Section 5.2 Erisa.
-----
(a) Borrower shall not engage in any transaction which would cause any
obligation, or action taken or to be taken, hereunder (or the exercise by
Trustee/Collateral Agent of any of its rights under the Note, the Indenture,
this Security Instrument and the Other Security Documents) to be a non-exempt
(under a statutory or administrative class exemption) prohibited transaction
under the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
(b) Borrower further covenants and agrees to deliver to Trustee/Collateral
Agent, together with Issuer's annual Officer's Certificate certifying no
defaults under the Indenture, a certification that (i) Borrower is not an
"employee benefit plan" as defined in Section 3(3) of ERISA, which is subject to
Title I of ERISA, or a "governmental plan" within the meaning of Section 3(3) of
ERISA; (ii) Borrower is not subject to state statutes regulating investments and
fiduciary obligations with respect to governmental plans; and (iii) one or more
of the following circumstances is true:
(A) Equity interests in Borrower are publicly offered securities,
within the meaning of 29 C.F.R. (S) 2510.3-101 (b)(2);
(B) Less than 25 percent of each outstanding class of equity
interests in Borrower are held by "benefit plan investors" within the
meaning of 29 C.F.R. (S) 2510.3-101(f)(2); or
(C) Borrower qualifies as an "operating company" or a "real
estate operating company" within the meaning of 29 C.F.R. (S)
2510.3-101(c) or (e) or an investment company registered under The
Investment Company Act of 1940.
Section 5.3 Single Purpose Entity. Borrower is, and shall at all times
---------------------
be deemed a Single Purpose Entity. For purposes of this Security Instrument, the
term "Single Purpose Entity" shall mean a Person (other than an individual, a
government, or any agency or political subdivision thereof), which exists solely
for the purpose of owning the Project, conducts business only in its own name,
does not engage in any business or have any assets unrelated to the Project,
does not have any indebtedness other than as permitted by this Security
Instrument
21
or the Indenture, has its own separate books, records, and accounts (with no
commingling of assets), holds itself out as being a Person separate and apart
from any other Person, and observes corporate and partnership formalities
independent of any other entity, and which otherwise constitutes a single
purpose, bankruptcy remote entity.
Section 5.4 Representations and Warranties. Borrower represents and
------------------------------
warrants to Trustee/Collateral Agent that:
(a) Warranty of Title. Borrower has good title to the Property subject only
-----------------
to the Permitted Exceptions (defined below) and has the right to mortgage,
grant, bargain, sell, pledge, assign, warrant, transfer and convey the same and
that Borrower possesses an unencumbered fee simple absolute estate in the Land
and the Improvements and that it owns the Property free and clear of all liens,
encumbrances and charges whatsoever except for (i) those exceptions shown in
that certain owners policy of title insurance issued by Fidelity National Title
Insurance Company of New York, Policy Number 26-031-92-56629, dated September
14, 2000 (a true and correct copy of which has been provided to the Holder's)
insuring Borrower's right, title and interest in the Property and (ii) those
certain rights of Chevron TCI, Inc. in and to certain fixtures as the same are
set forth pursuant to that certain Operating Agreement, dated as of June 11,
2001, of 415 Greenwich GC Tenant LLC (the "Permitted Exceptions"). Borrower
shall forever warrant, defend and preserve the title and the validity and
priority of the lien of this Security Instrument and shall forever warrant and
defend the same to Trustee/Collateral Agent against the claims of all persons
whomsoever other than the Permitted Exceptions.
(b) Legal Status and Authority. Borrower (a) is duly organized, validly
--------------------------
existing and in good standing under the laws of its state of organization or
incorporation; (b) is duly qualified to transact business and is in good
standing in the state where the Property is located; and (c) has all necessary
approvals, governmental and otherwise, and full power and authority to own,
operate and lease the Property. Borrower (and the undersigned representative of
Borrower, if any) has full power, authority and legal right to execute this
Security Instrument, and to mortgage, grant, bargain, sell, pledge, assign,
warrant, transfer and convey the Property pursuant to the terms hereof and to
keep and observe all of the terms of this Security Instrument on Borrower's part
to be performed.
(c) Validity of Documents. The execution, delivery and performance of the
---------------------
Note, the Indenture, this Security Instrument and the Other Security Documents
and the borrowing evidenced by the Note (i) are within the power and authority
of Borrower; (ii) have been authorized by all requisite organizational action;
(iii) have received all necessary approvals and consents, corporate,
governmental or otherwise; (iv) will not violate, conflict with, result in a
breach of or constitute (with notice or lapse of time, or both) a material
default under any provision of law, any order or judgment of any court or
governmental authority, the articles of incorporation, by-laws, partnership or
trust agreement, articles of organization, operating agreement or other
governing instrument of Borrower, or any indenture, agreement or other
instrument to which Borrower is a party or by which it or any of its assets or
the Property is or may be bound or affected; (v) will not result in the creation
or imposition of any lien, charge or encumbrance whatsoever upon any of its
assets, except the lien and security interest created hereby or by any Permitted
Senior Secured Debt (as defined in the Indenture); and (vi) will not require any
authorization or license from, or any filing with, any governmental or other
body
22
(except for the recordation of this Security Instrument in appropriate and
records in the State where the Property is located and except for Uniform
Commercial Code filings relating to the security interest created hereby), and
to the best of Borrower's knowledge, the Note, the Indenture, this Security
Instrument and the Other Security Documents constitute the legal, valid and
binding obligations of Borrower.
(d) Litigation. There is no action, suit or proceeding, judicial,
----------
administrative or otherwise (including any condemnation or similar proceeding),
pending or, to the best of Borrower's knowledge, threatened or contemplated
against Borrower, a Guarantor, if any, an Indemnitor, if any, or against or
affecting the Property that has not been disclosed to Trustee/Collateral Agent
by Borrower in writing and as determined by Trustee/Collateral Agent in its sole
and absolute discretion (a) has a material, adverse affect on the Property or
Borrower's, any Guarantor's or any Indemnitor's ability to perform its
obligations under the Note, the Indenture, this Security Instrument or the Other
Security Documents, or (b) is not adequately covered by insurance.
(e) Status of Property.
------------------
(i) Borrower has obtained all material certificates, licenses and
other approvals, governmental and otherwise required of Borrower, necessary for
the operation of the Property and the conduct of its business and all material
zoning, building code, land use, environmental and other similar permits or
approvals, all of which are in full force and effect as of the date hereof.
(ii) The Property and the present and contemplated use and occupancy
thereof are in compliance in all material respects with all material zoning
ordinances, building codes, land use laws, Environmental Laws and other similar
laws applicable to the Property and/or Borrower.
(iii) The Property is served by all utilities required for the current
or contemplated use thereof. All utility service is provided by public utilities
and the Property has accepted or is equipped to accept such utility service.
(iv) All public roads and streets necessary for service of and access
to the Property for the current or contemplated use thereof have been completed,
are serviceable and all-weather and are physically and legally open for use by
the public.
(v) The Property is served by public water and sewer systems.
(vi) The Property is free from damage caused by fire or other
casualty.
(vii) Except as set forth on Schedule 5.1(e), all costs and expenses
---------------
of any and all labor, materials, supplies and equipment used in the construction
of the Improvements have been paid in full.
(viii) Except as set forth on Schedule 5.1(e), Borrower has paid in
---------------
full for, and is the owner of, all furnishings, fixtures and equipment (other
than tenants'
23
property) used in connection with the operation of the Property, free and clear
of any and all security interests, liens or encumbrances, except the lien and
security interest created hereby.
(ix) No portion of the Improvements is located in an area identified
by the Federal Emergency Management Agency or any successor thereto as an area
having special flood hazards pursuant to the Flood Insurance Acts or, if any
portion of the Improvements is located within such area, Borrower has obtained
and will maintain the insurance prescribed in Section 4.3(a).
(x) All the Improvements lie within the boundaries of the Land.
(f) No Foreign Person. Borrower is not a "foreign person" within the
-----------------
meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended
and the related Treasury Department regulations.
(g) Separate Tax Lot. The Property is assessed for real estate tax purposes
----------------
as one or more wholly independent tax lot or lots, separate from any adjoining
land or improvements not constituting a part of such lot or lots, and no other
land or improvements is assessed and taxed together with the Property or any
portion thereof, except as disclosed to Trustee/Collateral Agent on Schedule
5.4(g) annexed hereto and made a part hereof.
(h) Leases. There are no Leases in effect for the Property except for (i)
------
that certain lease dated June 11, 2001 by and between Borrower, as landlord, and
415 Greenwich GC Tenant, LLC, as tenant, (ii) that certain Sublease dated June
11, 2001 by and between 415 Greenwich GC Tenant, LLC, as sublandlord and Globix
Corporation, as subtenant and (iii) that certain Collocation Exhibit (which is
attached as Exhibit B to that certain Master Services Agreement dated as of
September 6, 2001 by and between Globix Corporation and Telefonica Data USA,
Inc.
(i) Intentionally Omitted.
---------------------
(j) Business Purposes. The Debt and Other Obligations evidenced by the Note
-----------------
and the Indenture secured by the Security Instrument and the Other Security
Documents are solely for the business purpose of Borrower, and not for personal,
family, household or agricultural purposes.
(k) Taxes. Borrower, any Guarantor and any Indemnitor have filed all
-----
federal, state, county, municipal, and city income, personal property and other
tax returns required to have been filed by them and have paid all taxes and
related liabilities which have become due pursuant to such returns or pursuant
to any assessments received by them. Neither Borrower, any Guarantor nor any
Indemnitor knows of any basis for any additional assessment in respect of any
such taxes and related liabilities for prior years.
(l) Mailing Address. Borrower's mailing address, as set forth in the
---------------
Securities Register (as defined in the Indenture) is true and correct.
24
(m) No Change in Facts or Circumstances. All information submitted to
-----------------------------------
Trustee/Collateral Agent and in all financial statements, rent rolls, reports,
certificates and other documents submitted in connection with the application or
in satisfaction of the terms thereof, are accurate, complete and correct in all
respects. There has been no adverse change in any condition, fact, circumstance
or event that would make any such information inaccurate, incomplete or
otherwise misleading.
(n) Disclosure. Borrower has disclosed to the Holders all material facts
----------
and has not failed to disclose any material fact that could cause any
representation or warranty made herein to be materially misleading.
(o) Illegal Activity. No portion of the Property has been or will be
----------------
purchased, improved, equipped or furnished with proceeds of any illegal activity
and to the best of Borrower's knowledge, there are no illegal activities or
activities relating to controlled substances at the Property.
(p) Permitted Exceptions. None of the Permitted Exceptions, individually or
--------------------
in the aggregate, materially interfere with the benefits of the security
intended to be provided by this Security Instrument, the Note, the Indenture,
and the Other Security Documents, materially and adversely affect the value of
the Property, impair the use or the operation of the Property or impair
Borrower's ability to pay its obligations in a timely manner.
(q) Principal Place of Business. Borrower's principal place of business is
---------------------------
c/o Globix Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as of the
date hereof.
(r) Erisa.
-----
(i) As of the date hereof and throughout the term of this Security
Instrument, (i) Borrower is not and will not be an "employee benefit plan" as
defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, and (ii)
the assets of Borrower do not and will not constitute "plan assets" of one or
more such plans for purposes of Title I of ERISA; and
(ii) As of the date hereof and throughout the term of this Security
Instrument (i) Borrower is not and will not be a "governmental plan" within the
meaning of Section 3(32) of ERISA and (ii) transactions by or with Borrower are
not and will not be subject to state statutes applicable to Borrower regulating
investments of and fiduciary obligations with respect to governmental plans.
(s) Exact Name and I.D. Number. The exact legal name of Borrower as such
--------------------------
name appears on its Certificate of Formation is as set forth in the preamble
hereto, the taxpayer identification number issued by the Internal Revenue
Service for it is ▇▇-▇▇▇▇▇▇▇. Borrower does not have an organizational
identification number.
25
ARTICLE VI
OBLIGATIONS AND RELIANCE
Section 6.1 Relationship of Borrower and Trustee/Collateral Agent. The
-----------------------------------------------------
relationship between Borrower and Trustee/Collateral Agent is solely that of
debtor and creditor, and Trustee/Collateral Agent has no fiduciary or other
special relationship with Borrower, and no term or condition of any of the Note,
the Indenture, this Security Instrument and the Other Security Documents shall
be construed so as to deem the relationship between Borrower and
Trustee/Collateral Agent to be other than that of debtor and creditor.
Section 6.2 No Reliance on Trustee/Collateral Agent. The members,
---------------------------------------
general partners, principals and (if Borrower is a trust) beneficial owners of
Borrower are experienced in the ownership and operation of properties similar to
the Property, and Borrower and Trustee/Collateral Agent are relying solely upon
such expertise in connection with the ownership and operation of the Property.
Borrower is not relying on Trustee/Collateral Agent's expertise, business acumen
or advice in connection with the Property.
Section 6.3 No Lender Obligations. Trustee/Collateral Agent is not
---------------------
undertaking the performance of (i) any obligations under the Leases, if any; or
(ii) any obligations with respect to such agreements, contracts, certificates,
instruments, franchises, permits, trademarks, licenses and other documents. By
accepting or approving anything required to be observed, performed or fulfilled
or to be given to Trustee/Collateral Agent pursuant to this Security Instrument,
the Note, the Indenture or the Other Security Documents, including without
limitation, any officer's certificate, balance sheet, statement of profit and
loss or other financial statement, survey, appraisal, or insurance policy,
Trustee/Collateral Agent shall not be deemed to have warranted, consented to, or
affirmed the sufficiency, the legality or effectiveness of same, and such
acceptance or approval thereof shall not constitute any warranty or affirmation
with respect thereto by Trustee/Collateral Agent.
Section 6.4 Reliance. Borrower recognizes and acknowledges that in
--------
accepting the Note, the Indenture, this Security Instrument and the Other
Security Documents, Trustee/Collateral Agent and the Holders are expressly and
primarily relying on the truth and accuracy of the warranties and
representations set forth in Article 5 and Article 12 without any obligation to
investigate the Property and notwithstanding any investigation of the Property
by Trustee/Collateral Agent or the Holders; that such reliance existed on the
part of Trustee/Collateral Agent and the Holders prior to the date hereof; that
the warranties and representations are a material inducement to
Trustee/Collateral Agent and the Holders in accepting the Note, the Indenture,
this Security Instrument and the Other Security Documents; and that
Trustee/Collateral Agent and the Holders would not be willing to accept the
Notes and accept this Security Instrument in the absence of the warranties and
representations as set forth in Article 5 and Article 12.
26
ARTICLE VII
FURTHER ASSURANCES
Section 7.1 Recording of Security Instrument, Etc. Subject to the
-------------------------------------
terms of that certain escrow letter dated of even date herewith from
Trustee/Collateral Agent and consented and agreed to by Borrower and Globix
Corporation, Borrower forthwith upon the execution and delivery of this Security
Instrument and thereafter authorizes Trustee/Collateral Agent to cause this
Security Instrument and any of the Other Security Documents creating a lien or
security interest or evidencing the lien hereof upon the Property and each
instrument of further assurance to be filed, registered or recorded in such
manner and in such places as may be required by any present or future law in
order to publish notice of and fully to protect and perfect the lien or security
interest hereof upon, and the interest of Trustee/Collateral Agent in, the
Property. Borrower will pay all taxes, filing, registration or recording fees,
and all expenses incident to the preparation, execution, acknowledgment and/or
recording of the Note, the Indenture, this Security Instrument, the Other
Security Documents, any note or mortgage supplemental hereto, any security
instrument with respect to the Property and any instrument of further assurance,
and any modification or amendment of the foregoing documents, and all federal,
state, county and municipal taxes, duties, imposts, assessments and charges
arising out of or in connection with the execution and delivery of this Security
Instrument, any mortgage supplemental hereto, any security instrument with
respect to the Property or any instrument of further assurance, and any
modification or amendment of the foregoing documents, except where prohibited by
law so to do.
Section 7.2 Further Acts, Etc. Borrower will, at the cost of Borrower,
-----------------
and without expense to Trustee/Collateral Agent, do, execute, acknowledge and
deliver all and every such further acts, deeds, conveyances, mortgages,
assignments, notices of assignments, transfers and assurances as
Trustee/Collateral Agent shall, from time to time, reasonably require, for the
better assuring, conveying, assigning, transferring, and confirming unto
Trustee/Collateral Agent the Property and rights hereby mortgaged, granted,
bargained, sold, conveyed, confirmed, pledged, assigned, warranted and
transferred or intended now or hereafter so to be, or which Borrower may be or
may hereafter become bound to convey or assign to Trustee/Collateral Agent, or
for carrying out the intention or facilitating the performance of the terms of
this Security Instrument or for filing, registering or recording this Security
Instrument, or for complying with all applicable state or federal law. Borrower,
on demand, will execute and deliver and hereby authorizes Trustee/Collateral
Agent, following 20 days' notice to Borrower, to execute in the name of Borrower
or without the signature of Borrower to the extent Trustee/Collateral Agent may
lawfully do so, one or more financing statements, chattel mortgages or other
instruments, to evidence or perfect more effectively the security interest of
Trustee/Collateral Agent in the Property. Borrower grants to Trustee/Collateral
Agent an irrevocable power of attorney coupled with an interest for the purpose
of exercising and perfecting any and all rights and remedies available to
Trustee/Collateral Agent pursuant to this Section 7.2.
27
Section 7.3 Changes in Tax, Debt Credit and Documentary Stamp Laws.
------------------------------------------------------
(a) If any law is enacted or adopted or amended after the date of this
Security Instrument which deducts the Debt from the value of the Property for
the purpose of taxation or which imposes a tax, either directly or indirectly,
on the Debt or Trustee/Collateral Agent's interest in the Property, Borrower
will pay the tax, with interest and penalties thereon, if any. If
Trustee/Collateral Agent is advised by counsel chosen by it that the payment of
tax by Borrower would be unlawful or taxable to Trustee/Collateral Agent or
unenforceable or provide the basis for a defense of usury, then Borrower shall
pay to Trustee/Collateral Agent such amounts to satisfy the payment of such
taxes actually paid by Trustee/Collateral Agent.
(b) Borrower will not claim or demand or be entitled to any credit or
credits on account of the Debt for any part of the Taxes or Other Charges
assessed against the Property, or any part thereof, and no deduction shall
otherwise be made or claimed from the assessed value of the Property, or any
part thereof, for real estate tax purposes by reason of this Security Instrument
or the Debt.
(c) If at any time the United States of America, any State thereof or any
subdivision of any such State shall require revenue or other stamps to be
affixed to the Note, the Indenture, this Security Instrument, or any of the
Other Security Documents or impose any other tax or charge on the same, Borrower
will pay for the same, with interest and penalties thereon, if any.
Section 7.4 Estoppel Certificates; Non-Disturbance Agreements.
-------------------------------------------------
(a) After request by Trustee/Collateral Agent, Borrower, within twenty (20)
days, shall furnish Trustee/Collateral Agent or any proposed assignee with a
statement, duly acknowledged and certified, setting forth (i) the original
principal amount of the Note or the Indenture, (ii) the unpaid aggregate
principal amount of the Notes, (iii) the rate of interest of the Notes, (iv) the
terms of payment and maturity date of the Notes, (v) the date installments of
interest and/or principal were last paid, (vi) that, except as provided in such
statement, there are no defaults or events which with the passage of time or the
giving of notice or both, would constitute an event of default under the Note,
the Indenture or this Security Instrument, (vii) that the Note, the Indenture
and this Security Instrument are valid, legal and binding obligations and have
not been modified or if modified, giving particulars of such modification,
(viii) whether any offsets or defenses exist against the obligations secured
hereby and, if any are alleged to exist, a detailed description thereof, (ix)
that all Leases are in full force and effect and (provided the Property is not a
residential multifamily property) have not been modified (or if modified,
setting forth all modifications), (x) the date to which the Rents thereunder
have been paid pursuant to the Leases, (xi) whether or not, to the best
knowledge of Borrower, any of the lessees under the Leases are in default under
the Leases, and, if any of the lessees are in default, setting forth the
specific nature of all such defaults, (xii) the amount of security deposits held
by Borrower under each Lease and that such amounts are consistent with the
amounts required under each Lease, and (xiii) as to any other matters reasonably
requested by Trustee/Collateral Agent and reasonably related to the Leases, the
obligations secured hereby, the Property or this Security Instrument.
28
(b) Borrower shall use reasonable efforts to deliver to Trustee/Collateral
Agent, promptly upon request, duly executed estoppel certificates from any one
or more lessees as required by Trustee/Collateral Agent attesting to such facts
regarding the Lease as Trustee/Collateral Agent may reasonably require,
including, but not limited to attestations that each Lease covered thereby is in
full force and effect with no defaults thereunder on the part of any party, that
none of the Rents have been paid more than one month in advance, except as
security, and that the lessee claims no defense or offset against the full and
timely performance of its obligations under the Lease.
(c) In the event Borrower has entered into a future lease and delivered to
Trustee/Collateral Agent the Officer's Certificate required by Section 4.8
hereof and provided such lease is for (i) at least one full floor of the
Property, (ii) on terms commensurate with market conditions at the time of the
making of such lease, and (iii) a term greater than or equal to seven (7) years,
after request by Borrower, Trustee/Collateral Agent, within twenty (20) days,
shall furnish such tenant with a non-disturbance agreement, duly acknowledged,
in substantially the form of non-disturbance agreement attached hereto as
Exhibit B.
Section 7.5 Flood Insurance. After Trustee/Collateral Agent's request,
---------------
Borrower shall deliver evidence satisfactory to Trustee/Collateral Agent that no
portion of the Improvements is situated in a federally designated "special flood
hazard area" or, if it is, that Borrower has obtained insurance satisfactory to
Trustee/Collateral Agent.
Section 7.6 Replacement Documents. Upon receipt of an affidavit of an
---------------------
officer of Trustee/Collateral Agent as to the loss, theft, destruction or
mutilation of any Security Document which is not of public record, and, in the
case of any such mutilation, upon surrender and cancellation of such Security
Document, Borrower will issue, in lieu thereof, a replacement Security Document,
dated the date of such lost, stolen, destroyed or mutilated Security Document in
the same principal amount thereof and otherwise of like tenor.
ARTICLE VIII
DUE ON SALE/ENCUMBRANCE
Section 8.1 No Sale/Encumbrance. Except pursuant to the Pledge
-------------------
Agreements:
(a) Borrower shall not sell, convey, mortgage, grant, bargain, encumber,
pledge, assign, grant options with respect to, or otherwise transfer or dispose
of (directly or indirectly, voluntarily or involuntarily, by operation of law or
otherwise, and whether or not for consideration or of record) the Property or
any part thereof or any legal or beneficial interest therein (collectively a
"Transfer"), other than pursuant to Leases of space in the Improvements to
tenants in accordance with the provisions of Section 4.8, without the prior
written consent of Holders of a majority in the aggregate principal amount of
the outstanding Notes.
(b) A Transfer shall include, but not be limited to, (A) an installment
sales agreement wherein Borrower agrees to sell the Property or any part thereof
for a price to be paid in installments; (B) an agreement by Borrower leasing all
or a substantial part of the Property for
29
other than actual occupancy by a space tenant thereunder or a sale, assignment
or other transfer of, or the grant of a security interest in, Borrower's right,
title and interest in and to any Leases or any Rents.
(c) Notwithstanding the above provisions of this Section 8.1, Borrower may,
without the consent of Trustee/Collateral Agent, (i) make transfers of
immaterial portions of the Property to Governmental Authorities for dedication
or public use, and (ii) grant easements, restrictions, covenants, reservations
and rights of way in the ordinary course of business for access, water and sewer
lines, telephone and telegraph lines, electric lines or other utilities or for
other similar purposes, provided that no such transfer, conveyance or
encumbrance set forth in the foregoing clauses (i) and (ii) shall materially
impair the utility and operation of the Property or have a material adverse
affect on the value of the Property taken as a whole.
ARTICLE IX
PREPAYMENT
Section 9.1 Prepayment Before Event of Default. The Debt may not be
----------------------------------
prepaid in whole or in part except in strict accordance with the express terms
and conditions of the Note or the Indenture.
Section 9.2 Intentionally Omitted.
---------------------
Section 9.3 Prepayment After Event of Default. If a Default Prepayment
---------------------------------
(defined below) occurs, Borrower shall pay to Trustee/Collateral Agent the
entire Debt, including without limitation, all other amounts due under the
Indenture. For purposes of this Section 9.3, the term "Default Prepayment" shall
mean a prepayment of the principal amount of and accrued interest on the Note
and any other amounts due under the Indenture made after the occurrence of any
Event of Default and an acceleration of the maturity of the Note or an
acceleration of the Maturity Date under any circumstances, including, without
limitation, a prepayment occurring in connection with reinstatement of this
Security Instrument provided by statute under foreclosure proceedings or
exercise of a power of sale, any statutory right of redemption exercised by
Borrower or any other party having a statutory right to redeem or prevent
foreclosure, any sale in foreclosure or under exercise of a power of sale or
otherwise.
ARTICLE X
DEFAULT
Section 10.1 Events of Default. The occurrence of an Event of Default
-----------------
under the Note, the Indenture or any of the other Security Documents shall
constitute an "Event of Default" hereunder.
30
ARTICLE XI
RIGHTS AND REMEDIES
Section 11.1 Remedies. Upon the occurrence of any Event of Default,
--------
Borrower agrees that Trustee/Collateral Agent may take such action, without
notice or demand, as it deems advisable to protect and enforce its rights
against Borrower in and to the Property, including, but not limited to the
following actions, each of which may be pursued concurrently or otherwise, at
such time and in such order as Trustee/Collateral Agent may determine, in its
sole discretion, without impairing or otherwise affecting the other rights and
remedies of Trustee/Collateral Agent:
(a) Pursue all remedies available to Trustee/Collateral Agent pursuant to
the terms of the Indenture;
(b) institute proceedings, judicial or otherwise, for the complete
foreclosure of this Security Instrument under any applicable state or federal
law in which case the Property or any interest therein may be sold for cash or
upon credit in one or more parcels or in several interests or portions and in
any order or manner;
(c) with or without entry, to the extent permitted and pursuant to the
procedures provided by applicable state or federal law, institute proceedings
for the partial foreclosure of this Security Instrument for the portion of the
Debt then due and payable, subject to the continuing lien and security interest
of this Security Instrument for the balance of the Debt not then due, unimpaired
and without loss of priority;
(d) sell for cash or upon credit the Property or any part thereof and all
estate, claim, demand, right, title and interest of Borrower therein and rights
of redemption thereof, pursuant to power of sale or otherwise, at one or more
sales, in one or more parcels, at such time and place, upon such terms and after
such notice thereof as may be required or permitted by law;
(e) apply for the appointment of a receiver, trustee, liquidator or
conservator of the Property, without notice and without regard for the adequacy
of the security for the Debt and without regard for the solvency of Borrower,
any Guarantor, Indemnitor or of any person, firm or other entity liable for the
payment of the Debt;
(f) subject to any applicable state or federal law, the license granted to
Borrower under Section 1.2 shall automatically be revoked and Trustee/Collateral
Agent may enter into or upon the Property, either personally or by its agents,
nominees or attorneys and dispossess Borrower and its agents and servants
therefrom, without liability for trespass, damages or otherwise and exclude
Borrower and its agents or servants wholly therefrom, and take possession of all
rent rolls, leases (including the form lease) and amendments and exhibits,
subleases (including the form sublease) and amendments and exhibits and rental
and license agreements with the tenants, subtenants and licensees in possession
of the Property or any part or parts thereof, tenants', subtenants' and
licensees' money deposits or other property (including, without limitation, any
letter of credit) given to secure tenants', subtenants' and licensees'
obligations under leases, subleases or licenses, together with a list of the
foregoing; all lists pertaining to
31
current rent and license fee arrears; any and all architects' plans and
specifications, licenses and permits, documents, books, records, accounts,
surveys and property which relate to the management, leasing, operation,
occupancy, ownership, insurance, maintenance, or service of or construction upon
the Property and Borrower agrees to surrender possession thereof and of the
Property to Trustee/Collateral Agent upon demand, and thereupon
Trustee/Collateral Agent may (i) use, operate, manage, control, insure,
maintain, repair, restore and otherwise deal with all and every part of the
Property and conduct the business thereat; (ii) complete any construction on the
Property in such manner and form as Trustee/Collateral Agent deems advisable;
(iii) make alterations, additions, renewals, replacements and improvements to or
on the Property; (iv) exercise all rights and powers of Borrower with respect to
the Property, whether in the name of Borrower or otherwise, including without
limitation, the right to make, cancel, enforce or modify Leases, obtain and
evict tenants, and demand, ▇▇▇ for, collect and receive all Rents of the
Property and every part thereof; (v) either require Borrower (A) to pay monthly
in advance to Trustee/Collateral Agent, or any receiver appointed to collect the
Rents, the fair and reasonable rental value for the use and occupation of such
part of the Property as may be occupied by Borrower, or (B) to vacate and
surrender possession of the Property to Trustee/Collateral Agent or to such
receiver and, in default thereof, Borrower may be evicted by summary proceedings
or otherwise; and (vi) apply the receipts from the Property to the payment of
the Debt, in such order, priority and proportions as Trustee/Collateral Agent
shall deem appropriate in its sole discretion after deducting therefrom all
expenses (including reasonable attorneys' fees) incurred in connection with the
aforesaid operations and all amounts necessary to pay the Taxes, Other Charges,
Insurance Premiums and other expenses in connection with the Property, as well
as just and reasonable compensation for the services of Trustee/Collateral
Agent, its counsel, agents and employees;
(g) exercise any and all rights and remedies granted to a secured party
upon default under the Uniform Commercial Code, including, without limiting the
generality of the foregoing: (i) the right to take possession of the Personal
Property or any part thereof, and to take such other measures as
Trustee/Collateral Agent may deem necessary for the care, protection and
preservation of the Personal Property, and (ii) request Borrower at its expense
to assemble the Personal Property and make it available to Trustee/Collateral
Agent at a convenient place acceptable to Trustee/Collateral Agent. Any notice
of sale, disposition or other intended action by Trustee/Collateral Agent with
respect to the Personal Property sent to Borrower in accordance with the
provisions hereof at least ten (10) days prior to such action, shall constitute
commercially reasonable notice to Borrower;
(h) apply any sums then deposited in the Escrow Fund and any other sums
held in escrow or otherwise by Trustee/Collateral Agent in accordance with the
terms of this Security Instrument or any Other Security Document to the payment
of the following items in any order in its sole discretion: (i) Taxes and Other
Charges; (ii) Insurance Premiums; (iii) interest on the unpaid principal balance
of the Note or the Indenture; (iv) amortization of the unpaid principal balance
of the Note or the Indenture; and (v) all other sums payable pursuant to the
Note, the Indenture, this Security Instrument and the Other Security Documents,
including, without limitation, advances made by Trustee/Collateral Agent
pursuant to the terms of this Security Instrument;
32
(i) surrender the Policies maintained pursuant to Article 3, collect the
unearned Insurance Premiums and apply such sums as a credit on the Debt in such
priority and proportion as Trustee/Collateral Agent in its discretion shall deem
proper, and in connection therewith, Borrower hereby appoints Trustee/Collateral
Agent as agent and attorney-in-fact (which is coupled with an interest and is
therefore irrevocable) for Borrower to collect such unearned Insurance Premiums;
In the event of a sale, by foreclosure, power of sale, or otherwise, of less
than all of the Property, this Security Instrument shall continue as a lien and
security interest on the remaining portion of the Property unimpaired and
without loss of priority.
Section 11.2 Application of Proceeds. The purchase money, proceeds and
-----------------------
avails of any disposition of the Property, or any part thereof, or any other
sums collected by Trustee/Collateral Agent pursuant to the Note, the Indenture,
this Security Instrument or the Other Security Documents, shall be applied by
Trustee/Collateral Agent pursuant to Section 506 of the Indenture.
Section 11.3 Right to Cure Defaults. Upon the occurrence of any Event
----------------------
of Default or if Borrower fails to make any payment or to do any act as herein
provided beyond all applicable cure periods, Trustee/Collateral Agent may, but
without any obligation to do so and without notice to or demand on Borrower and
without releasing Borrower from any obligation hereunder, make or do the same in
such manner and to such extent as Trustee/Collateral Agent may deem necessary to
protect the security hereof. Trustee/Collateral Agent is authorized to enter
upon the Property for such purposes, or appear in, defend, or bring any action
or proceeding to protect its interest in the Property or to foreclose this
Security Instrument or collect the Debt. The cost and expense of any cure
hereunder (including reasonable attorneys' fees to the extent permitted by law),
with interest as provided in this Section 11.3, shall constitute a portion of
the Debt and shall be due and payable to Trustee/Collateral Agent upon demand.
All such costs and expenses incurred by Trustee/Collateral Agent in remedying
such Event of Default or such failed payment or act or in appearing in,
defending, or bringing any such action or proceeding shall bear interest at the
rate of 11% per annum, for the period after notice from Trustee/Collateral Agent
that such cost or expense was incurred to the date of payment to
Trustee/Collateral Agent. All such costs and expenses incurred by
Trustee/Collateral Agent together with interest thereon calculated at the
Default Rate shall be deemed to constitute a portion of the Debt and be secured
by this Security Instrument and the Other Security Documents and shall be
immediately due and payable upon demand by Trustee/Collateral Agent therefor.
Section 11.4 Actions and Proceedings. Upon the occurrence of an Event
-----------------------
of Default, Trustee/Collateral Agent has the right to appear in and defend any
action or proceeding brought with respect to the Property and to bring any
action or proceeding, in the name and on behalf of Borrower, which
Trustee/Collateral Agent, in its discretion, decides should be brought to
protect its interest in the Property.
Section 11.5 Recovery of Sums Required to be Paid. Trustee/Collateral
------------------------------------
Agent shall have the right from time to time to take action to recover any sum
or sums which constitute a part of the Debt as the same become due, without
regard to whether or not the
33
balance of the Debt shall be due, and without prejudice to the right of
Trustee/Collateral Agent thereafter to bring an action of foreclosure, or any
other action, for a default or defaults by Borrower existing at the time such
earlier action was commenced.
Section 11.6 Examination of Books and Records. Trustee/Collateral
--------------------------------
Agent, its agents, accountants and attorneys shall have the right upon prior
written notice to Borrower (unless an Event of Default exists, in which case no
notice shall be required), to examine and audit, during reasonable business
hours, the records, books, management and other papers of Borrower and its
affiliates or of any Guarantor or Indemnitor which pertain to their financial
condition or the income, expenses and operation of the Property, at the Property
or at any office regularly maintained by Borrower, its affiliates or any
Guarantor or Indemnitor where the books and records are located.
Trustee/Collateral Agent and its agents shall have the right upon reasonable
notice to make copies and extracts from the foregoing records and other papers.
Section 11.7 Other Rights, Etc.
-----------------
(a) The failure of Trustee/Collateral Agent to insist upon strict
performance of any term hereof shall not be deemed to be a waiver of any term of
this Security Instrument. Borrower shall not be relieved of Borrower's
obligations hereunder by reason of (i) the failure of Trustee/Collateral Agent
to comply with any request of Borrower, any Guarantor or any Indemnitor to take
any action to foreclose this Security Instrument or otherwise enforce any of the
provisions hereof or of the Note, the Indenture or the Other Security Documents,
(ii) the release, regardless of consideration, of the whole or any part of the
Property, or of any person liable for the Debt or any portion thereof, or (iii)
any agreement or stipulation by Trustee/Collateral Agent extending the time of
payment, changing the rate of interest, or otherwise modifying or supplementing
the terms of the Note, the Indenture, this Security Instrument or the Other
Security Documents.
(b) Unless Trustee/Collateral Agent has foreclosed upon its interest in the
Property or obtained possession by a deed-in-lieu of foreclosure, it is agreed
that the risk of loss or damage to the Property is on Borrower, and
Trustee/Collateral Agent shall have no liability whatsoever for decline in value
of the Property, for failure to maintain the policies, or for failure to
determine whether insurance in force is adequate as to the amount of risks
insured. Possession by Trustee/Collateral Agent shall not be deemed an election
of judicial relief, if any such possession is requested or obtained, with
respect to any Property or collateral not in Trustee/Collateral Agent's
possession.
(c) Trustee/Collateral Agent may resort for the payment of the Debt to any
other security held by Trustee/Collateral Agent in such order and manner as
Trustee/Collateral Agent, in its discretion, may elect. Trustee/Collateral Agent
may take action to recover the Debt, or any portion thereof, or to enforce any
covenant hereof without prejudice to the right of Trustee/Collateral Agent
thereafter to foreclose this Security Instrument. The rights of
Trustee/Collateral Agent under this Security Instrument shall be separate,
distinct and cumulative and none shall be given effect to the exclusion of the
others. No act of Trustee/Collateral Agent shall be construed as an election to
proceed under any one provision herein to the exclusion of any other provision.
Trustee/Collateral Agent shall not be limited exclusively to the rights and
34
remedies herein stated but shall be entitled to every right and remedy now or
hereafter afforded at law or in equity.
Section 11.8 Right to Release Any Portion of the Property.
--------------------------------------------
Trustee/Collateral Agent may release any portion of the Property from the lien
of this Security Instrument for such consideration as Trustee/Collateral Agent
may require without, as to the remainder of the Property, in any way impairing
or affecting the lien or priority of this Security Instrument, or improving the
position of any subordinate lienholder with respect thereto, except to the
extent that the obligations hereunder shall have been reduced by the actual
monetary consideration, if any, received by Trustee/Collateral Agent for such
release, and may accept by assignment, pledge or otherwise any other property in
place thereof as Trustee/Collateral Agent may require without being accountable
for so doing to any other lienholder. This Security Instrument shall continue as
a lien and security interest in the remaining portion of the Property.
Section 11.9 Violation of Laws. If the Property is not in compliance
-----------------
with Applicable Laws, Trustee/Collateral Agent may impose additional
requirements upon Borrower in connection therewith including, without
limitation, monetary reserves or financial equivalents reasonably related to
such non-compliance.
Section 11.10 Right of Entry. Subject to the rights of any tenants,
--------------
Trustee/Collateral Agent and its agents shall have the right to enter and
inspect the Property at all reasonable times upon reasonable notice to Borrower.
Section 11.11 Subrogation. If any or all of the proceeds of the Note
-----------
or the Indenture have been used to extinguish, extend or renew any indebtedness
heretofore existing against the Property, then, to the extent of the funds so
used, Trustee/Collateral Agent shall be subrogated to all of the rights, claims,
liens, titles and interests existing against the Property heretofore held by, or
in favor of, the holder of such indebtedness and such former rights, claims,
liens, titles and interests, if any, are not waived but rather are continued in
full force and effect in favor of Trustee/Collateral Agent and are merged with
the lien and security interest created herein as cumulative security for the
repayment of the Debt, the performance and discharge of Borrower's obligations
hereunder, under the Note, the Indenture and the Other Security Documents and
the performance and discharge of the Other Obligations.
ARTICLE XII
ENVIRONMENTAL HAZARDS
Section 12.1 Environmental Definitions. For the purpose of this
-------------------------
Section, "Environmental Law" means any present and future federal, state and
local laws, statutes, ordinances, rules, regulations, standards, policies and
other government directives or requirements, as well as common law, including
but not limited to the Comprehensive Environmental Response, Compensation and
Liability Act and the Resource Conservation and Recovery Act, that apply to
Borrower or the Property and relate to Hazardous Materials. "Environmental
Liens" means all liens and other encumbrances imposed pursuant to any
Environmental Law, whether due to any act or omission of Borrower or any other
person or entity. "Environmental Report" means the written reports resulting
from the environmental site
35
assessments of the Property delivered to Trustee/Collateral Agent. "Hazardous
Materials" shall mean petroleum and petroleum products and compounds containing
them, including gasoline, diesel fuel and oil; explosives, flammable materials;
radioactive materials; polychlorinated biphenyls ("PCBs") and compounds
containing them; lead and lead-based paint; asbestos or asbestos-containing
materials in any form that is or could become friable; underground or
above-ground storage tanks, whether empty or containing any substance; any
substance the presence of which on the Property is prohibited by any federal,
state or local authority; any substance that requires special handling; and any
other material or substance now or in the future defined as a "hazardous
substance," "hazardous material", "hazardous waste", "toxic substance", "toxic
pollutant", "contaminant" or pollutant" within the meaning of any Environmental
Law. "Release" of any Hazardous Materials includes but is not limited to any
release, deposit, discharge, emission, leaking, spilling, seeping, migrating,
injecting, pumping, pouring, emptying, escaping, dumping, disposing or other
movement of Hazardous Materials.
Section 12.2 Environmental Representations and Warranties. Borrower
--------------------------------------------
represents and warrants to the best of Borrower's knowledge, based upon that
certain Phase I Environmental Site Assessment for the Property located at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, prepared by Cosmos Environmental Services,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ and dated June 1998 (the
"Report"; a true and correct copy of which has been delivered to the Holders)
and information that Borrower knows or should reasonably have known, that, as of
the date of such report: (a) there are no Hazardous Materials (defined below) or
underground storage tanks in, on, or under the Property, except those that are
both (i) in compliance with Environmental Laws and with permits issued pursuant
thereto (if such permits are required), if any, and (ii) either (A) in amounts
not in excess of that necessary to operate the Property or (B) fully disclosed
to and approved by Trustee/Collateral Agent in writing pursuant to an
Environmental Report; (b) there are no past, present or threatened Releases
(defined below) of Hazardous Materials in violation of any Environmental Law and
which would require remediation by a governmental authority in, on, under or
from the Property except as described in the Environmental Report; (c) there is
no threat of any Release of Hazardous Materials migrating to the Property except
as described in the Environmental Report; (d) there is no past or present
non-compliance with Environmental Laws, or with permits issued pursuant thereto,
in connection with the Property except as described in the Environmental Report;
(e) Borrower does not know of, and has not received, any written or oral notice
or other communication from any person or entity (including but not limited to a
governmental entity) relating to Hazardous Materials in, on, under or from the
Property; and (f) Borrower has truthfully and fully provided to
Trustee/Collateral Agent, in writing, any and all information relating to
environmental conditions in, on, under or from the Property known to Borrower or
contained in Borrower's files and records, including but not limited to any
reports relating to Hazardous Materials in, on, under or migrating to or from
the Property and/or to the environmental condition of the Property. Except as
set forth on Schedule 12.2, to the best of Borrower's knowledge, Borrower is not
aware and knows of no material changes in the condition of the Property
following the date of the Report. Except as set forth on Schedule 12.2, Borrower
has not performed any environmental abatement work at the Property, including
without limitation, any clean-up or remediation following the terrorist attacks
on the World Trade Center complex on September 11, 2001.
36
Section 12.3 Environmental Covenants. Borrower covenants and agrees
-----------------------
that so long as Borrower owns, manages, is in possession of, or otherwise
controls the operation of the Property: (a) all uses and operations on or of the
Property, whether by Borrower or any other person or entity, shall be in
compliance with all Environmental Laws and permits issued pursuant thereto; (b)
there shall be no Releases of Hazardous Materials in, on, under or from the
Property; (c) there shall be no Hazardous Materials in, on, or under the
Property, except those that are both (i) in compliance with all Environmental
Laws and with permits issued pursuant thereto, if and to the extent required,
and (ii) in amounts not in excess of that necessary to operate the Property; (d)
Borrower shall keep the Property free and clear of all Environmental Liens; (e)
Borrower shall, at its sole cost and expense, fully and expeditiously cooperate
in all activities pursuant to Section 12.4 below, including but not limited to
providing all relevant information and making knowledgeable persons available
for interviews; (f) Borrower shall, at its sole cost and expense, perform any
environmental site assessment or other investigation of environmental conditions
in connection with the Property, pursuant to any reasonable written request of
Trustee/Collateral Agent, upon Trustee/Collateral Agent's reasonable belief that
the Property is not in full compliance with all Environmental Laws, and share
with Trustee/Collateral Agent the reports and other results thereof, and
Trustee/Collateral Agent and other Indemnified Parties (defined in Section 13.1)
shall be entitled to rely on such reports and other results thereof; (g)
Borrower shall, at its sole cost and expense, comply with all reasonable written
requests of Trustee/Collateral Agent to (i) reasonably effectuate remediation of
any Hazardous Materials in, on, under or from the Property; and (ii) comply with
any Environmental Law; (h) Borrower shall not allow any tenant or other user of
the Property to violate any Environmental Law; and (i) Borrower shall
immediately notify Trustee/Collateral Agent in writing after it has become aware
of (A) any presence or Release or threatened Releases of Hazardous Materials in,
on, under, from or migrating towards the Property; (B) any non-compliance with
any Environmental Laws related in any way to the Property; (C) any actual or
potential Environmental Lien which affects or might affect the Property; (D) any
required or proposed remediation of environmental conditions relating to the
Property; and (E) any written or oral notice or other communication of which
Borrower becomes aware from any source whatsoever (including but not limited to
a governmental entity) relating in any way to Hazardous Materials at the
Property. Any failure of Borrower to perform its obligations pursuant to this
Section 12.2 shall constitute bad faith waste with respect to the Property.
Section 12.4 Trustee/Collateral Agent's Rights. Trustee/Collateral
---------------------------------
Agent and any other person or entity designated by Trustee/Collateral Agent,
including but not limited to any representative of a governmental entity, and
any environmental consultant, and any receiver appointed by any court of
competent jurisdiction, shall have the right, but not the obligation, to enter
upon the Property at all reasonable times and upon reasonable notice to
Borrower, to assess any and all aspects of the environmental condition of the
Property and its use, including but not limited to conducting any environmental
assessment or audit (the scope of which shall be determined in
Trustee/Collateral Agent's sole discretion) and taking samples of soil,
groundwater or other water, air, or building materials, and conducting other
invasive testing, provided that it shall repair any damage resulting from such
testing. Borrower shall cooperate with and provide access to Trustee/Collateral
Agent and any such person or entity designated by Trustee/Collateral Agent.
37
Section 12.5 Operations and Maintenance Programs. If recommended by
-----------------------------------
the Environmental Report or any other environmental assessment or audit of the
Property, Borrower shall establish and comply with an operations and maintenance
program with respect to the Property prepared by a qualified environmental
consultant, which program shall address any asbestos containing material or lead
based paint that may now or in the future be detected at or on the Property.
Without limiting the generality of the preceding sentence, Trustee/Collateral
Agent may require (a) periodic notices or reports to Trustee/Collateral Agent in
form, substance and at such intervals as Trustee/Collateral Agent may specify,
(b) an amendment to such operations and maintenance program to address changing
circumstances, laws or other matters, (c) at Borrower's sole expense,
supplemental examination of the Property by consultants specified by
Trustee/Collateral Agent, (d) access to the Property by Trustee/Collateral
Agent, its agents or servicer, upon reasonable notice to Borrower (except in a
case of emergency) and at reasonable times, to review and assess the
environmental condition of the Property and Borrower's compliance with any
operations and maintenance program, and (e) variation of the operations and
maintenance program in response to the reports provided by any such consultants.
ARTICLE XIII
INDEMNIFICATION
Section 13.1 General Indemnification. Borrower shall, at its sole cost
-----------------------
and expense, protect, defend, indemnify, release and hold harmless the
Indemnified Parties (defined below) from and against any and all Losses (defined
below) imposed upon or incurred by or asserted against any Indemnified Parties
and directly or indirectly arising out of or in any way relating to any one or
more of the following (a) any accident, injury to or death of persons or loss of
or damage to property occurring in, on or about the Property or any part thereof
or on the adjoining sidewalks, curbs, adjacent property or adjacent parking
areas, streets or ways; (b) any use, nonuse or condition in, on or about the
Property or any part thereof or on the adjoining sidewalks, curbs, adjacent
property or adjacent parking areas, streets or ways; (c) performance of any
labor or services or the furnishing of any materials or other property in
respect of the Property or any part thereof, (d) any failure of the Property to
be in compliance with any Applicable Laws; (e) any and all claims and demands
whatsoever which may be asserted against Trustee/Collateral Agent by reason of
any alleged obligations or undertakings on its part to perform or discharge any
of the terms, covenants or agreements contained in any Lease; or (f) the payment
of any commission, charge or brokerage fee to anyone which may be payable in
connection with the leasing of the Property to any subtenant of any part
thereof. Any amounts payable to Trustee/Collateral Agent by reason of the
application of this Section 13.1 shall become immediately due and payable and
shall bear interest at the rate of 11% per annum from the date loss or damage is
sustained by Trustee/Collateral Agent until paid. The term "Losses" shall mean
any and all claims, suits, liabilities (including, without limitation, strict
liabilities), actions, proceedings, obligations, debts, damages, losses, costs,
expenses, fines, penalties, charges, fees, judgments, awards, amounts paid in
settlement of whatever kind or nature (including but not limited to attorneys'
fees and other costs of defense). The term "Indemnified Parties" shall mean (a)
Trustee/Collateral Agent, (b) any prior owner or holder of the Note, (c) any
servicer or prior servicer of the Debt, (d) any trustees, custodians or other
fiduciaries who hold or who have held a full or partial interest in the Debt for
the benefit of any Investor or other third party, (e) any receiver or other
fiduciary appointed in a foreclosure or other Creditors
38
Rights Laws proceeding, (f) any officers, directors, shareholders, partners,
members, employees, agents, servants, representatives, contractors,
subcontractors, affiliates or subsidiaries of any and all of the foregoing, and
(g) the heirs, legal representatives, successors and assigns of any and all of
the foregoing (including, without limitation, any successors by merger,
consolidation or acquisition of all or a substantial portion of the Indemnified
Parties' assets and business), in all cases whether during the term of the Debt
or as part of or following a foreclosure of the Debt.
Section 13.2 Mortgage and /or Intangible Tax. Borrower shall, at its
-------------------------------
sole cost and expense, protect, defend, indemnify, release and hold harmless the
Indemnified Parties from and against any and all Losses imposed upon or incurred
by or asserted against any Indemnified Parties and directly or indirectly
arising out of or in any way relating to any tax on the making and/or recording
of this Security Instrument, the Note, the Indenture or any of the Other
Security Documents.
Section 13.3 Duty to Defend; Attorneys' Fees and Other Fees and
--------------------------------------------------
Expenses. Upon written request by any Indemnified Party, Borrower shall defend
--------
such Indemnified Party (if requested by any Indemnified Party, in the name of
the Indemnified Party) by attorneys and other professionals reasonably approved
by the Indemnified Parties. Notwithstanding the foregoing, upon the occurrence
of an Event of Default any Indemnified Parties may, in their sole discretion,
engage their own attorneys and other professionals to defend or assist them,
and, at the option of Indemnified Parties, their attorneys shall control the
resolution of any claim or proceeding. Upon demand, Borrower shall pay or, in
the sole discretion of the Indemnified Parties, reimburse, the Indemnified
Parties for the payment of reasonable fees and disbursements of attorneys,
engineers, environmental consultants, laboratories and other professionals in
connection therewith.
Section 13.4 Intentionally Omitted.
---------------------
ARTICLE XIV
WAIVERS
Section 14.1 Waiver of Counterclaim. Borrower hereby waives the right
----------------------
to assert a counterclaim, other than a mandatory or compulsory counterclaim, in
any action or proceeding brought against it by Trustee/Collateral Agent arising
out of or in any way connected with this Security Instrument, the Note, the
Indenture, any of the Other Security Documents or the Obligations.
Section 14.2 Marshalling and Other Matters. Borrower hereby waives, to
-----------------------------
the extent permitted by law, the benefit of all appraisement, valuation, stay,
extension, reinstatement and redemption laws now or hereafter in force and all
rights of marshalling in the event of any sale hereunder of the Property or any
part thereof or any interest therein. Further, Borrower hereby expressly waives
any and all rights of redemption from sale under any order or decree of
foreclosure of this Security Instrument on behalf of Borrower, and on behalf of
each and every person acquiring any interest in or title to the Property
subsequent to the date of this Security Instrument and on behalf of all persons
to the extent permitted by applicable state or federal law.
39
Section 14.3 Waiver of Notice. Borrower shall not be entitled to and
----------------
hereby expressly waives any right to receive any notices of any nature
whatsoever from Trustee/Collateral Agent except (a) with respect to matters for
which this Security Instrument specifically and expressly provides for the
giving of notice by Trustee/Collateral Agent to Borrower and (b) with respect to
matters for which Trustee/Collateral Agent is required by applicable state or
federal law to give notice.
Section 14.4 Waiver of Statute of Limitations. Borrower hereby
--------------------------------
expressly waives and releases to the fullest extent permitted by law, the
pleading of any statute of limitations as a defense to payment of the Debt or
performance of its Other Obligations.
Section 14.5 Sole Discretion of Trustee/Collateral Agent. Wherever
-------------------------------------------
pursuant to this Security Instrument (a) Trustee/Collateral Agent exercises any
right given to it to approve or disapprove, (b) any arrangement or term is to be
satisfactory to Trustee/Collateral Agent, or (c) any other decision or
determination is to be made by Trustee/Collateral Agent, the decision to approve
or disapprove all decisions that arrangements or terms are satisfactory or not
satisfactory, and all other decisions and determinations made by
Trustee/Collateral Agent, shall be in the sole discretion of Trustee/Collateral
Agent, except as may be otherwise expressly and specifically provided herein.
Section 14.6 Waiver of Trial by Jury. BORROWER AND LENDER, BY
-----------------------
ACCEPTANCE OF THIS SECURITY INSTRUMENT, HEREBY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR
INDIRECTLY TO THE LOAN, THE APPLICATION FOR THE LOAN, THE NOTE, THE INDENTURE,
THIS SECURITY INSTRUMENT OR THE OTHER SECURITY DOCUMENTS OR ANY ACTS OR
OMISSIONS OF LENDER OR BORROWER.
Section 14.7 Waiver of Foreclosure Defense. Borrower hereby waives any
-----------------------------
defense Borrower might assert or have by reason of Trustee/Collateral Agent's
failure to make any tenant or lessee of the Property a party defendant in any
foreclosure proceeding or action instituted by Trustee/Collateral Agent.
ARTICLE XV
INTENTIONALLY OMITTED.
ARTICLE XVI
NOTICES
Section 16.1 Notices. All notices or other written communications
-------
hereunder shall be deemed to have been properly given (i) upon delivery, if
delivered in person with receipt acknowledged by the recipient thereof, (ii) one
(1) Business Day (defined below) after having been deposited for overnight
delivery with any reputable overnight courier service, or (iii) three (3)
Business Days after having been deposited in any post office or mail depository
regularly
40
maintained by the U.S. Postal Service and sent by registered or certified mail,
postage prepaid, return receipt requested, addressed to Borrower or
Trustee/Collateral Agent, as the case may be, at the addresses set forth on the
first page of this Security Instrument or addressed as such party may from time
to time designate by written notice to the other party.
Either party by notice to the other may designate additional or different
addresses for subsequent notices or communications. For purposes of this
Subsection, "Business Day" shall mean a day on which commercial banks are not
authorized or required by law to close in New York, New York.
ARTICLE XVII
CHOICE OF LAW
Section 17.1 Choice of Law. This Security Instrument and any
-------------
determination of deficiency judgments shall be governed, construed, applied and
enforced in accordance with the laws of the state in which the Property is
located and applicable federal law.
Section 17.2 Provisions Subject to Law. All rights, powers and
-------------------------
remedies provided in this Security Instrument may be exercised only to the
extent that the exercise thereof does not violate any applicable state or
federal law and are intended to be limited to the extent necessary so that they
will not render this Security Instrument invalid, unenforceable or not entitled
to be recorded, registered or filed under any applicable state or federal law.
ARTICLE XVIII
INTENTIONALLY OMITTED.
ARTICLE XIX
COSTS
Section 19.1 Performance At Borrower's Expense. Borrower hereby
---------------------------------
acknowledges and agrees to pay, immediately, with or without demand, all such
fees (as the same may be increased or decreased from time to time), and any
additional fees of a similar type or nature which may be imposed by
Trustee/Collateral Agent from time to time in accordance with and as set forth
in Section 607 of the Indenture. Wherever it is provided for herein that
Borrower pay any costs and expenses, such costs and expenses shall include, but
not be limited to, all reasonable counsel fees of Trustee/Collateral Agent.
Section 19.2 Counsel Fees for Enforcement.
----------------------------
(a) Borrower shall pay to Trustee/Collateral Agent on demand any and all
expenses, including reasonable legal fees incurred or paid by Trustee/Collateral
Agent in protecting its interest in the Property or in collecting any amount
payable under the Note, the Indenture, this Security Instrument or the Other
Security Documents, or in enforcing its rights hereunder with
41
respect to the Property, whether or not any legal proceeding is commenced
hereunder or thereunder, together with interest thereon at the rate of 11% per
annum from the date paid or incurred by Trustee/Collateral Agent until such
expenses are paid by Borrower.
ARTICLE XX
DEFINITIONS
Section 20.1 General Definitions. Unless the context clearly indicates
-------------------
a contrary intent or unless otherwise specifically provided herein, words used
in this Security Instrument may be used interchangeably in singular or plural
form and the word "Borrower" shall mean "each Borrower and any subsequent owner
or owners of the Property or any part thereof or any interest therein," the word
"Trustee/Collateral Agent" shall mean "Trustee/Collateral Agent and any
subsequent holder of the Note," the word "Note" shall mean "the Note and any
other evidence of indebtedness secured by this Security Instrument," the word
"person" shall include an individual, corporation, limited liability company,
partnership, trust, unincorporated association, government, governmental
authority and any other entity, the word "Property" shall include any portion of
the Property and any interest therein, and the phrase "counsel fees" shall
include any and all attorneys', paralegal and law clerk fees and disbursements,
including, but not limited to fees and disbursements at the pre-trial, trial and
appellate levels incurred or paid by Trustee/Collateral Agent in protecting its
interest in the Property, the Leases and the Rents and enforcing its rights
hereunder, whether with respect to retained firms, the reimbursement for the
expenses of in-house staff or otherwise.
Section 20.2 Headings, etc. The headings and captions of various
-------------
Articles and Sections of this Security Instrument are for convenience of
reference only and are not to be construed as defining or limiting, in any way,
the scope or intent of the provisions hereof.
ARTICLE XXI
MISCELLANEOUS PROVISIONS
Section 21.1 No Oral Change. This Security Instrument, and any
--------------
provisions hereof, may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Borrower or Trustee/Collateral Agent, but only by an agreement in writing signed
by the party against whom enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought.
Section 21.2 Liability. If Borrower consists of more than one person,
---------
the obligations and liabilities of each such person hereunder shall be joint and
several. This Security Instrument shall be binding upon and inure to the benefit
of Borrower and Trustee/Collateral Agent and their respective successors and
assigns forever.
Section 21.3 Inapplicable Provisions. If any term, covenant or
-----------------------
condition of the Note, the Indenture or this Security Instrument is held to be
invalid, illegal or unenforceable in any respect, the Note, the Indenture and
this Security Instrument shall be construed without such provision.
42
Section 21.4 Duplicate Originals; Counterparts. This Security
---------------------------------
Instrument may be executed in any number of duplicate originals and each
duplicate original shall be deemed to be an original. This Security Instrument
may be executed in several counterparts, each of which counterparts shall be
deemed an original instrument and all of which together shall constitute a
single Security Instrument. The failure of any party hereto to execute this
Security Instrument, or any counterpart hereof, shall not relieve the other
signatories from their obligations hereunder.
Section 21.5 Number and Gender. Whenever the context may require, any
-----------------
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice versa.
Section 21.6 Indenture. If any conflict or inconsistency exists
---------
between this Security Instrument and the xIndenture, the Indenture shall govern.
ARTICLE XXII
SPECIAL NEW YORK PROVISIONS
Section 22.1 Inconsistencies. In the event of any inconsistencies
---------------
between the terms and conditions of this Article 22 and the other provisions of
this Security Instrument, the terms and conditions of this Article 22 shall
control and be binding.
Section 22.2 Lien Law. This Security Instrument is made subject to
--------
Section 13 of the New York Lien Law and, in compliance with Section 13 of the
New York Lien Law, the Borrower will receive and hold the right to receive the
consideration for the Note paid to or received by the Borrower as a trust fund
to be applied first for the purpose of paying any unpaid costs of any
improvements before any part of the same is used for any other purpose. The
Borrower will also indemnify and hold the Trustee/Collateral Agent harmless
against all loss, liability, claim, cost or expense arising out of or relating
to any proceedings instituted by any complainant alleging a violation by the
Borrower of Article 3-A of the New York Lien Law.
Section 22.3 Application of Rpl (S)254. The covenants and conditions
-------------------------
in this Security Instrument, other than those included in the New York Statutory
Short Form of Mortgage, shall be construed as affording to Trustee/Collateral
Agent rights additional to, and not exclusive of, the rights conferred under the
provisions of New York Real Property Law ("RPL") (S) 254. The following
provisions of RPL (S) 254 shall not apply to this Security Instrument and the
rights and obligations of the parties to this Security Instrument: (a)
subsection "4," covering the use of casualty or flood insurance proceeds to
restore; and (b) the portion of subsection "4-a" that begins with the word
"however" and continues to the end of the paragraph. Any inconsistency between
this Security Instrument and RPL (S) 254 shall be resolved in favor of this
Security Instrument.
Section 22.4 Notice Under Rpl (S)291-F. This Security Instrument is
-------------------------
intended to be, and shall operate as, the agreement described in RPL (S) 291-f
and shall be entitled to the benefits afforded by that statute. Borrower shall
(a) deliver the written notices described in RPL (S) 291-f to such space tenants
as Trustee/Collateral Agent shall require (consistent with RPL (S)
43
291-f), including a direction that, if Trustee/Collateral Agent notifies such
space tenant of an Event of Default, such space tenant shall pay its Rents to
Trustee/Collateral Agent, and (b) take such other action, as Trustee/Collateral
Agent may now or in the future require, to afford Trustee/Collateral Agent the
full protections and benefits of Section 291-f. In addition, Borrower
specifically authorizes Trustee/Collateral Agent to send any such notices and
take such other actions at any time.
Section 22.5 Foreclosure and Sale. Upon the occurrence of an Event of
--------------------
Default, Trustee/Collateral Agent may elect to sell (and, in the case of any
default by any foreclosure sale purchaser, resell) the Property or any part of
the Property by exercise of the power of foreclosure or of sale granted to
Trustee/Collateral Agent by Article 13 or 14 of the New York Real Property
Actions and Proceedings Law (the "RPAPL"). In such case, Trustee/Collateral
Agent may commence a civil action to foreclose this Security Instrument pursuant
to Article 13 of the RPAPL, or it may proceed and sell the Property pursuant to
Article 14 of the RPAPL, to satisfy the Note secured hereby.
Section 22.6 This Security Instrument does not cover real property
principally improved or to be improved by one or more structures containing in
the aggregate not more than six residential dwelling units each having their own
separate cooking facilities.
[NO FURTHER TEXT ON THIS PAGE]
44
IN WITNESS WHEREOF, THIS SECURITY INSTRUMENT HAS BEEN EXECUTED BY BORROWER
THE DAY AND YEAR FIRST ABOVE WRITTEN .
BORROWER:
415 GREENWICH GC, LLC, a New York limited
liability company
By: Globix Corporation, a Delaware corporation,
its
--------------
By:
----------------------------------------
Name:
Title:
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
SS.:
COUNTY OF NEW YORK )
On the day of April, 2002, before me, the undersigned, a Notary
-----
Public in and for said state, personally appeared ,
---------------------
personally known to me or proved to me on the basis of satisfactory evidence to
be the person whose name is subscribed to the within instrument and acknowledged
to me that he executed the same in his capacity and that by his signature on the
instrument, the person or the entity upon behalf of which the person acted,
executed the instrument.
-----------------------------------
Notary Public
46
EXHIBIT A
(Description of Land)
All of That Certain Lot, Piece or Parcel of Land, with the Buildings
Improvements Thereon, Situate, Lying and Being
47
EXHIBIT B
FORM OF
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (the
"Agreement") is made as of this day of , 2002, which
------- --------------------
date shall be the effective date of this Agreement, between ,
-------------------
a (the "Tenant") and HSBC Bank USA, in its capacity as trustee
---------------
under the Indenture referred to below, as collateral agent, as mortgagee and
secured party for the benefit of the Holders (as defined below), having its
corporate trust office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (together
with its successors and/or assigns the "Trustee/Collateral Agent").
is the lessor (the "Landlord") and Tenant is the lessee under
-------------
the lease described in Exhibit A attached hereto (as the same may from time to
time be assigned, subleased, renewed, extended, amended, modified or
supplemented, collectively the "Lease").
The Trustee/Collateral Agent, in its capacity as trustee under that certain
Indenture (the "Indenture") dated April , 2002, is acting as the secured party
--
on behalf of the Holders of those certain 11% Senior Secured Notes due 2008
which are secured by, among other things, that certain Mortgage, Security
Agreement and Fixture Filing on certain real and personal property and
improvements (the "Premises"), recorded or to be recorded in the appropriate
records of New York County, State of New York (the "Security Instrument").
The Trustee/Collateral Agent has requested the Tenant to confirm the fact
that the Lease is subject and subordinate to the Security Instrument.
The Tenant is willing to confirm the subordination of the Lease, provided
it obtains assurance from the Trustee/Collateral Agent that its possession of
the premises demised under the Lease (the "Demised Premises), which Demised
Premises is all or a portion of the Premises, and its right to use any common
areas will not be disturbed by reason of or in the event of the foreclosure of
the Security Instrument.
The Trustee/Collateral Agent is willing to give such assurance.
NOW, THEREFORE, for and in consideration of the mutual agreements herein
contained and other good and valuable consideration, the parties hereto do
hereby mutually covenant and agree as follows:
1. The Tenant hereby subordinates the Lease and all terms and conditions
contained therein and all rights, options, liens and charges created thereby to
the Security Instrument and the lien thereof, and to all present or future
advances under the obligations secured thereby and
48
to all renewals, extensions, amendments, modifications and/or supplements of
same, to the full extent of all amounts secured thereby from time to time.
2. So long as no event of default on the part of the Tenant under the Lease
shall exist which would entitle the Landlord to terminate the Lease, or if such
an event of default shall exist, so long as the Tenant's time to cure the
default shall not have expired, the term of the Lease shall not be terminated
and the Tenant's right of possession to the Demised Premises and its rights in
and to any common areas and its other rights arising out of the Lease will all
be fully recognized and protected by the Trustee/Collateral Agent and shall not
be disturbed, canceled, terminated or otherwise affected by reason of the
Security Instrument or any action or proceeding instituted by the
Trustee/Collateral Agent to foreclose the Security Instrument, or any extension,
renewal, consolidation or replacement of same, irrespective of whether the
Tenant shall have been joined in any action or proceeding.
3. In the event that the Trustee/Collateral Agent takes possession of the
Premises, either as the result of foreclosure of the Security Instrument or
accepting a deed to the Premises in lieu of foreclosure, or otherwise, or the
Premises shall be purchased at such a foreclosure by a third party, the Tenant
shall attorn to the Trustee/Collateral Agent or such third party and recognize
the Trustee/Collateral Agent or such third party as its landlord under the
Lease, and the Trustee/Collateral Agent or such third party will recognize and
accept the Tenant as its tenant thereunder, whereupon, the Lease shall continue
in full force and effect as a direct lease between the Trustee/Collateral Agent
or such third party and the Tenant for the full term thereof, together with all
extensions and renewals thereof, and the Trustee/Collateral Agent or such third
party shall there-after assume and perform all of the Landlord's obligations, as
the landlord under the Lease with the same force and effect as if the
Trustee/Collateral Agent or such third party were originally named therein as
the Landlord; provided, however, that the Trustee/Collateral Agent or such third
party shall not be:
(a) liable for any act or omission of any prior landlord (including the
Landlord), except to the extent the Trustee/Collateral Agent was furnished
notice and opportunity to cure the same in accordance with the provisions of
this Agreement prior to taking possession of such Premises; or
(b) subject to any offsets or defenses which the Tenant might have against
any prior landlord (including the Landlord), except to the extent the
Trustee/Collateral Agent was furnished notice and opportunity to cure the same
in accordance with the provisions of this Agreement prior to taking possession
of such Premises; or
(c) bound by any rent or additional rent which the Tenant might have paid
for more than two (2) months in advance to any prior landlord (including the
Landlord); or
(d) bound by any amendment or modification of the Lease not consented to in
writing by the Trustee/Collateral Agent.
4. Notwithstanding anything to the contrary in this Agreement or otherwise,
in the event the Trustee/Collateral Agent or a third party takes possession of
the Premises as provided
49
in paragraph 3 above, the liability of the Trustee/Collateral Agent or such
third party under the Lease shall be limited to the Trustee/Collateral Agent's
or such third party's, as the case may be, interest in the Premises, and upon
any assignment or other transfer of the Trustee/Collateral Agent's or such
third-party's interest in the Premises, the Trustee/Collateral Agent or such
third party, as applicable, shall be discharged and released from any obligation
or liability under the Lease arising or accruing after the date of such
assignment or transfer.
5. Tenant agrees not to subordinate the Lease to any other lien or
encumbrance which (i) affects the Premises under the Lease, or any part thereof,
or (ii) is junior to the Security Instrument, without the express written
consent of the Trustee/Collateral Agent, and any such subordination or any such
attempted subordination or agreement to subordinate without such consent of
Trustee/Collateral Agent, shall be void and of no force and effect.
6. Tenant agrees to provide copies of all notices given Landlord under the
Lease to Trustee/Collateral Agent at the following address:
Trustee/Collateral Agent:
-------------------------------
-------------------------------
-------------------------------
-------------------------------
Telephone:
--------------------
Telecopy:
--------------------
or to such other address as Trustee/Collateral Agent shall designate in writing;
and all such notices shall be in writing and shall be considered as properly
given if (i) mailed to the addressee by first class United States mail, postage
prepaid, registered or certified with return receipt requested, (ii) by
delivering same in person to the addressee, or (iii) by delivery to a third
party commercial delivery service for same day or next day delivery to the
office of the addressee with proof of delivery; any notice so given shall be
effective, as applicable, upon (a) the third (3rd) day following the day such
notice is deposited with the United States mail, (b) delivery to the addressee,
or (c) upon delivery to such third party delivery service; and any notice given
in any other manner shall be effective only if and when received by the
addressee.
7. In the event Landlord shall fail to perform or observe any of the terms,
conditions or agreements in the Lease, Tenant shall give written notice thereof
to Trustee/Collateral Agent and Trustee/Collateral Agent shall have the right
(but not the obligation) to cure such default. Tenant shall not take any action
with respect to such default under the Lease (including without limitation any
action in order to terminate, rescind or avoid the Lease or to withhold any rent
or other monetary obligations thereunder) for a period of thirty (30) days
following receipt of such written notice by Trustee/Collateral Agent; provided,
however, that in the case of any default which cannot with diligence be cured
within such thirty (30) day period, if Trustee/Collateral Agent shall proceed
promptly to cure such default and thereafter prosecute the curing of such
default with diligence and continuity, then the time within which such default
may be cured shall be extended for such period as may be necessary to complete
the curing of such default with diligence and continuity.
50
8. Nothing contained in this Agreement shall in any way impair or affect
the lien created by the Security Instrument, except as specifically set forth
herein.
9. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns; provided, however,
that in the event of the assignment or transfer of the interest of the
Trustee/Collateral Agent to a party that assumes the Trustee/Collateral Agent's
obligations and liabilities hereunder, all obligations and liabilities of the
Trustee/Collateral Agent under this Agreement shall terminate, and thereupon all
such obligations and liabilities shall be the responsibility of the party to
whom the Trustee/Collateral Agent's interest is assigned or transferred.
10. In the event of any litigation or other legal proceeding arising
between the parties to this Agreement, whether relating to the enforcement of a
party's rights under this Agreement or otherwise, the prevailing party shall be
entitled to receive its reasonable attorney's fees and costs of suit from the
non-prevailing party in such amount as the court shall determine.
(signatures follow immediately)
51
IN WITNESS WHEREOF, this Agreement is executed as of the date and date
first above written.
WITNESS/ATTEST: TENANT:
[__________________________]
-----------------------------
By:
--------------------------------------
Name:
Title:
WITNESS/ATTEST: TRUSTEE/COLLATERAL AGENT:
HSBC BANK USA, as trustee/collateral agent
-----------------------------
By:
--------------------------------------
Name:
Title:
52
STATE OF
-----------------
COUNTY OF
-----------------
I, , a Notary Public of the County and State
-------------------------
aforesaid, certify that , personally came before me
----------------------------
this day and acknowledged that (s)he is a of
-------------------------
, the of
------------------------- --------------------
, that executed the foregoing
--------------------------------------------------
instrument, and acknowledged to me that the same was the act of the said
, and that (s)he executed the same as the act of such
------------------
for the purposes and consideration therein expressed and in
------------------
the capacity therein stated.
WITNESS my hand and official stamp or seal, this day of
------
,
----------------- ------
-----------------------------
Notary Public
My Commission Expires:
(Notary Seal)
53
STATE OF
-----------------
COUNTY OF
---------------
I, , a Notary Public of the County and State
-------------------------
aforesaid, certify that , personally came before me
----------------------------
this day and acknowledged that (s)he is a of
-------------------------
, the of
------------------------- --------------------
, that executed the foregoing
--------------------------------------------------
instrument, and acknowledged to me that the same was the act of the said
, and that (s)he executed the same as the act of such
------------------
for the purposes and consideration therein expressed and in
------------------
the capacity therein stated.
WITNESS my hand and official stamp or seal, this day of
------
, .
----------------- -----
-----------------------------
Notary Public
My Commission Expires:
(Notary Seal)
54