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EXHIBIT 10(p)
OKLAHOMA
Prepared by and after recording, please return to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
a partnership which includes
professional corporations
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
MORTGAGE, ASSIGNMENT OF RENTS AND LEASES AND SECURITY AGREEMENT
from
EV INTERNATIONAL, INC., Mortgagor
to
THE CHASE MANHATTAN BANK, as Administrative Agent, Mortgagee
DATED AS OF FEBRUARY 10, 1997
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OKLAHOMA
MORTGAGE, ASSIGNMENT OF RENTS
AND LEASES AND SECURITY AGREEMENT
THIS MORTGAGE ASSIGNMENT OF RENTS AND LEASES AND SECURITY
AGREEMENT, dated as of February 10, 1997 is made by EV INTERNATIONAL, INC., a
Delaware corporation, formerly named ELECTRO-VOICE, INCORPORATED, a Delaware
corporation ("MORTGAGOR"), whose address is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, to THE CHASE MANHATTAN BANK, a New York banking corporation whose address
is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as Administrative Agent (in such
capacity, "MORTGAGEE") for the several banks and other financial institutions
(the "LENDERS") from time to time parties to the Credit Agreement dated as of
February 10, 1997, (as the same may be amended, supplemented, waived or
otherwise modified from time to time the "SENIOR SECURED CREDIT AGREEMENT")
among Gulton Acquisition Corp., a Delaware corporation ("BORROWER"), the Lenders
and Mortgagee. References to this "Mortgage" shall mean this instrument and any
and all renewals, modifications, amendments, supplements, extensions,
consolidations, substitutions, spreaders and replacements of this instrument.
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned thereto in the Senior Secured Credit Agreement.
Background
A. Gulton Holdings Corp., a Delaware corporation which, on or
after the Effective Date, will be renamed EVI Audio Holdings, Inc. ("HOLDINGS")
and Borrower, its direct Wholly Owned Subsidiary, were newly formed companies
organized by an investor group led by Greenwich Street Capital Partners, Inc., a
Delaware corporation ("GSCP").
B. Borrower acquired Gulton Industries Inc., a Delaware
corporation ("GII") which was a subsidiary of ▇▇▇▇ ▇▇ Industries, Inc. ("▇▇▇▇
▇▇") through the purchase from ▇▇▇▇ ▇▇ and ▇▇▇▇ ▇▇ PLC of the capital stock of
GII (the "ACQUISITION") pursuant to the Stock Purchase Agreement, dated as of
December 12, 1996, by and among ▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ PLC and Borrower (as amended,
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supplemented, waived or otherwise modified from time to time in accordance with
the Senior Secured Credit Agreement, the "STOCK PURCHASE AGREEMENT").
C. Borrower merged with and into GII (the "FIRST MERGER"), and
GII as surviving corporation of the First Merger merged (the "SECOND MERGER";
the First Merger together with the Second Merger, the "MERGERS") with and into
Electro-Voice, Incorporated, a Delaware corporation and a Wholly Owned
Subsidiary of GII, which was thereupon renamed EV International, Inc.
D. In order to (i) finance a portion of the Acquisition
Consideration, (ii) refinance a portion of the existing indebtedness of GII and
its subsidiaries, (iii) pay certain fees, taxes and expenses related to (x) the
Acquisition and the financing thereof and (y) the refinancing of such existing
indebtedness of GII and its subsidiaries and (iv) finance the working capital
and other business requirements of Mortgagor and its subsidiaries following the
consummation of the Acquisition and the Merger, Acquisition Co. has requested
that the Lenders make the Loans and issue and participate in the Letters of
Credit in accordance with the terms of the Senior Secured Credit Agreement.
E. Mortgagor is the owner of the parcel(s) of real property
described on Schedule A attached hereto (such real property, together with all
of the buildings, improvements, structures and fixtures now or subsequently
located thereon (the "IMPROVEMENTS"), being collectively referred to as the
"REAL ESTATE").
F. Pursuant to the terms of the Senior Secured Credit
Agreement, the Lenders have agreed, among other things, to make the Loans and
the Issuing Lender has agreed to issue, and the L/C Participants have agreed to
acquire undivided participating interests in, the Letter(s) of Credit for the
account of the Borrower upon the terms and subject to the conditions set forth
in the Senior Secured Credit Agreement which conditions include the grant by
Mortgagor to Mortgagee of a first lien upon and perfected security interest in,
among other things, all estate, right, title and interest of Mortgagor in and to
the Real Estate pursuant to the terms hereof.
G. Mortgagor is the surviving corporation of any merger of the
Borrower, and it is to the advantage and benefit of Mortgagor that the Lenders
make the Loans to the Borrower.
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Granting Clauses
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Mortgagor agrees that to secure:
(a) the repayment of principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans
and Reimbursement Obligations and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Loan Party, whether
or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans (as they may be evidenced by the Notes from
time to time) and all other obligations (including the Reimbursement
Obligations) and liabilities of Mortgagor to Mortgagee, the Issuing
Lender and the Lenders, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred,
which may arise under, out of, or in connection with, the Senior
Secured Credit Agreement, the Notes, the Loans, the Letters of Credit,
the Security Documents, any Guarantee Obligation of Mortgagor as to
which any Lender is a beneficiary, any Permitted Hedging Arrangement
with any Lender or any banking affiliate of any Lender (whether entered
into directly, or guaranteed, by Mortgagor), the Guarantee and
Collateral Agreement dated as of February 10, 1997 between Mortgagor,
Holdings and Mortgagee (the "GUARANTEE") or any other document made,
delivered or given in connection therewith, in each case whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without
limitation, all fees, charges and disbursements of counsel to the
Administrative Agent, the Issuing Lender or any Lender that are
required to be paid by any Loan Party pursuant to the Senior Secured
Credit Agreement) (the items set forth above being referred to
collectively as the "INDEBTEDNESS"); and
(b) the performance of all covenants, agreements, obligations
and liabilities of Mortgagor (the "OBLIGATIONS") under or pursuant to
the provisions of the Senior Secured Credit Agreement, the Notes, the
Loans, this Mortgage, the Guarantee, any other document securing
payment of the Indebtedness (the "SECURITY DOCUMENTS") and any
amendments, supplements, extensions, renewals, restatements,
replacements or modifications of any of the foregoing (the Senior
Secured Credit Agreement, the Notes, the Loans, the Letters of Credit,
this Mortgage, the Guarantee and all other documents and instruments
from time to time evidencing, securing or guaranteeing the payment of
the Indebtedness or the performance of the Obligations, as any of the
same may be
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amended, supplemented, extended, renewed, restated, replaced or
modified from time to time, are collectively referred to as the "LOAN
DOCUMENTS");
The Indebtedness includes Revolving Loans and Swing Line Loans
under which monies may be advanced by the Lenders, repaid by Mortgagor
and subsequently readvanced by the Lenders. All advances from time to
time made under such Loans and remaining outstanding will be secured by
this Mortgage, notwithstanding that there may be times when there are
no principal balances outstanding under such Loans.
MORTGAGOR HEREBY GRANTS TO MORTGAGEE A LIEN UPON AND A SECURITY INTEREST IN, AND
HEREBY MORTGAGES, CONVEYS, GRANTS, ASSIGNS, TRANSFERS AND SETS OVER TO
MORTGAGEE:
(A) the Real Estate;
(B) all the estate, right, title, claim or demand whatsoever
of Mortgagor, in possession or expectancy, in and to the Real Estate or
any part thereof;
(C) all right, title and interest of Mortgagor in, to and
under all easements, rights of way, gores of land, streets, ways,
alleys, passages, sewer rights, waters, water courses, water and
riparian rights, development rights, air rights, mineral rights and all
estates, rights, titles, interests, privileges, licenses, tenements,
hereditaments and appurtenances belonging, relating or appertaining to
the Real Estate, and any reversions, remainders, rents, issues, profits
and revenue thereof and all land lying in the bed of any street, road
or avenue, in front of or adjoining the Real Estate to the center line
thereof;
(D) all right, title and interest of Mortgagor in and to all
of the fixtures, chattels, business machines, machinery, apparatus,
equipment, furnishings, fittings and articles of personal property of
every kind and nature whatsoever, and all appurtenances and additions
thereto and substitutions or replacements thereof (together with, in
each case, attachments, components, parts and accessories) currently
owned or subsequently acquired by Mortgagor and now or subsequently
attached to, or contained in or used or usable in any way in connection
with any operation or letting of the Real Estate, including but without
limiting the generality of the foregoing, all screens, awnings, shades,
blinds, curtains, draperies, artwork, carpets, rugs, storm doors and
windows, furniture and furnishings, heating, electrical, and mechanical
equipment,
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lighting, switchboards, plumbing, ventilating, air conditioning and
air-cooling apparatus, refrigerating, and incinerating equipment,
escalators, elevators, loading and unloading equipment and systems,
stoves, ranges, laundry equipment, cleaning systems (including window
cleaning apparatus), telephones, communication systems (including
satellite dishes and antennae), televisions, computers, sprinkler
systems and other fire prevention and extinguishing apparatus and
materials, security systems, motors, engines, machinery, pipes, pumps,
tanks, conduits, appliances, fittings and fixtures of every kind and
description (all of the foregoing in this paragraph (D) being referred
to as the "EQUIPMENT");
(E) all right, title and interest of Mortgagor in and to all
substitutes and replacements of, and all additions and improvements to,
the Real Estate and the Equipment, subsequently acquired by or released
to Mortgagor or constructed, assembled or placed by Mortgagor on the
Real Estate, immediately upon such acquisition, release, construction,
assembling or placement, including, without limitation, any and all
building materials to be used by Mortgagor whether stored at the Real
Estate or offsite, and, in each such case, without any further
mortgage, conveyance, assignment or other act by Mortgagor;
(F) all right, title and interest of Mortgagor in, to and
under all leases, subleases, underlettings, concession agreements,
management agreements, licenses and other agreements relating to the
use or occupancy of the Real Estate or the Equipment or any part
thereof, now existing or subsequently entered into by Mortgagor and
whether written or oral and all guarantees of any of the foregoing
(collectively, as any of the foregoing may be amended, restated,
extended, renewed or modified from time to time, the "LEASES"), and all
rights of Mortgagor in respect of cash and securities deposited
thereunder and the right to receive and collect the revenues, income,
rents, issues and profits thereof, together with all other rents,
royalties, issues, profits, revenue, income and other benefits arising
from the use and enjoyment of the Mortgaged Property (as defined below)
(collectively, the "RENTS");
(G) all books and records relating to or used in connection
with the operation of the Real Estate or the Equipment or any part
thereof;
(H) all right, title and interest of Mortgagor, to the extent
assignable, in and to (i) all unearned premiums under insurance
policies now or subsequently obtained by Mortgagor relating to the Real
Estate or Equipment, (ii) any such insurance policies, (iii) all
proceeds of any such insurance policies (including
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title insurance policies) including the right to collect and receive
such proceeds, subject to the provisions relating to insurance
generally set forth below, and (iv) all awards and other compensation,
including the interest payable thereon and the right to collect and
receive the same, made to the present or any subsequent owner of the
Real Estate or Equipment for the taking by eminent domain, condemnation
or otherwise, of all or any part of the Real Estate or any easement or
other right therein, subject to the provisions relating to condemnation
awards generally set forth below;
(I) all right, title and interest of Mortgagor, to the extent
assignable, in and to (i) all contracts from time to time executed by
Mortgagor or any manager or agent on its behalf relating to the
ownership, construction, maintenance, repair, operation, occupancy,
sale or financing of the Real Estate or Equipment or any part thereof
and all agreements relating to the purchase or lease of any portion of
the Real Estate or any property which is adjacent or peripheral to the
Real Estate, together with the right to exercise such options
(collectively, the "CONTRACTS"), (ii) all consents, licenses, building
permits, certificates of occupancy and other governmental approvals
relating to construction, completion, occupancy, use or operation of
the Real Estate or any part thereof (collectively, the "PERMITS") and
(iii) all drawings, plans, specifications and similar or related items
relating to the Real Estate (collectively, the "PLANS");
(J) any and all monies now or subsequently on deposit for the
payment of real estate taxes or special assessments against the Real
Estate or for the payment of premiums on insurance policies covering
the foregoing property or otherwise on deposit with or held by
Mortgagee as provided in this Mortgage;
(K) all accounts and revenues arising from the operation of
the Improvements; and
(L) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now
owned or held or subsequently acquired by Mortgagor and described in the
foregoing clauses (A) through (E) are collectively referred to as the
"PREMISES", and those described in the foregoing clauses (A) through (L) are
collectively referred to as the "MORTGAGED PROPERTY").
TO HAVE AND TO HOLD the Mortgaged Property and the rights and
privileges hereby mortgaged unto Mortgagee, its successors and assigns for the
uses
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and purposes set forth, until the Indebtedness is fully paid and the Obligations
fully performed or as otherwise expressly provided in the Section of this
Mortgage entitled "Release of Mortgage".
Terms and Conditions
Mortgagor further represents, warrants, covenants and agrees
with Mortgagee as follows:
1. Warranty of Title. Mortgagor warrants that Mortgagor has
good title to the Real Estate in fee simple and good title to the rest of the
Mortgaged Property, subject only to the matters that are set forth in Schedule B
of the title insurance policy or policies being issued to Mortgagee to insure
the lien of this Mortgage and Liens expressly permitted under the Senior Secured
Credit Agreement (collectively, the "PERMITTED EXCEPTIONS") and Mortgagor shall
warrant, defend and preserve such title and the lien of the Mortgage thereon
against all claims of all persons and entities. Mortgagor further warrants that
it has the right to mortgage the Mortgage Property.
2. Payment of Indebtedness. Mortgagor shall pay the
Indebtedness at the times and places and in the manner specified in the Senior
Secured Credit Agreement and shall perform all the Obligations.
3. Requirements. (a) Mortgagor shall promptly comply with, or
cause to be complied with, and conform to all present and future laws, statutes,
codes, ordinances, orders, judgments, decrees, rules, regulations and
requirements, and irrespective of the nature of the work to be done, of each of
the United States of America, any State and any municipality, local government
or other political subdivision thereof and any agency, department, bureau,
board, commission or other instrumentality of any of them, now existing or
subsequently created (collectively, "GOVERNMENTAL AUTHORITY") which has
jurisdiction over the Mortgaged Property and all covenants, restrictions and
conditions now or later of record which may be applicable to any of the
Mortgaged Property, or to the use, manner of use, occupancy, possession,
operation, maintenance, alteration, repair or reconstruction of any of the
Mortgaged Property, except to the extent that failure to comply therewith, in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect. All present and future laws, statutes, codes, ordinances, orders,
judgments, decrees, rules, regulations and requirements of every Governmental
Authority applicable to Mortgagor or to any of the Mortgaged Property and all
covenants, restrictions, and conditions which now or later may be applicable to
any of the Mortgaged Property are collectively referred to as the "LEGAL
REQUIREMENTS".
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(b) From and after the date of this Mortgage, except as
expressly permitted under the Senior Secured Credit Agreement or herein,
Mortgagor shall not by act or omission permit, other than Permitted Exceptions,
any building or other improvement on any premises not subject to the lien of
this Mortgage to rely on the Premises or any part thereof or any interest
therein to fulfill any Legal Requirement, and Mortgagor hereby assigns to
Mortgagee any and all rights to give consent for all or any portion of the
Premises or any interest therein to be so used. Mortgagor shall not by act or
omission impair the integrity of any of the Real Estate as a single zoning lot
separate and apart from all other premises. Mortgagor represents that each
parcel of the Real Estate constitutes a legally subdivided lot, in compliance
with all subdivision laws and similar Legal Requirements, except to the extent
that failure to comply therewith, in the aggregate, would not reasonably be
expected to have a Material Adverse Effect. Any act or omission by Mortgagor
which would result in a violation of any of the provisions of this subsection
shall be void.
4. Payment of Taxes and Other Impositions. (a) Except as
expressly permitted under the Senior Secured Credit Agreement, Mortgagor, prior
to delinquency, shall pay and discharge all taxes of every kind and nature
(including, without limitation, all real and personal property, income,
franchise, withholding, transfer, gains, profits and gross receipts taxes), all
charges for any easement or agreement maintained for the benefit of any of the
Mortgaged Property, all general and special assessments, levies, permits,
inspection and license fees, all water and sewer rents and charges and all other
public charges even if unforeseen or extraordinary, imposed upon or assessed
against or which may become a lien on any of the Mortgaged Property, or arising
in respect of the occupancy, use or possession thereof, together with any
penalties or interest on any of the foregoing (all of the foregoing are
collectively referred to as the "IMPOSITIONS"). Mortgagor shall within 30 days
after the request of Mortgagee deliver to Mortgagee (i) original or copies of
receipted bills and cancelled checks or other evidence of payment of such
Imposition if it is a real estate tax or other public charge and (ii) evidence
acceptable to Mortgagee in its reasonable discretion showing the payment of any
other such Imposition. If by law any Imposition, at Mortgagor's option, may be
paid in installments (whether or not interest shall accrue on the unpaid balance
of such Imposition), Mortgagor may elect to pay such Imposition in such
installments and shall be responsible for the payment of such installments with
interest, if any.
(b) Nothing herein shall affect any right or remedy of
Mortgagee under this Mortgage or otherwise, without notice or demand to
Mortgagor, to pay any Imposition after the date such Imposition shall have
become delinquent, and to add to the Indebtedness the amount so paid, together
with interest from the time of payment at
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the rate of interest described in paragraph 4.1(c) of the Senior Secured Credit
Agreement (the "DEFAULT RATE"). Any sums paid by Mortgagee in discharge of any
Impositions shall be (i) a charge on the Premises secured hereby prior to any
right or title to, interest in, or claim upon the Premises subordinate to the
lien of this Mortgage, and (ii) payable on demand by Mortgagor to Mortgagee
together with interest at the Default Rate as set forth above.
(c) Mortgagor shall not claim, demand or be entitled to
receive any credit or credits toward the satisfaction of this Mortgage or on any
interest payable thereon for any taxes assessed against the Mortgaged Property
or any part thereof, and shall not claim any deduction from the taxable value of
the Mortgaged Property by reason of this Mortgage.
(d) Mortgagor shall have the right pursuant to subsection 7.3
of the Senior Secured Credit Agreement to contest in good faith to the amount or
validity of any Imposition by appropriate proceedings diligently conducted with
reserves in conformity with GAAP, provided that Mortgagor shall demonstrate to
Mortgagee's reasonable satisfaction that such proceedings shall operate
conclusively to prevent the sale of the Mortgaged Property, or any part thereof,
to satisfy such Imposition prior to final determination of such proceedings.
(e) Upon written notice to Mortgagor, Mortgagee during the
continuance of an Event of Default (as defined below) shall be entitled to
require Mortgagor to pay monthly in advance to Mortgagee the equivalent of
1/12th of the estimated annual Impositions. Mortgagee may commingle such funds
with its own funds but Mortgagor shall be entitled to interest thereon at a rate
mutually agreed upon by Mortgagor and Mortgagee.
5. Insurance. (a) Mortgagor shall maintain or cause to be
maintained on all of the Premises:
(i) property insurance against loss or damage by fire,
lightning, windstorm, tornado, water damage, flood, earthquake and by
such other further risks and hazards as now are or subsequently may be
covered by an "all risk" policy or a fire policy covering "special"
causes of loss (provided, however, that the maintenance of insurance
against earthquake, windstorm, flood and freeze risks shall be subject
to availability of such insurance coverage on commercially reasonable
terms). The policy shall include building ordinance law endorsements
and the policy limits shall be automatically reinstated after
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each loss (other than with respect to flood and earthquake coverage
which shall be reinstated on a commercially reasonable basis);
(ii) commercial general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language or similar language of such endorsement), covering all claims
for personal injury, bodily injury or death, or property damage,
subject to standard policy terms, conditions and exclusions, occurring
on, in or about the Premises in an amount not less than $10,000,000
combined single limit with respect to personal injury, bodily injury or
death, or property damage, relating to any one occurrence plus such
excess limits as Mortgagee shall reasonably request from time to time;
(iii) when and to the extent reasonably required by Mortgagee,
insurance against loss or damage by any other risk commonly insured
against by persons occupying or using like properties in the locality
or localities in which the Real Estate is situated;
(iv) during the course of any construction or repair of
Improvements, commercial general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language or similar language of such endorsement), (including coverage
for elevators and escalators, if any). The policy shall include
coverage for independent contractors and completed operations. The
completed operations coverage shall stay in effect for two years after
construction of any Improvements has been completed. The policy shall
provide coverage on an occurrence basis against claims for personal
injury, including, without limitation, bodily injury and death, and
property damage resulting from Mortgagor's negligence or other behavior
for which Mortgagor may be adjudged tortiously liable, subject to
standard policy terms, conditions and exclusions, occurring on, in or
about the Premises and the adjoining streets, sidewalks and
passageways, such insurance to afford immediate minimum protection to a
limit of not less than that reasonably required by Mortgagee with
respect to personal injury, bodily injury or death to any one or more
persons or damage to property;
(v) during the course of any construction or repair of the
Improvements, workers' compensation insurance (including employer's
liability insurance) for all employees of Mortgagor engaged on or with
respect to the Premises in such amounts no less than the limits
established by law or in the case of employer's liability insurance, no
less than $500,000, provided that Mortgagor may self-insure any or all
workers' compensation liabilities;
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(vi) during the course of any construction, addition,
alteration or repair of the Improvements, builder's risk completed
value property insurance form against "all risks of physical loss"
(subject to standard policy exclusions), including collapse, water
damage, flood and earthquake and transit coverage, during construction
or repairs of the Improvements, with deductible approved by Mortgagee
in its reasonable discretion, in reporting form, covering the total
replacement value of work performed and equipment, supplies and
materials furnished (with an appropriate limit for soft costs in the
case of construction); provided, however, that the maintenance of
insurance against earthquake and flood risks shall be subject to
availability of such insurance coverage on commercially reasonable
terms;
(vii) boiler and machinery property insurance covering
pressure vessels, air tanks, boilers, machinery, pressure piping,
heating, air conditioning and elevator equipment and escalator
equipment, provided the Improvements contain equipment of such nature,
in such amounts as are reasonably satisfactory to Mortgagee but not
less than the lesser of $1,000,000 or 10% of the value of the
Improvements;
(viii) if any portion of the Premises are located in an area
identified in the Federal Register as having special flood hazards by
the Secretary of Housing and Urban Development or other applicable
agency, flood insurance covering any parcel of the Mortgaged Property
which contains improvements in an amount satisfactory to Mortgagee in
its reasonable discretion, but in no event less than the maximum limit
of coverage available with respect to the particular type of property
under the National Flood Insurance Act of 1968, as amended and with a
term ending not later than the maturity of the Indebtedness and
Mortgagee shall receive confirmation that Mortgagor has received the
notice required pursuant to Section 208.8(e)(3) of Regulation H of the
Board of Governors of The Federal Reserve System; and
(ix) such other insurance in such amounts as Mortgagee may
reasonably request from time to time.
Each insurance policy (other than flood insurance written under the National
Flood Insurance Act of 1968, as amended, in which case to the extent available)
shall (i) provide that it shall not be cancelled, non-renewed or, in the case of
property and boiler and machinery insurance, materially amended without 30-days'
prior written notice to Mortgagee, (ii) with respect to all property insurance,
subject to availability on commercially reasonable terms, provide for
deductibles not to exceed $250,000,
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other than with respect to (a) flood, freeze, windstorm and earthquake perils
for which deductibles shall not exceed the greater of $500,000 or 5% of values
at risk per location involved in loss and (b) boiler and machinery coverage for
which deductibles shall not exceed the greater of $500,000 or five times 100% of
the daily time element value, contain a "Replacement Cost Endorsement" without
any deduction made for depreciation and with no co-insurance penalty (or
attaching an agreed amount endorsement satisfactory to Mortgagee in its
reasonable discretion), with loss payable solely to Mortgagee (modified, if
necessary and to the extent available under such policy, to provide that
proceeds in the amount of replacement cost may be retained by Mortgagee without
the obligation to rebuild) as its interest may appear, without contribution,
under a "standard" or "New York" mortgagee clause acceptable to Mortgagee in its
reasonable discretion and be written by insurance companies having an A.M. Best
Company, Inc. rating of A- or higher and a financial size category of not less
than VII, or otherwise as approved by Mortgagee in its reasonable discretion and
(iii) contain a "manuscript" endorsement providing that Mortgagor may not
unilaterally cancel such policy without Mortgagee's prior written consent.
Liability insurance policies shall name Mortgagee as an additional insured and
contain a waiver of subrogation against Mortgagee; all such policies shall
indemnify and hold Mortgagee harmless from all liability claims occurring on, in
or about the Premises and the adjoining streets, sidewalks and passageways,
subject to standard policy terms, conditions and exclusions. The amounts of each
insurance policy and the form of each such policy shall at all times be
satisfactory to Mortgagee in its reasonable discretion. Each policy shall
expressly provide that any proceeds which are payable to Mortgagee shall be paid
by check payable to the order of Mortgagee only and requiring the endorsement of
Mortgagee only. If any required insurance shall expire, be withdrawn, become
void by breach of any condition thereof by Mortgagor or by any lessee of any
part of the Mortgaged Property or become void or unsafe by reason of the failure
or impairment of the capital of any insurer, Mortgagor shall immediately obtain
new or additional insurance satisfactory to Mortgagee in its reasonable
discretion. Mortgagor shall not take out any separate or additional insurance
which is contributing in the event of loss unless it is properly endorsed and
otherwise satisfactory to Mortgagee in all respects in its reasonable
discretion.
(b) Mortgagor shall deliver to Mortgagee an original of each
insurance policy required to be maintained, or a certificate of such insurance
acceptable to Mortgagee in its reasonable discretion, together with a copy of
the declaration page for each such policy. Mortgagor shall (i) pay as they
become due all premiums for such insurance, (ii) not later than seven days prior
to the expiration of each policy to be furnished pursuant to the provisions of
this Section, deliver a renewed policy or policies, or certificates of insurance
acceptable to Mortgagee, in its reasonable
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discretion, or duplicate original or originals thereof. Upon the reasonable
request of Mortgagee, Mortgagor shall cause its insurance underwriter or broker
to certify to Mortgagee in writing that all the requirements of this Mortgage
governing insurance have been satisfied.
(c) If Mortgagor is in default of its obligations to insure or
deliver any such policy or policies, or certificates of insurance acceptable to
Mortgagee, in its reasonable discretion, then Mortgagee, at its option and
without notice, may effect such insurance from year to year, and pay the premium
or premiums therefor, and Mortgagor shall pay to Mortgagee on demand such
premium or premiums so paid by Mortgagee with interest from the time of payment
at the Default Rate and the same shall be deemed to be secured by this Mortgage
and shall be collectible in the same manner as the Indebtedness secured by this
Mortgage.
(d) Mortgagor shall increase the amount of property insurance
required to equal 100% replacement cost pursuant to the provisions of this
Section at the time of each renewal of each policy (but not later than 12 months
from the date of this Mortgage and each successive 12 month period to occur
thereafter) by using the ▇▇▇▇▇▇ & Swift Building Cost Index to determine whether
there shall have been an increase in the replacement value since the most recent
adjustment and, if there shall have been such an increase, the amount of
insurance required shall be adjusted accordingly.
(e) Mortgagor promptly shall in all material respects comply
with and conform to (i) all provisions of each such insurance policy, and (ii)
all requirements of the insurers applicable to Mortgagor or to any of the
Mortgaged Property or to the use, manner of use, occupancy, possession,
operation, maintenance, alteration or repair of any of the Mortgaged Property.
Mortgagor shall not use or permit the use of the Mortgaged Property in any
manner which would permit any insurer to cancel any insurance policy or void
coverage required to be maintained by this Mortgage.
(f) (i) If the Mortgaged Property, or any part thereof, shall
be destroyed or damaged by fire or any other casualty, whether insured
or uninsured, or in the event any claim is made against Mortgagor for
any personal injury, bodily injury or property damage incurred on or
about the Premises, Mortgagor shall promptly give notice thereof to
Mortgagee.
(ii) If the Mortgaged Property is damaged by fire or other
casualty and the cost to repair such damage is less than $1,000,000,
then provided that no
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Event of Default shall have occurred and be continuing, Mortgagor shall
have the right to adjust such loss, and the insurance proceeds relating
to such loss may be paid over to Mortgagor; provided that Mortgagor
shall, promptly after any such damage, repair such damage to the extent
required by subsection 7.5 of the Senior Secured Credit Agreement
regardless of whether any insurance proceeds have been received or
whether such proceeds, if received, are sufficient to pay for the costs
of repair.
(iii) If the Mortgaged Property is damaged by fire or other
casualty, and the cost to repair such damage exceeds the limit in
Section 5(f)(ii) above, or if an Event of Default shall have occurred
and be continuing, then Mortgagor authorizes and empowers Mortgagee, at
Mortgagee's option and in Mortgagee's reasonable discretion, as
attorney-in-fact for Mortgagor, to make proof of loss, to adjust and
compromise any claim under any insurance policy, to appear in and
prosecute any action arising from any policy, to collect and receive
insurance proceeds and to deduct therefrom Mortgagee's reasonable
expenses incurred in the collection process. Each insurance company
concerned is hereby authorized and directed to make payment for such
loss directly to Mortgagee. Mortgagee shall have the right to require
Mortgagor to repair or restore the Mortgaged Property to the extent
required by subsection 7.5 of the Senior Secured Credit Agreement, and
Mortgagor hereby designates Mortgagee as its attorney-in-fact for the
purpose of making any election required or permitted under any
insurance policy relating to such repair or restoration. The insurance
proceeds or any part thereof received by Mortgagee may be applied by
Mortgagee toward reimbursement of all reasonable costs and expenses of
Mortgagee in collecting such proceeds, and the balance, at Mortgagee's
option in its sole and absolute discretion, to the principal (to the
installments in inverse order of maturity, if payable in installments)
and interest due or to become due under the Notes, the Senior Secured
Credit Agreement or the other Loan Documents, to fulfill any other
Obligation of Mortgagor, to the restoration or repair of the property
damaged, or released to Mortgagor. Application by Mortgagee of any
insurance proceeds toward the last maturing installments of principal
and interest due or to become due on the Loans shall not excuse
Mortgagor from making any regularly scheduled payments due thereunder,
nor shall such application extend or reduce the amount of such
payments. In the event Mortgagee elects to release such proceeds to
Mortgagor, Mortgagor shall be obligated to use such proceeds to restore
or repair the Mortgaged Property to the extent required by subsection
7.5 of the Senior Secured Credit Agreement.
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(g) In the event of foreclosure of this Mortgage or other
transfer of title to the Mortgaged Property in lieu of such foreclosure, all
right, title and interest of Mortgagor in and to any insurance policies then in
force, to the extent assignable or transferable, shall pass to the purchaser or
grantee and Mortgagor hereby appoints Mortgagee its attorney-in-fact, in
Mortgagor's name, to assign and transfer all such policies and proceeds to such
purchaser or grantee.
(h) Upon written notice to Mortgagor, Mortgagee, during the
continuance of an Event of Default, shall be entitled to require Mortgagor to
pay monthly in advance to Mortgagee the equivalent of 1/12th of the estimated
annual premiums due on such insurance. Mortgagee may commingle such funds with
its own funds but Mortgagor shall be entitled to interest thereon at a rate
mutually agreed upon by Mortgagor and Mortgagee.
(i) Mortgagor may maintain insurance required under this
Mortgage by means of one or more blanket insurance policies maintained by
Mortgagor; provided, however, that (A) any such policy shall specify, or
Mortgagor shall furnish to Mortgagee a written statement from the insurer so
specifying, the maximum amount of the total insurance afforded by such blanket
policy that is allocated to the Premises and the other Mortgaged Property and
any sublimits and aggregates in such blanket policy applicable to the Premises
and the other Mortgaged Property, (B) each such blanket policy shall include an
endorsement providing that, in the event of a loss resulting from an insured
peril, insurance proceeds shall be allocated to the Mortgaged Property in an
amount equal to the coverages required to be maintained by Mortgagor as provided
above (subject to applicable sublimits and aggregates) and (C) the protection
afforded under any such blanket policy shall be no less than that which would
have been afforded under a separate policy or policies relating only to the
Mortgaged Property (subject to applicable sublimits and aggregates).
6. Restrictions on Liens and Encumbrances. Except for the lien
of this Mortgage and the Permitted Exceptions and except as otherwise permitted
pursuant to the terms of the Senior Secured Credit Agreement, Mortgagor shall
not further mortgage, nor otherwise encumber the Mortgaged Property nor create
or suffer to exist any lien, charge or encumbrance on the Mortgaged Property, or
any part thereof, whether superior or subordinate to the lien of this Mortgage
and whether recourse or non-recourse.
7. Due on Sale and Other Transfer Restrictions. Except as may
be otherwise expressly permitted under the Senior Secured Credit Agreement,
Mortgagor
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shall not sell, transfer, convey or assign all or any portion of, or any
interest in, the Mortgaged Property.
8. Maintenance; No Alteration; Inspection; Utilities. (a)
Mortgagor shall maintain or cause to be maintained all the Improvements in good
condition and repair and shall not commit or suffer any waste of the
Improvements. To the extent required under subsection 7.5 of the Senior Secured
Credit Agreement, Mortgagor shall repair, restore, replace or rebuild promptly
any part of the Premises which may be damaged or destroyed by any casualty
whatsoever to a condition substantially equivalent to its condition prior to the
damage or destruction. Except as permitted by the Senior Secured Credit
Agreement, the Improvements shall not be demolished or materially altered, nor
any material additions built, without the prior written consent of Mortgagee,
provided that Mortgagor may make alterations or additions without the consent of
Mortgagee that do not materially reduce the value of the Mortgaged Property.
(b) Mortgagee and any persons authorized by Mortgagee shall,
upon reasonable notice and at any reasonable time, have the right to enter and
inspect the Premises and the right to inspect all work done, labor performed and
materials furnished in and about the Improvements and the right to inspect and
make copies, to the extent reasonable, of all books, contracts and records of
Mortgagor relating to the Mortgaged Property.
(c) Except as permitted under subsection 7.3 of the Senior
Secured Credit Agreement, Mortgagor shall pay or cause to be paid prior to
delinquency, all utility charges which are incurred for gas, electricity, water
or sewer services furnished to the Premises and all other assessments or charges
of a similar nature, whether public or private, affecting the Premises or any
portion thereof, whether or not such assessments or charges are liens thereon.
9. Condemnation/Eminent Domain. Promptly upon obtaining
knowledge of the institution of any proceedings for the condemnation of the
Mortgaged Property, or any portion thereof, Mortgagor will notify Mortgagee of
the pendency of such proceedings. Mortgagor authorizes Mortgagee, at Mortgagee's
option and in Mortgagee's reasonable discretion, as attorney-in-fact for
Mortgagor, to commence, appear in and prosecute, in Mortgagee's or Mortgagor's
name, any action or proceeding relating to any condemnation of the Mortgaged
Property, or any portion thereof, and to settle or compromise any claim in
connection with such condemnation upon the occurrence and during the continuance
of an Event of Default. If Mortgagee elects not to participate in such
condemnation proceeding, then Mortgagor shall, at its
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expense, diligently prosecute any such proceeding and shall consult with
Mortgagee, its attorneys and experts and cooperate with them in any defense of
any such proceedings. All awards and proceeds of condemnation shall be applied
in the same manner as insurance proceeds, and to the extent such awards and
proceeds exceed $1,000,000 and no Event of Default shall have occurred and be
continuing, such awards and proceeds shall be assigned to Mortgagee to be
applied in the same manner as insurance proceeds, as provided above in
subsection 5(f)(iii) above, and Mortgagor agrees to execute any such assignments
of all such awards as Mortgagee may request.
10. Restoration. If Mortgagee elects or is required hereunder
to release funds to Mortgagor for restoration of any of the Mortgaged Property,
then such restoration shall be performed in accordance with such conditions as
Mortgagee shall impose in its reasonable discretion, and as are customarily
imposed by construction lenders.
11. Leases. (a) Mortgagor shall not (i) execute an assignment
or pledge of any Lease relating to all or any portion of the Mortgaged Property
other than in favor of Mortgagee, or (ii) without the prior written consent of
Mortgagee, which consent shall not be unreasonably withheld or delayed, execute
or permit to exist any Lease of any of the Mortgaged Property, except for
Permitted Exceptions and except as may be otherwise expressly permitted under
the Senior Secured Credit Agreement.
(b) As to any Lease consented to by Mortgagee under subsection
11(a) above, Mortgagor shall:
(i) promptly perform in all material respects all of the
provisions of the Lease on the part of the lessor thereunder to be
performed;
(ii) promptly enforce all of the material provisions of the
Lease on the part of the lessee thereunder to be performed;
(iii) appear in and defend any action or proceeding arising
under or in any manner connected with the Lease or the obligations of
Mortgagor as lessor or of the lessee thereunder;
(iv) exercise, within 5 business days after a reasonable
request by Mortgagee, any right to request from the lessee a
certificate with respect to the status thereof;
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(v) promptly deliver to Mortgagee copies of any notices of
default which Mortgagor may at any time forward to or receive from the
lessee;
(vi) promptly deliver to Mortgagee a fully executed
counterpart of the Lease; and
(vii) promptly deliver to Mortgagee, upon Mortgagee's
reasonable request, if permitted under such Lease, an assignment of the
Mortgagor's interest under such Lease.
(c) Mortgagor shall deliver to Mortgagee, within 10 business
days after a reasonable request by Mortgagee, a written statement, certified by
Mortgagor as being true, correct and complete, containing the names of all
lessees and other occupants of the Mortgaged Property, the terms of all Leases
and the spaces occupied and rentals payable thereunder, and a list of all Leases
which are then in default, including the nature and magnitude of the default;
such statement shall be accompanied by such other information as Mortgagee may
reasonably request.
(d) All Leases entered into by Mortgagor after the date
hereof, if any, and all rights of any lessees thereunder shall be subject and
subordinate in all respects to the lien and provisions of this Mortgage unless
Mortgagee shall otherwise elect in writing.
(e) In the event of the enforcement by Mortgagee of any remedy
under this Mortgage, the lessee under each Lease shall, if requested by
Mortgagee or any other person succeeding to the interest of Mortgagee as a
result of such enforcement, and if provided, at such lessee's request, with a
nondisturbance agreement from Mortgagee or such person, attorn to Mortgagee or
to such person and shall recognize Mortgagee or such successor in interest as
lessor under the Lease without change in the provisions thereof; provided
however, that Mortgagee or such successor in interest shall not be: (i) bound by
any payment of an installment of rent or additional rent which may have been
made more than 30 days before the due date of such installment; (ii) bound by
any amendment or modification to the Lease made without the consent of Mortgagee
or such successor in interest; (iii) liable for any previous act or omission of
Mortgagor (or its predecessors in interest); (iv) responsible for any monies
owing by Mortgagor to the credit of such lessee or subject to any credits,
offsets, claims, counterclaims, demands or defenses which the lessee may have
against Mortgagor (or its predecessors in interest); (v) bound by any covenant
to undertake or complete any construction of the Premises or any portion
thereof; or (vi) obligated to make any payment to such lessee other than any
security deposit actually delivered to Mortgagee
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or such successor in interest. Each lessee or other occupant, upon request by
Mortgagee or such successor in interest, shall execute and deliver an instrument
or instruments confirming such attornment. In addition, Mortgagor agrees that
each Lease entered into after the date of this Mortgage shall include language
to the effect of subsections (d)-(e) of this Section and language to the effect
that if any act or omission of Mortgagor would give any lessee under such Lease
the right, immediately or after lapse of a period of time, to cancel or
terminate such Lease, or to ▇▇▇▇▇ or offset against the payment of rent or to
claim a partial or total eviction, such lessee shall not exercise such right
until it has given written notice of such act or omission to Mortgagee and until
a reasonable period for remedying such act or omission shall have elapsed
following the giving of such notice without a remedy being effected; provided
that the provisions of such subsections shall be self-operative and any failure
of any Lease to include such language shall not impair the binding effect of
such provisions on any lessee under such Lease.
12. Further Assurances/Estoppel Certificates. To further
assure Mortgagee's rights under this Mortgage, Mortgagor agrees upon demand of
Mortgagee to do any act or execute any additional documents (including, but not
limited to, security agreements on any personalty included or to be included in
the Mortgaged Property and a separate assignment of each Lease in recordable
form) as may be reasonably required by Mortgagee to confirm the rights or
benefits conferred on Mortgagee by this Mortgage.
13. Mortgagee's Right to Perform. If Mortgagor fails to
perform any of the covenants or agreements of Mortgagor, Mortgagee, without
waiving or releasing Mortgagor from any obligation or default under this
Mortgage, may, at any time (but shall be under no obligation to) pay or perform
the same, and the amount or cost thereof, with interest at the Default Rate,
shall immediately be due from Mortgagor to Mortgagee and the same shall be
secured by this Mortgage and shall be an encumbrance on the Mortgaged Property
prior to any right, title to, interest in or claim upon the Mortgaged Property
attaching subsequent to the date of this Mortgage. No payment or advance of
money by Mortgagee under this Section shall be deemed or construed to cure
Mortgagor's default or waive any right or remedy of Mortgagee.
14. Events of Default. The occurrence of an Event of Default
under the Senior Secured Credit Agreement shall constitute an Event of Default
hereunder.
15. Remedies. (a) Upon the occurrence of any Event of Default,
in addition to any other rights and remedies Mortgagee may have pursuant to the
Loan Documents, or as provided by law, and without limitation, the Indebtedness
and all
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other amounts payable with respect to the Loans, the Letters of Credit, the
Senior Secured Credit Agreement, this Mortgage and the other Security Documents
shall become due and payable as provided in the Senior Secured Credit Agreement.
Except as expressly provided above in this Section, presentment, demand, protest
and all other notices of any kind are hereby expressly waived. In addition, upon
the occurrence of any Event of Default, Mortgagee may immediately take such
action, without notice or demand, as it deems advisable to protect and enforce
its rights against Mortgagor and in and to the Mortgaged Property, including,
but not limited to, the following actions, each of which may be pursued
concurrently or otherwise, at such time and in such manner as Mortgagee may
determine, in its sole discretion, without impairing or otherwise affecting the
other rights and remedies of Mortgagee:
(i) Mortgagee may, to the extent permitted by applicable law,
(A) institute and maintain an action of mortgage foreclosure against
all or any part of the Mortgaged Property, (B) institute and maintain
an action on the Notes, the Senior Secured Credit Agreement or the
other Security Documents, (C) sell all or part of the Mortgaged
Property (Mortgagor expressly granting to Mortgagee the power of sale,
as more fully described below), or (D) take such other action at law or
in equity for the enforcement of this Mortgage or any of the Loan
Documents as the law may allow. Mortgagee may proceed in any such
action to final judgment and execution thereon for all sums due
hereunder, together with interest thereon at the Default Rate and all
costs of suit, including, without limitation, reasonable attorneys'
fees and disbursements. Interest at the Default Rate shall be due on
any judgment obtained by Mortgagee from the date of judgment until
actual payment is made of the full amount of the judgment.
(ii) Without affecting any right, power or remedy herein given
to Mortgagee and in addition to every other right, power and remedy
herein specifically given or now or hereafter existing in equity, law
or statute, Mortgagor hereby grants to Mortgagee the non-judicial Power
of Sale. Such Power of Sale shall be exercised by giving Mortgagor
Notice of Intent to Foreclose by Power of Sale and setting forth, among
other things, the nature of the breach(es) or default(s) and the action
required to effect a cure thereof and the time period within which such
cure may be effected all in compliance with Title 46 Oklahoma Statutes
Sections 40 et. seq. (Oklahoma Power of Sale Mortgage Foreclosure
Act) as the same may be amended from time to time or other applicable
statutory or judicial authority (the "Act"). If no cure is effected
within the statutory time limits, Mortgagee may accelerate the
Indebtedness secured hereby without further notice (the aforementioned
statutory cure period shall run concurrently with any contractual
provision for notice before
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acceleration of debt) and may then proceed in the manner and subject to
the conditions of the Act to send to Mortgagor and other necessary
parties a Notice of Sale and to sell and convey the Mortgaged Property
in accordance with such Act. The sale shall be made at one or more
sales, as an entirety or in parcels upon such notice, at such times and
places, subject to all conditions and with the proceeds thereof to be
applied all as provided in the Act. No action of Mortgagee based upon
the provisions contained herein or in the Act, including, without
limitation, the giving of the Notice of Intent to Foreclose by Power of
Sale or the Notice of Sale, shall constitute an election of remedies
which would preclude Mortgagee from pursuing judicial foreclosure
before or at any time after commencement of the Power of Sale
foreclosure procedure. Whether or not proceedings have commenced by the
exercise of the Power of Sale above given, Mortgagee or the holder or
holders of any of the Indebtedness, in lieu of proceeding with the
Power of Sale (or in the event of homestead property where Mortgagor
has elected judicial foreclosure, as provided in the Act) may at its or
their option, as applicable, following acceleration of the Indebtedness
as set forth above, proceed by suit or suits in equity or at law to
foreclose this Mortgage. If Mortgagee institutes judicial proceedings
to foreclose this Mortgage, Mortgagor hereby waives or does not waive,
at the sole option of Mortgagee, appraisement of the Mortgaged
Property, said option to be exercised by Mortgagee at or prior to the
time judgment is rendered in such judicial foreclosure. Mortgagor fully
understands the consequences of conferring on Mortgagee the
above-described Power of Sale, and if Mortgagee elects to enforce this
Mortgage by exercising said Power of Sale, Mortgagor hereby expressly
waives to the fullest extent permitted by law any right to a judicial
hearing prior to the sale of the Mortgaged Property. As often as any
proceedings may be taken to foreclose this Mortgage, whether pursuant
to the Power of Sale herein conferred or by judicial proceedings, or to
foreclose the security interest herein granted to Mortgagee, Mortgagor
agrees to pay to Mortgagee, in addition to all other sums due, all
costs and expenses, including reasonable attorney fees, incurred by
Mortgagee.
(iii) Mortgagee may personally, or by its agents, attorneys
and employees and without regard to the adequacy or inadequacy of the
Mortgaged Property or any other collateral as security for the
Indebtedness and Obligations enter into and upon the Mortgaged Property
and each and every part thereof and exclude Mortgagor and its agents
and employees therefrom without liability for trespass, damage or
otherwise (Mortgagor hereby agreeing to surrender possession of the
Mortgaged Property to Mortgagee upon demand at any such time) and use,
operate, manage, maintain and control the Mortgaged Property
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and every part thereof. Following such entry and taking of possession,
Mortgagee shall be entitled, without limitation, (x) to lease all or
any part or parts of the Mortgaged Property for such periods of time
and upon such conditions as Mortgagee may, in its discretion, deem
proper, (y) to enforce, cancel or modify any Lease and (z) generally to
execute, do and perform any other act, deed, matter or thing concerning
the Mortgaged Property as Mortgagee shall deem appropriate as fully as
Mortgagor might do. In connection with Mortgagee's right to possession
of the Mortgaged Property as specified in this paragraph, Mortgagor
acknowledges that it has been advised that there is a significant body
of case law in Oklahoma which purportedly provides that in the absence
of a showing of waste of a character sufficient to endanger the value
of the Mortgaged Property, or other special factors, a mortgagor is
entitled to remain in possession of Mortgaged Property, and to enjoy
the income, rents and profits therefrom, during the pendency of
foreclosure proceedings and until the expiration of the redemption
period, even if the mortgage documents expressly provide to the
contrary. Mortgagor further acknowledges that it has been advised that
Mortgagee recognizes the value of the security covered hereby is
inextricably intertwined with the effectiveness of the management,
maintenance and general operation of the Mortgaged Property, and that
Mortgagee would not extend the Indebtedness secured hereby unless it
could be assured that it would have the right to take possession of the
Mortgaged Property in order to manage or to control management thereof,
and to enjoy the income, rents and profits therefrom, immediately upon
default by Mortgagor hereunder, notwithstanding that foreclosure
proceedings may not have been instituted, or are pending, or the
redemption period may not have expired. Accordingly, Mortgagor hereby
knowingly, intelligently and voluntarily waives all right to possession
of the Mortgaged Property from and after the occurrence of an Event of
Default hereunder, upon demand for possession by Mortgagee, and
Mortgagor agrees not to assert any objection or defense to Mortgagee's
request or petition to a court for possession. The rights hereby
conferred upon Mortgagee have been agreed upon prior to any default by
Mortgagor hereunder and the exercise by Mortgagee of any such rights
shall not be deemed to put Mortgagee in the status of a "mortgagee in
possession". Mortgagor acknowledges that this provision is material to
this transaction and that Mortgagee would not extend the Indebtedness
secured hereby but for this paragraph.
(b) The holder of this Mortgage, without regard to Mortgagee's
election of nonjudicial Power of Sale foreclosure or judicial foreclosure, shall
be entitled to the appointment of a receiver by any court of competent
jurisdiction. In case of a
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foreclosure sale, the Real Estate may be sold, at Mortgagee's election, in one
parcel or in more than one parcel and Mortgagee is specifically empowered,
(without being required to do so, and in its sole and absolute discretion) to
cause successive sales of portions of the Mortgaged Property to be held. In the
event of a judicial foreclosure, the court shall direct a sale of the Real
Estate either with or without appraisement, as Mortgagee may elect, said
election to be exercised at or prior to the time judgment is rendered.
(c) In the event of any breach of any of the covenants,
agreements, terms or conditions contained in this Mortgage, and notwithstanding
to the contrary any exculpatory or non-recourse language which may be contained
herein, Mortgagee shall be entitled to enjoin such breach and obtain specific
performance of any covenant, agreement, term or condition and Mortgagee shall
have the right to invoke any equitable right or remedy as though other remedies
were not provided for in this Mortgage.
(d) In case of foreclosure of this Mortgage or the exercise of
Power of Sale, and as often as any proceedings shall be instituted relating
thereto, Mortgagor will pay to Mortgagee a reasonable attorney's fee, together
with the cost of continuing the abstract of title to the Real Estate to the date
of filing such foreclosure, court costs and all other expenses incurred in
connection with such proceedings, all of which will be due and payable when suit
is filed and will be and become a part of the Indebtedness to be paid or
collected in such foreclosure.
16. Right of Mortgagee to Credit Sale. Upon the occurrence of
any sale made under this Mortgage, whether made under the power of sale or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale, Mortgagee may bid for and acquire the Mortgaged Property or any part
thereof. In lieu of paying cash therefor, Mortgagee may make settlement for the
purchase price by crediting upon the Indebtedness or other sums secured by this
Mortgage the net sales price after deducting therefrom the expenses of sale and
the cost of the action and any other sums which Mortgagee is authorized to
deduct under this Mortgage. In such event, this Mortgage, the Notes and other
instruments evidencing the Indebtedness and any and all documents evidencing
expenditures secured hereby may be presented to the person or persons conducting
the sale in order that the amount so used or applied may be credited upon the
Indebtedness as having been paid.
17. Appointment of Receiver. If any condition of this Mortgage
shall not have been satisfied or if any other Event of Default shall have
occurred and be continuing, Mortgagee, in any action to foreclose this Mortgage
(whether by judicial
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proceedings or in connection with any exercise of the Power of Sale), shall be
entitled as a matter of right and without notice to Mortgagor, unless otherwise
required by applicable law, and without regard to the adequacy or inadequacy of
the Mortgaged Property or any other collateral as security for the Indebtedness
and Obligations or the interest of Mortgagor therein, and without the proof
required by statute, and without regard to Mortgagee's election of nonjudicial
Power of Sale foreclosure or judicial foreclosure, shall have the right to the
appointment of a receiver or receivers or other manager of the Mortgaged
Property by any court of competent jurisdiction, without requiring the posting
of a surety bond and without reference to the adequacy or inadequacy of the
value of the Mortgaged Property or the solvency or insolvency of Mortgagor or
any other party obligated for payment of all or any part of the Indebtedness,
and whether or not waste has occurred with respect to the Mortgaged Property.
Mortgagor hereby irrevocably consents to such appointment and waives notice of
any application therefor (except as may be required by law). Any such receiver
or receivers shall have all the usual powers and duties of receivers in like or
similar cases and all the powers and duties of Mortgagee in case of entry as
provided in this Mortgage, including, without limitation and to the extent
permitted by law, the right to enter into leases of all or any part of the
Mortgaged Property, and shall continue as such and exercise all such powers
until the date of confirmation of sale of the Mortgaged Property unless such
receivership is sooner terminated.
18. Extension, Release, etc. (a) Without affecting the lien or
charge of this Mortgage upon any portion of the Mortgaged Property not then or
theretofore released as security for the full amount of the Indebtedness,
Mortgagee may, from time to time and without notice, agree to (i) release any
person liable for the Indebtedness, (ii) extend the maturity or alter any of the
terms of the Indebtedness or any guaranty thereof, (iii) grant other
indulgences, (iv) release or reconvey, or cause to be released or reconveyed at
any time at Mortgagee's option any parcel, portion or all of the Mortgaged
Property, (v) take or release any other or additional security for any
obligation herein mentioned, or (vi) make compositions or other arrangements
with debtors in relation thereto. If at any time this Mortgage shall secure less
than all of the principal amount of the Indebtedness, it is expressly agreed
that any repayments of the principal amount of the Indebtedness shall not reduce
the amount of the encumbrance of this Mortgage until the encumbrance amount
shall equal the principal amount of the Indebtedness outstanding.
(b) No recovery of any judgment by Mortgagee and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of Mortgagor shall affect the encumbrance of this Mortgage or any
liens, rights,
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powers or remedies of Mortgagee hereunder, and such liens, rights, powers and
remedies shall continue unimpaired.
(c) If Mortgagee shall have the right to foreclose this
Mortgage or exercise the Power of Sale, Mortgagor authorizes Mortgagee at its
option to foreclose the lien of this Mortgage or exercise the Power of Sale
subject to the rights of any tenants of the Mortgaged Property. The failure to
make any such tenants parties defendant to any such foreclosure proceeding and
to foreclose their rights or exercise the Power of Sale will not be asserted by
Mortgagor as a defense to any proceeding instituted by Mortgagee to collect the
Indebtedness, to foreclose the lien of this Mortgage or to exercise the Power of
Sale.
(d) Unless expressly provided otherwise, in the event that
ownership of this Mortgage and title to the Mortgaged Property or any estate
therein shall become vested in the same person or entity, this Mortgage shall
not merge in such title but shall continue as a valid lien on the Mortgaged
Property for the amount secured hereby.
19. Security Agreement under Uniform Commercial Code. (a) It
is the intention of the parties hereto that this Mortgage shall constitute a
Security Agreement within the meaning of the Uniform Commercial Code (the
"CODE") of the State of Oklahoma (being Title 12A Section 1-101 et seq.). If an
Event of Default shall occur under this Mortgage, then in addition to having any
other right or remedy available at law or in equity, Mortgagee shall have the
option of either (i) proceeding under the Code and exercising such rights and
remedies as may be provided to a secured party by the Code with respect to all
or any portion of the Mortgaged Property which is personal property (including,
without limitation, taking possession of and selling such property) or (ii)
treating such property as real property and proceeding with respect to both the
real and personal property constituting the Mortgaged Property in accordance
with Mortgagee's rights, powers and remedies with respect to the real property
(in which event the default provisions of the Code shall not apply). If
Mortgagee shall elect to proceed under the Code, then ten days' notice of sale
of the personal property shall be deemed reasonable notice and the reasonable
expenses of retaking, holding, preparing for sale, selling and the like incurred
by Mortgagee shall include, but not be limited to, reasonable attorneys' fees
and legal expenses. At its option, Mortgagee may proceed solely or separately
against the Mortgaged Property or any part thereof upon any default and will be
entitled to exercise any or all of the rights and remedies accorded a secured
party by the Code including, but not limited to, the right to require Mortgagor,
upon demand by Mortgagee, to assemble the Mortgaged Property and make the same
available to Mortgagee at a place convenient to both parties. Any reasonable
attorney's fees and legal expenses incurred by Mortgagee in taking any such
action will be
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considered part of the reasonable expenses of retaking, holding, preparing for
sale and reselling the Mortgaged Property within the meaning of the Code.
(b) Mortgagor and Mortgagee agree, to the extent permitted by
law, that: (i) some or all of the goods described within the definition of the
word "Equipment" are or are to become fixtures on the Real Estate; (ii) this
Mortgage upon recording or registration in the real estate records of the proper
office shall constitute a financing statement filed as a "fixture filing" within
the meaning of Sections 9-313 and 9-402 of the Code; (iii) Mortgagor is the
record owner of the Real Estate; and (iv) the mailing addresses of Mortgagor and
Mortgagee are as set forth on the first page of this Mortgage. In addition, for
purposes of Article 9 of the Oklahoma Uniform Commercial Code, (i) Mortgagor is
the "debtor", (ii) Mortgagee is the "secured party" and (iii) information
concerning the security interest created hereby may be obtained from Mortgagee
at its address on the first page of this Mortgage.
(c) Mortgagor, upon request by Mortgagee from time to time,
shall execute, acknowledge and deliver to Mortgagee one or more separate
security agreements, in form satisfactory to Mortgagee in its reasonable
discretion, covering all or any part of the Mortgaged Property and will further
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, any financing statement, affidavit, continuation statement or
certificate or other document as Mortgagee may request in order to perfect,
preserve, maintain, continue or extend the security interest under and the
priority of this Mortgage and such security instrument. Mortgagor further agrees
to pay to Mortgagee on demand all reasonable costs and expenses incurred by
Mortgagee in connection with the preparation, execution, recording, filing and
re-filing of any such document and all reasonable costs and expenses of any
record searches for financing statements Mortgagee shall reasonably require. If
Mortgagor shall fail to furnish any financing or continuation statement within
10 days after request by Mortgagee, then pursuant to the provisions of the Code,
Mortgagor hereby authorizes Mortgagee, without the signature of Mortgagor, to
execute and file any such financing and continuation statements. The filing of
any financing or continuation statements in the records relating to personal
property or chattels shall not be construed as in any way impairing the right of
Mortgagee to proceed against any personal property encumbered by this Mortgage
as real property, as set forth above.
20. Assignment of Rents. Mortgagor hereby absolutely and
unconditionally assigns, transfers, conveys and sets over to Mortgagee, the
Rents as further security for the payment of the Indebtedness and performance of
the Obligations, and Mortgagor grants to Mortgagee the right to enter the
Mortgaged Property for the purpose of collecting the same and to let the
Mortgaged Property or
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any part thereof and to apply the Rents on account of the Indebtedness. The
foregoing assignment and grant is present and absolute and shall continue in
effect until the Indebtedness is paid in full, but Mortgagee hereby waives the
right to enter the Mortgaged Property for the purpose of collecting the Rents,
letting the Mortgaged Property or any part thereof or applying the Rents and
Mortgagor shall be entitled to collect, receive, use and retain the Rents until
the occurrence of an Event of Default under this Mortgage; such right of
Mortgagor to collect, receive, use and retain the Rents may be revoked by
Mortgagee upon the occurrence of any Event of Default under this Mortgage by
giving not less than five days' written notice of such revocation to Mortgagor;
in the event such notice is given, Mortgagor shall pay over to Mortgagee, or to
any receiver appointed to collect the Rents, any lease security deposits, and
shall pay monthly in advance to Mortgagee, or to any such receiver, the fair and
reasonable rental value as determined by Mortgagee for the use and occupancy of
the Mortgaged Property or of such part thereof as may be in the possession of
Mortgagor or any affiliate of Mortgagor, and upon default in any such payment
Mortgagor and any such affiliate will vacate and surrender the possession of the
Mortgaged Property to Mortgagee or to such receiver, and in default thereof may
be evicted by summary proceedings or otherwise. Mortgagor shall not accept
prepayments of installments of Rent to become due for a period of more than one
month in advance (except for security deposits and estimated payments of
percentage rent, if any).
21. Trust Funds. All lease security deposits of the Real
Estate shall be treated as trust funds not to be commingled with any other funds
of Mortgagor. Within 10 days after request by Mortgagee, Mortgagor shall furnish
Mortgagee satisfactory evidence of compliance with this subsection, together
with a statement of all lease security deposits by lessees and copies of all
Leases not previously delivered to Mortgagee under which such security deposits
are held, which statement shall be certified by Mortgagor.
22. Additional Rights. The holder of any subordinate lien or
subordinate mortgage on the Mortgaged Property shall have no right to terminate
any Lease whether or not such Lease is subordinate to this Mortgage nor shall
any holder of any subordinate lien or subordinate mortgage join any tenant under
any Lease in any action to foreclose the lien or modify, interfere with, disturb
or terminate the rights of any tenant under any Lease. By recordation of this
Mortgage all subordinate lienholders under subordinate mortgages are subject to
and notified of this provision, and any action taken by any such lienholder or
mortgagee contrary to this provision shall be null and void. Upon the occurrence
of any Event of Default, Mortgagee may, in its sole discretion and without
regard to the adequacy of its security under this
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Mortgage, apply all or any part of any amounts on deposit with Mortgagee under
this Mortgage against all or any part of the Indebtedness. Any such application
shall not be construed to cure or waive any Default or Event of Default or
invalidate any act taken by Mortgagee on account of such Default or Event of
Default.
23. Changes in Method of Taxation. In the event of the passage
after the date hereof of any law of any Governmental Authority deducting from
the value of the Premises for the purposes of taxation any lien or mortgage
thereon, or changing in any way the laws for the taxation of mortgages or deeds
of trust or debts secured thereby for federal, state or local purposes, or the
manner of collection of any such taxes, and imposing a tax, either directly or
indirectly, on mortgages or deeds of trust or debts secured thereby, the holder
of this Mortgage shall have the right to declare the Indebtedness due on a date
to be specified by not less than 30 days' written notice to be given to
Mortgagor unless within such 30-day period Mortgagor shall assume as an
Obligation hereunder the payment of any tax so imposed until full payment of the
Indebtedness and such assumption shall be permitted by law.
24. Notices. All notices, requests, demands and other
communications hereunder shall be deemed to have been sufficiently given or
served when served in the same manner as set forth for notices in the Senior
Secured Credit Agreement.
25. No Oral Modification. This Mortgage may not be changed or
terminated orally. Any agreement made by Mortgagor and Mortgagee after the date
of this Mortgage relating to this Mortgage shall be superior to the rights of
the holder of any intervening or subordinate mortgage, lien or encumbrance.
26. Partial Invalidity. In the event any one or more of the
provisions contained in this Mortgage shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, but each shall be
construed as if such invalid, illegal or unenforceable provision had never been
included. Notwithstanding to the contrary anything contained in this Mortgage or
in any provisions of the Indebtedness or Loan Documents, the obligations of
Mortgagor and of any other obligor under the Indebtedness or Loan Documents
shall be subject to the limitation that Mortgagee shall not charge, take or
receive, nor shall Mortgagor or any other obligor be obligated to pay to
Mortgagee, any amounts constituting interest in excess of the maximum rate
permitted by law to be charged by Mortgagee.
27. Mortgagor's Waiver of Rights. To the fullest extent
permitted by law, Mortgagor waives the benefit of all laws now existing or that
may subsequently be
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enacted providing for (i) any appraisement before sale of any portion of the
Mortgaged Property, (ii) any extension of the time for the enforcement of the
collection of the Indebtedness or the creation or extension of a period of
redemption from any sale made in collecting such debt and (iii) exemption of the
Mortgaged Property from attachment, levy or sale under execution or exemption
from civil process. To the full extent Mortgagor may do so, Mortgagor agrees
that Mortgagor will not at any time insist upon, plead, claim or take the
benefit or advantage of any law now or hereafter in force providing for any
appraisement, valuation, stay, exemption, extension or redemption, or requiring
foreclosure of this Mortgage before exercising any other remedy granted
hereunder and Mortgagor, for Mortgagor and its successors and assigns, and for
any and all persons ever claiming any interest in the Mortgaged Property, to the
extent permitted by law, hereby waives and releases all rights of redemption,
valuation, appraisement, stay of execution, notice of election to mature or
declare due the whole of the secured indebtedness and marshalling in the event
of foreclosure of the liens hereby created.
28. Remedies Not Exclusive. Mortgagee shall be entitled to
enforce payment of the Indebtedness and performance of the Obligations and to
exercise all rights and powers under this Mortgage or under any of the other
Loan Documents or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Indebtedness and Obligations may now or
hereafter be otherwise secured, whether by deed of trust, mortgage, security
agreement, pledge, lien, assignment or otherwise. Neither the acceptance of this
Mortgage nor its enforcement, shall prejudice or in any manner affect
Mortgagee's right to realize upon or enforce any other security now or hereafter
held by Mortgagee, it being agreed that Mortgagee shall be entitled to enforce
this Mortgage and any other security now or hereafter held by Mortgagee in such
order and manner as Mortgagee may determine in its absolute discretion. No
remedy herein conferred upon or reserved to Mortgagee is intended to be
exclusive of any other remedy herein or by law provided or permitted, but each
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. Every
power or remedy given by any of the Loan Documents to Mortgagee or to which
either may otherwise be entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed expedient by
Mortgagee. In no event shall Mortgagee, in the exercise of the remedies provided
in this Mortgage (including, without limitation, in connection with the
assignment of Rents, or the appointment of a receiver and the entry of such
receiver on to all or any part of the Mortgaged Property), be deemed a
"mortgagee in possession," and Mortgagee shall not in any way be made liable for
any act, either of commission or omission, in connection with the exercise of
such remedies.
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29. Multiple Security. If (a) the Premises shall consist of
one or more parcels, whether or not contiguous and whether or not located in the
same county, or (b) in addition to this Mortgage, Mortgagee shall now or
hereafter hold or be the mortgagee of one or more additional mortgages, liens,
deeds of trust or other security (directly or indirectly) for the Indebtedness
upon other property in the State in which the Premises are located (whether or
not such property is owned by Mortgagor or by others) or (c) both the
circumstances described in clauses (a) and (b) shall be true, then to the
fullest extent permitted by law, Mortgagee may, at its election, commence or
consolidate in a single foreclosure action all foreclosure proceedings against
all such collateral securing the Indebtedness (including the Mortgaged
Property), which action ("foreclosure", "foreclosure action", "foreclosure
proceeding" all include, for purposes of this Section, the exercise of Power of
Sale granted in this Mortgage) may be brought or consolidated in the courts of,
or sale conducted in, any county in which any of such collateral is located.
Mortgagor acknowledges that the right to maintain a consolidated foreclosure
action is a specific inducement to Mortgagee to extend the Indebtedness, and
Mortgagor expressly and irrevocably waives any objections to the commencement or
consolidation of the foreclosure proceedings in a single action and any
objections to the laying of venue or based on the grounds of forum non
conveniens which it may now or hereafter have. Mortgagor further agrees that if
Mortgagee shall be prosecuting one or more foreclosure or other proceedings
against a portion of the Mortgaged Property or against any collateral other than
the Mortgaged Property, which collateral directly or indirectly secures the
Indebtedness, or if Mortgagee shall have obtained a judgment of foreclosure or
similar judgment against such collateral, then, whether or not such proceedings
are being maintained or judgments were obtained in or outside the State in which
the Premises are located, Mortgagee may commence or continue any foreclosure
proceedings and exercise its other remedies granted in this Mortgage against all
or any part of the Mortgaged Property and Mortgagor waives any objections to the
commencement or continuation of a foreclosure of this Mortgage or exercise of
any other remedies hereunder based on such other proceedings or judgments, and
waives any right to seek to dismiss, stay, remove, transfer or consolidate
either any action under this Mortgage or such other proceedings on such basis.
Neither the commencement nor continuation of proceedings to foreclose this
Mortgage nor the exercise of any other rights hereunder nor the recovery of any
judgment by Mortgagee in any such proceedings shall prejudice, limit or preclude
Mortgagee's right to commence or continue one or more foreclosure or other
proceedings or obtain a judgment against any other collateral (either in or
outside the State in which the Real Estate is located) which directly or
indirectly secures the Indebtedness, and Mortgagor expressly waives any
objections to the commencement of, continuation of, or entry of a judgment in
such other proceedings or exercise of any remedies in such proceedings based
upon any action or judgment connected to this Mortgage, and Mortgagor also
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waives any right to seek to dismiss, stay, remove, transfer or consolidate
either such other proceedings or any sale or action under this Mortgage on such
basis. It is expressly understood and agreed that to the fullest extent
permitted by law, Mortgagee may, at its election, cause the sale of all
collateral which is the subject of a single foreclosure action at either a
single sale or at multiple sales conducted simultaneously and take such other
measures as are appropriate in order to effect the agreement of the parties to
dispose of and administer all collateral securing the Indebtedness (directly or
indirectly) in the most economical and least time-consuming manner.
30. Successors and Assigns. All covenants of Mortgagor
contained in this Mortgage are imposed solely and exclusively for the benefit of
Mortgagee and its respective successors and assigns, and no other person or
entity shall have standing to require compliance with such covenants or be
deemed, under any circumstances, to be a beneficiary of such covenants, any or
all of which may be freely waived in whole or in part by Mortgagee at any time
if in its sole discretion such waiver is deemed advisable. All such covenants of
Mortgagor shall run with the land and bind Mortgagor, the successors and assigns
of Mortgagor (and each of them) and all subsequent owners, encumbrancers and
tenants of the Mortgaged Property, and shall inure to the benefit of Mortgagee
and its respective successors and assigns. The word "Mortgagor" shall be
construed as if it read "Mortgagors" whenever the sense of this Mortgage so
requires and if there shall be more than one Mortgagor, the obligations of the
Mortgagors shall be joint and several.
31. No Waivers, etc. Any failure by Mortgagee to insist upon
the strict performance by Mortgagor of any of the terms and provisions of this
Mortgage shall not be deemed to be a waiver of any of the terms and provisions
hereof, and Mortgagee, notwithstanding any such failure, shall have the right
thereafter to insist upon the strict performance by Mortgagor of any and all of
the terms and provisions of this Mortgage to be performed by Mortgagor.
Mortgagee may release, regardless of consideration and without the necessity for
any notice to or consent by the mortgagee of any subordinate mortgage or the
holder of any subordinate lien on the Mortgaged Property, any part of the
security held for the obligations secured by this Mortgage without, as to the
remainder of the security, in anywise impairing or affecting the lien of this
Mortgage or the priority of such lien over any subordinate lien or mortgage.
32. Governing Law, etc. This Mortgage shall be governed by and
construed in accordance with the laws of the State in which the Premises are
located, except that Mortgagor expressly acknowledges that by its terms the
Senior Secured Credit Agreement shall be governed and construed in accordance
with the laws of the State of New York, without regard to principles of conflict
of law, and for purposes of
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consistency, Mortgagor agrees that in any in personam proceeding related to this
Mortgage the rights of the parties to this Mortgage shall also be governed by
and construed in accordance with the laws of the State of New York governing
contracts made and to be performed in that State, without regard to principles
of conflict of law.
33. Waiver of Trial by Jury. Mortgagor and Mortgagee each
hereby irrevocably and unconditionally waive trial by jury in any action, claim,
suit or proceeding relating to this Mortgage and for any counterclaim brought
therein.
34. Certain Definitions. Unless the context clearly indicates
a contrary intent or unless otherwise specifically provided herein, words used
in this Mortgage shall be used interchangeably in singular or plural form and
the word "Mortgagor" shall mean "each Mortgagor or any subsequent owner or
owners of the Mortgaged Property or any part thereof or interest therein," the
word "Mortgagee" shall mean "Mortgagee or any successor Administrative Agent,"
the word "Notes" shall mean "the notes that may from time to time be given
pursuant to the terms of the Senior Secured Credit Agreement or any other
evidence of indebtedness secured by this Mortgage," the word "person" shall
include any individual, corporation, partnership, trust, unincorporated
association, government, governmental authority, or other entity, and the words
"Mortgaged Property" shall include any portion of the Mortgaged Property or
interest therein. 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. The
captions in this Mortgage are for convenience or reference only and in no way
limit or amplify the provisions hereof.
35. Release of Mortgage. Upon payment in full of the
Indebtedness, the termination of all Commitments under the Senior Secured Credit
Agreement secured hereby and the compliance with the Obligations then required
to be complied with, Mortgagee shall release the encumbrance of this Mortgage.
If any of the Mortgaged Property shall be sold, transferred or otherwise
disposed of by Mortgagor in a transaction expressly permitted by the Senior
Secured Credit Agreement, then Mortgagee shall execute and deliver (at the sole
cost and expense of Mortgagor) all partial releases or other documents
reasonably necessary or desirable for the release of such Mortgaged Property
from the encumbrance of this Mortgage.
36. Conflict With Senior Secured Credit Agreement. In the
event of any conflict or inconsistency between the terms and provisions of this
Mortgage and the terms and provisions of the Senior Secured Credit Agreement,
the terms and provisions of the Senior Secured Credit Agreement shall govern,
other than with respect to the
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Section of this Mortgage captioned "Governing Law, etc.". By their execution of
the Senior Secured Credit Agreement, each Lender hereby agrees that it shall not
have the right to institute any suit for enforcement of Notes or any other
Indebtedness secured by this Mortgage or any other Security Document, if and to
the extent that the institution or prosecution thereof or the entry of judgment
therein would, under applicable law, result in the surrender, impairment, waiver
or loss of the Lien of this Mortgage or any other Security Document or impede or
delay the enforcement of the Lien of this Mortgage or any other Security
Document.
37. Receipt of Copy. Mortgagor acknowledges that it has
received a true copy of this Mortgage.
38. Counterparts. This Mortgage maybe executed in any number
of counterparts, each of which shall for all purposes be deemed to be an
original, and all of which are identical except that, to facilitate recordation,
in any particular counterpart there may be omitted those portions of Schedule A
which describe properties situated in counties other than the country in which
such counterpart is to be recorded.
NOTICE: A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY
ALLOW THE MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO
COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE MORTGAGOR UNDER THIS MORTGAGE.
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This Mortgage has been duly executed by Mortgagor as of the
date first above written.
EV INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. VANDEN BEUKEL
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. Vanden Beukel
Title: Vice President, Secretary and
Treasurer
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State of New York )
: ss.:
County of New York )
This instrument was acknowledged before me this 10th day of
February, 1997, by K. Vanden Beukel, Vice President, Secretary and Treasurer of
EV INTERNATIONAL, INC., a Delaware corporation, on behalf of the corporation.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Notary Public
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
My commission expires:
June 3, 1998
-----------------------
[SEAL] ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public, State of New York
No. ▇▇-▇▇▇▇▇▇▇
Qualified in New York County
Commission Expires June 3, 1998
37
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Canadian County
Schedule A
Legal Description
TRACT I:
A parcel of land being a part of Government ▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇, ▇ 11 N, R 5 W, I.M., Canadian County, Oklahoma, said parcel
being more particularly described as follows:
Starting in the Northwest Corner of Lot 4, also being the Northwest
Corner of Section 2, T 11 N, R 5 W, I.M., Canadian County, Oklahoma (same being
at the intersection of Reno Avenue and ▇▇▇▇ Road);
thence S 0(degree)16'56" W along the West line of said Section 2 (▇▇▇▇ Road)
for a distance of 561.75 feet;
thence S 89(degree)56'42" E on a line parallel with the North line of said
Section 2 a distance of 241.33 feet to the point of beginning;
thence S 89(degree)56'42" E a distance of 272.87 feet;
thence S 0(degree)16'56" W a distance of 120 feet;
thence N 89(degree)56'42" W a distance of 272.87 feet;
thence N 0(degree)16'56" E a distance of 120 feet to the point of beginning.
38
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Canadian County
TRACT II:
A parcel or tract of land being part of Government Lot 4 in
the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇ ▇▇▇▇ ▇▇▇ of the I.M. in Canadian County,
Oklahoma. Said tract being more particularly described as follows:
Starting at the Northwest corner of government Lot 4 also
being the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇, ▇▇▇▇ ▇▇▇ of the I.M. Canadian
County. Okla. (Same point being the intersection of ▇▇▇▇ Road and Reno
Ave.) Thence S 0(degree) - 16'-56" W along the west line of said Sec 2
a distance of 561.75 ft.; thence S 89(degree) - 56'-42" E along a line
parallel to the North line of said Sec 2 a distance of 241.33 feet to
the point or place of beginning. Thence S 0(degree)-16'-56" W a
distance of 120.00 ft.; Thence S 89(degree)-56' 42" E a distance of
272.87 feet; Thence S 0(degree)-16'-56" W a distance of 210.0 ft.;
Thence N 89(degree) -56'-42" W a distance of 514.20 ft.; Thence N
0(degree)-16'-56" E a distance of 330.0 ft.; Thence S
89(degree)-56'-46" E a distance of 241.33 ft. more or less to the point
or place of beginning, containing 3.14 acres more or less.
LESS AND EXCEPT that property conveyed to the State of Oklahoma under the
Warranty Deed recorded at Book 402, page 272.
2
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▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Canadian County
TRACT III:
BEGINNING at the Northwest corner (NW/C) of Section Two (2),
Township Eleven (11) North, Range Five (5) West of the Indian Meridian,
Canadian County, Oklahoma; THENCE South 89(degree) 56' 42" East,
1,325.41 feet to a point; THENCE South 00(degree) 25' 19" West,
1,293.19 feet to a point; THENCE Northwesterly on a curve to the right
having a radius of 10,552.96 feet for a distance of 1,194.72 feet to a
point; THENCE North 08(degree) 32' 51" West, 236.50 feet to a point;
THENCE South 89(degree) 56' 42" East, 411.18 feet to a point; THENCE
North 00(degree) 16' 56" East, 330.00 feet to a point; THENCE North
89(degree) 56' 42" West, 462.41 feet to a point; THENCE North
08(degree) 32' 51" West, 11.68 feet to a point; THENCE North 89(degree)
43' 04" West, 50.00 feet to a point on the West line of said Section
Two (2); THENCE North 00(degree) 16' 57" East, 550.00 to the POINT OF
THE BEGINNING,
3