Exhibit 10.7
[Form of Mortgage]
Recording requested by:
[NAME OF TITLE INSURANCE COMPANY]
This Mortgage was prepared by and
when recorded should be mailed to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------
Space above this line for recorder's use
[AMENDED AND RESTATED]/1 /
MORTGAGE, ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING
KNOW ALL PERSONS BY THESE PRESENTS:
THIS [AMENDED AND RESTATED]/2/ MORTGAGE, ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING (this "Mortgage") is made as of the [__]th day of
[______], [____] by [__________], a corporation duly organized and validly
existing under the laws of the State of [__________] and having an office at
[___________] (the "Mortgagor"), in favor of JPMORGAN CHASE BANK, a New York
State banking corporation having its principal office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as collateral agent for the holders of the Secured
Obligations (as defined below) (in such capacity, together with its successors
in such capacity, the "Mortgagee"). All capitalized terms used herein without
being defined shall have the meanings assigned to such terms in the Credit
Agreements referred to below.
----------
/1/ INSERT BRACKETED LANGUAGE ONLY IF THIS IS AN AMENDED AND RESTATED MORTGAGE.
/2/ INSERT BRACKETED LANGUAGE ONLY IF THIS IS AN AMENDED AND RESTATED MORTGAGE.
Mortgage
--------
- 2 -
W I T N E S S E T H:
WHEREAS, Chart Industries, Inc., a Delaware corporation (the
"Borrower"), certain of its Subsidiaries as guarantors (the "Subsidiary
Guarantors"), the lenders party thereto and JPMorgan Chase Bank, as
administrative agent for such lenders, are parties to a Credit Agreement dated
as of April 12, 1999 (as heretofore amended, supplemented or otherwise modified,
the "1999 Credit Agreement") pursuant to which such lenders extended credit (by
means of making loans and the issuance of letters of credit) to or for account
of the Borrower and certain of its subsidiaries;
WHEREAS, on July 8, 2003 the Borrower and the Subsidiary Guarantors
filed a voluntary petition with the United States Bankruptcy Court for the
District of Delaware (the "Bankruptcy Court") initiating cases under chapter 11
of the Bankruptcy Code and continued in their possession of their respective
assets and in the management of their respective businesses pursuant to Sections
1107 and 1108 of the Bankruptcy Code.
[WHEREAS, the Mortgagor has secured all of its obligations under or in
respect of the 1999 Credit Agreement, including principal, interest, fees,
expenses, indemnities and reimbursement obligations, and certain other
obligations owing to the lenders party to the Credit Agreement (and their
affiliates), by granting in favor of the Mortgage as agent for certain parties
including such lenders and affiliates, a mortgage lien upon the properties
described herein pursuant to a Mortgage, Assignment of Rents, Security Agreement
and Fixture Filing dated as of [April 12, 1999] (as heretofore amended,
supplemented or otherwise modified, the "Existing Mortgage");]/3/
WHEREAS, the Borrower and the Subsidiary Guarantors party thereto
(each as debtor and debtor in possession under chapter 11 of the Bankruptcy
Code), the lenders party thereto and JPMorgan Chase Bank, as administrative
agent for such lenders are party to a Revolving Credit Agreement dated as of
July 17, 2003 (as heretofore amended, supplemented or otherwise modified, the
"DIP Credit Agreement"), providing for revolving credit loans and letters of
credit to the Borrower (including the continuation of the outstanding letters of
credit issued for account of the Borrower under the 1999 Credit Agreement) in an
aggregate principal or face amount not exceeding $40,000,000, and pursuant to an
order of the Bankruptcy Court all obligations of the Borrower and the Subsidiary
Guarantors in respect of the DIP Credit Agreement, including principal,
interest, fees, expenses, indemnities and reimbursement obligations, are secured
by a first-priority security interest in and lien upon their respective existing
and after-acquired personal and real property;
WHEREAS, the Borrower and the Subsidiary Guarantors have filed a plan
of reorganization with the Bankruptcy Court which has been confirmed by a final
order of the Bankruptcy Court entered on September 4, 2003 (as supplemented from
time to time, the
----------
/3/ INSERT BRACKETED RECITAL ONLY IF THIS IS AN AMENDED AND RESTATED MORTGAGE.
Mortgage
--------
- 3 -
"Reorganization Plan"). Pursuant to the Reorganization Plan, the Borrower and
the Subsidiary Guarantors [(including the Mortgagor)]/4/ (collectively, the
"Obligors") are concurrently herewith entering into: (a) an Amended and Restated
Revolving Credit Agreement dated as of September 15, 2003 (as from time to time
amended, restated, supplemented, deferred, renewed, extended, increased,
refunded, refinanced, replaced or otherwise modified, the "Revolving Credit
Agreement") with the lenders party to the DIP Credit Agreement as of the date
hereof (collectively, including any assignees thereof or new lenders from time
to time, the "Revolving Credit Lenders") and JPMorgan Chase Bank, as
administrative agent for such lenders (together with its successors in such
capacity, the "Revolving Credit Agent"), which will amend and restate the DIP
Credit Agreement and provide for revolving credit loans to, and letters of
credit for account of, the Borrower (and the continuation of the revolving
credit loans and letters of credit made, continued or issued under the DIP
Credit Agreement and the continuation of the letters of credit issued under the
1999 Credit Agreement for account of Chart Heat Exchangers Limited, in each case
outstanding on the date thereof ) in an aggregate principal or face amount not
exceeding $40,000,000; and (b) a Term Loan Agreement dated as of September 15,
2003 (as from time to time amended, restated, supplemented, deferred, renewed,
extended, increased, refunded, refinanced, replaced or otherwise modified, the
"Term Loan Agreement" and, together with the Revolving Credit Agreement, the
"Credit Agreements") with the lenders party to the 1999 Credit Agreement as of
the date hereof (collectively, including any assignees thereof or new lenders
from time to time, the "Term Lenders" and, together with the Revolving Credit
Lenders, the "Lenders") and JPMorgan Chase Bank, as administrative agent for
such lenders (together with its successors in such capacity, the "Term Loan
Agent" and, together with the Revolving Credit Agent, the "Agents"), pursuant to
which all outstanding obligations (including principal, accrued interest and
fees) of the Borrower and the Subsidiary Guarantors in respect of the 1999
Credit Agreement (other than the obligations in respect of the letters of credit
issued thereunder for account of the Borrower that were continued under the DIP
Credit Agreement and other than the obligations in respect of the letters of
credit originally issued by Bank One, NA under the 1999 Credit Agreement for
account of CHEL) shall be restructured into term loans held by such lenders in
an aggregate principal amount of $120,000,000;
[WHEREAS, pursuant to the Credit Agreements the Mortgagor has
unconditionally guaranteed the principal of and interest on, and all other
amounts from time to time owing under the Credit Agreements;]/5/
WHEREAS, the Borrower, the Revolving Credit Agent (on behalf of the
Revolving Credit Lenders) and the Term Loan Agent (on behalf of the Term
Lenders) are concurrently herewith entering into a Collateral Agency and
Intercreditor Agreement dated as of September 15, 2003 (as from time to time
amended, restated, supplemented, replaced or otherwise modified, the "Collateral
Agency and Intercreditor Agreement"), pursuant to which, among other things, the
Collateral Agent shall be appointed to act as collateral agent hereunder and
under the other Collateral Documents (as defined therein);
----------
/4/ INSERT BRACKETED PROVISIONS IF THE MORTGAGOR IS ONE OF THE SUBSIDIARY
GUARANTORS.
/5/ INSERT BRACKETED PROVISIONS IF THE MORTGAGOR IS ONE OF THE SUBSIDIARY
GUARANTORS.
Mortgage
--------
- 4 -
NOW, THEREFORE, to induce the lenders party to the Revolving Credit
Agreement to agree to the terms of the Revolving Credit Agreement and to extend
and continue credit thereunder, and to induce the lenders party to the Term Loan
Agreement to agree to the terms of the Term Loan Agreement and to restructure
the loans under the 1999 Credit Agreement as contemplated thereby, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and FOR THE PURPOSE OF SECURING the following (collectively, the
"Obligations"):
(a) the payment or performance of all obligations in respect of loans
and other extensions of credit (including in respect of letters of credit
issued or continued) under, and all other obligations of the
[Borrower/Mortgagor/6/] under, the Credit Agreements (including, without
limitation, principal, premium (if any), interest (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the [Borrower/Mortgagor/7/] whether or not a
claim for post-filing interest is allowed in such proceedings), fees,
charges, expenses, indemnities, reimbursement obligations, guarantees and
all other amounts payable thereunder or in respect thereof);
(b) the payment or performance of all obligations of any Obligor in
respect of overdrafts and related liabilities owed to any Lender party to
the Revolving Credit Agreement (or any affiliate thereof) that arise from
treasury, depositary or cash management services in connection with any
automated clearing house transfers of funds or any similar transactions;
[(c) the payment or performance of all obligations of the Mortgagor in
respect of its guarantee under or in respect of the Credit Agreements]/8/;
and
(d) the performance and payment of the covenants, agreements and
obligations hereinafter contained and all other monies secured hereby,
including, without limitation, any and all sums expended by the Mortgagee
pursuant to Section 1.13, together with interest thereon,
the Mortgagor hereby [agrees to amend and restate the Existing Mortgage, in its
entirety pursuant hereto, and]/9/ irrevocably grants, bargains, sells, releases,
conveys, warrants, assigns, transfers, mortgages, pledges, sets over and
confirms unto the Mortgagee, under and subject to the terms and conditions
hereinafter set forth, all of the following described properties:
----------
/6/ USE "MORTGAGOR" ONLY IF BORROWER IS MORTGAGOR; OTHERWISE USE "BORROWER'".
/7/ USE "MORTGAGOR" ONLY IF BORROWER IS MORTGAGOR; OTHERWISE USE "BORROWER'".
/8/ INSERT BRACKETED PROVISIONS IF THE MORTGAGOR IS ONE OF THE SUBSIDIARY
GUARANTORS.
/9/ INSERT BRACKETED RECITAL ONLY IF THIS IS AN AMENDED AND RESTATED MORTGAGE.
Mortgage
--------
- 5 -
(A) the land and premises (collectively, the "Fee Property") more
particularly described in Schedule I; and
(B) the [lease/lease agreement] (the "Lease") more particularly
described in Schedule II affecting the land and premises (collectively, the
"Leasehold Property" and, together with the Fee Property, the "Properties")
described in Schedule II;
TOGETHER WITH all interests, estates or other claims, both in law and
in equity, that the Mortgagor now has or may hereafter acquire in (a) the
Properties, (b) all easements, rights-of-way and rights used in connection
therewith or as a means of access thereto and (c) all tenements, hereditaments
and appurtenances in any manner belonging, relating or appertaining thereto (all
of the foregoing interests, estates and other claims being hereinafter
collectively called "Easements and Rights of Way"); and
TOGETHER WITH all estate, right, title and interest of the Mortgagor,
now owned or hereafter acquired, in and to any land lying within the
right-of-way of any streets, open or proposed, adjoining the Properties, and any
and all sidewalks, alleys and strips and gores of land adjacent to or used in
connection therewith (all of the foregoing estate, right, title and interest
being hereinafter called "Adjacent Rights"); and
TOGETHER WITH all estate, right, title and interest of the Mortgagor,
now owned or hereafter acquired, in and to any and all buildings and other
improvements now or hereafter located on the Properties and all building
materials, building equipment and fixtures of every kind and nature located on
the Properties or, attached to, contained in or used in any such buildings and
other improvements, and all appurtenances and additions thereto and betterments,
substitutions and replacements thereof (all of the foregoing estate, right,
title and interest being hereinafter collectively called, "Improvements"); and
TOGETHER WITH all estate, right, title and interest of the Mortgagor
in and to all such tangible property now owned or hereafter acquired by the
Mortgagor (including all machinery, apparatus, equipment, fittings and articles
of personal property) and now or hereafter located on or at or attached to the
Properties that an interest in such tangible property arises under applicable
real estate law, and any and all products and accessions to any such property
that may exist at any time (all of the foregoing estate, right, title and
interest, and products and accessions, being hereinafter called "Fixtures"); and
TOGETHER WITH all estate, right, title and interest of the Mortgagor
in and to all rights, royalties and profits in connection with all minerals, oil
and gas and other hydrocarbon substances on or in the Properties, development
rights or credits, air rights, water, water rights (whether riparian,
appropriative, or otherwise and whether or not appurtenant) and water stock (all
of the foregoing estate, right, title and interest being hereinafter
collectively called "Mineral and Related Rights"); and
TOGETHER WITH all reversion or reversions and remainder or remainders
of the Properties and Improvements and all estate, right, title and interest of
the Mortgagor in and to
Mortgage
--------
- 6 -
any and all present and future leases of space in the Properties and
Improvements, and all rents, revenues, proceeds, issues, profits, royalties,
income and other benefits now or hereafter derived from the Properties, the
Improvements and the Fixtures, subject to the right, power and authority
hereinafter given to the Mortgagor to collect and apply the same (all of the
foregoing reversions, remainders, leases of space, rents, revenues, proceeds,
issues, profits, royalties, income and other benefits being hereinafter
collectively called "Rents"); and
TOGETHER WITH all estate, right, title and interest and other claim or
demand that the Mortgagor now has or may hereafter acquire with respect to any
damage to the Properties, the Improvements or the Fixtures and any and all
proceeds of insurance in effect with respect to the Improvements or the
Fixtures, and any and all awards made for the taking by eminent domain, or by
any proceeding or purchase in lieu thereof, of the Properties, the Improvements
or the Fixtures, including without limitation any awards resulting from a change
of grade of streets or as the result of any other damage to the Properties, the
Improvements or the Fixtures for which compensation shall be given by any
governmental authority (all of the foregoing estate, right, title and interest
and other claims or demand, and any such proceeds or awards, being hereinafter
collectively, called "Damage Rights"); and
TOGETHER WITH all the estate, right, title, interest and other claim
of the Mortgagor with respect to any parking facilities located other than on
the Properties and used or intended to be used in connection with the operation,
ownership or use of the Properties, any and all replacements and substitutions
for the same, and any other parking rights, easements, covenants and other
interests in parking facilities acquired by the Mortgagor for the use of tenants
or occupants of the Improvements (all of the foregoing estate, right, title,
interest and other claim being hereinafter collectively called "Parking
Rights"); and
TOGETHER WITH all estate, right, title and interest of the Mortgagor
with respect to any and all air rights, development rights, zoning rights or
other similar rights or interests that benefit or are appurtenant to the
Properties or the Improvements (all of the foregoing estate, right, title and
interest being hereinafter collectively called "Air and Development Rights");
All of the foregoing Easements and Rights of Way, Adjacent Rights,
Improvements, Fixtures, Minerals and Related Rights, Rents, Damage Rights,
Parking Rights and Air and Development Rights being sometimes hereinafter
referred to collectively as the "Ancillary Rights and Properties" and the Lease,
Properties and Ancillary Rights and Properties being sometimes hereinafter
referred to collectively as the "Mortgage Estate";
TO HAVE AND TO HOLD the Mortgage Estate with all privileges and
appurtenances thereunto belonging, to the Mortgagee and its successors and
assigns, forever, upon the terms and conditions and for the uses hereinafter set
forth;
PROVIDED ALWAYS, that if the principal of and interest on the
extensions of credit under the Credit Agreements and all of the other
Obligations shall be paid in full, and the Mortgagor shall abide by and comply
with each and every covenant contained herein and in the
Mortgage
--------
- 7 -
Credit Agreements, then this Mortgage and the estate hereby granted shall cease,
terminate and become void.
This Mortgage, the Credit Agreements and any other instrument given to
evidence or further secure the payment and performance of any Obligation are
sometimes hereinafter collectively referred to as the "Loan Instruments".
TO PROTECT THE SECURITY OF THIS MORTGAGE, THE MORTGAGOR HEREBY
COVENANTS AND AGREES AS FOLLOWS:
ARTICLE 1
Particular Covenants and Agreements of the Mortgagor
----------------------------------------------------
Section 1.01. Payment of Secured Obligations. The Mortgagor shall pay
when due all Obligations.
Section 1.02. Title, Etc. The Mortgagor represents and warrants that
it has good and marketable fee simple title in and to the Fee Property, and that
it has a valid interest in the Ancillary Rights and Properties related to the
Properties, in each case subject to no mortgage, deed of trust, lien, pledge,
charge, security interest or other encumbrance or adverse claim of any nature,
except those listed as exceptions to title in the title policy insuring the lien
or estate created by this Mortgage and the Liens permitted under the Credit
Agreements.
The Mortgagor represents and warrants that (a) the Lease is in full
force and effect and, to the Mortgagor's knowledge, there are no defaults
thereunder that, individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect and no event has occurred and is
continuing that with notice or lapse of time or both could reasonably be
expected to result in such a default and (b) the Mortgagor is lawfully seized
and possessed of a valid and subsisting leasehold estate in and to the Leasehold
Properties and is the owner of the related Ancillary Rights and Properties with
respect to the Lease, in each case subject to no mortgage, deed of trust, lien,
pledge, charge, security interest or other encumbrance or adverse claim of any
nature (including, without limitation, any thereof affecting the fee title to
the Leasehold Properties), except those listed as exceptions to title in the
title policy insuring the lien or estate created by this Mortgage and the Liens
permitted under the Credit Agreements.
The Mortgagor represents and warrants that it has the full power and
lawful authority to grant, bargain, sell, release, convey, warrant, assign,
transfer, mortgage, pledge, set over and confirm unto the Mortgagee the Mortgage
Estate as hereinabove provided and warrants that it will forever defend the
title to the Mortgage Estate and the validity and priority of the lien or estate
hereof against the claims and demands of all persons whomsoever, subject to
exceptions to title in the title policy insuring the lien or estate created by
this Mortgage and the Liens permitted under the Credit Agreements.
Mortgage
--------
- 8 -
Section 1.03. Further Assurances; Filing; Re-Filing; Etc.
(a) Further Instruments. The Mortgagor shall execute, acknowledge and
deliver, from time to time, such further instruments as the Mortgagee may
reasonably require to accomplish the purposes of this Mortgage.
(b) Filing and Refiling. The Mortgagor, immediately upon the execution
and delivery of this Mortgage, and thereafter from time to time, shall cause
this Mortgage, any security agreement or mortgage supplemental hereto and each
instrument of further assurance reasonably required by the Mortgagee under
Section 1.03(a) of this Mortgage to be filed, registered or recorded and
refiled, re-registered or re-recorded in such manner and in such places as may
be required by any present or future law in order to publish notice of and
perfect the lien or estate of this Mortgage upon the Mortgage Estate.
(c) Fees and Expenses. The Mortgagor shall pay all filing,
registration and recording fees, all refiling, re-registration and re-recording
fees, and all expenses incident to the execution, filing, recording and
acknowledgment of this Mortgage, any security agreement or mortgage supplemental
hereto and any instrument of further assurance reasonably required by the
Mortgagee under Section 1.03(a) of this Mortgage, and all Federal, state, county
and municipal stamp taxes and other taxes, duties, imposts, assessments and
charges arising out of or in connection with the execution, delivery, filing and
recording of this Mortgage or any of the other Loan Instruments, any security
agreement or mortgage supplemental hereto or any instruments of further
assurance reasonably required by the Mortgagee under Section 1.03(a) of this
Mortgage.
Section 1.04. Liens. Except as otherwise provided in the Credit
Agreements, but without limiting the obligations of the Mortgagor under Section
1.07 of this Mortgage, the Mortgagor shall not create or suffer to be created
any mortgage, deed of trust, lien, security interest, charge or encumbrance upon
the Mortgage Estate prior to, on a parity with, or subordinate to the lien of
this Mortgage. The Mortgagor shall pay and promptly discharge at the Mortgagor's
cost and expense, any such mortgages, deeds of trust, liens, security interests,
charges or encumbrances upon the Mortgage Estate or any portion thereof or
interest therein.
Section 1.05. Insurance. The Mortgagor will maintain insurance, with
respect to the Mortgage Estate, issued by financially sound and reputable
insurers against loss or damage by reason of any Peril (as defined below) in
such amounts (subject to such deductibles as shall be reasonably satisfactory to
the Mortgagor) as shall be reasonable and customary and sufficient to avoid the
insured named therein from becoming a co-insurer of any loss under such policy
but in any event in an amount at least equal to 100% of the actual replacement
cost of the Mortgage Estate (including, without limitation, foundation, footings
and excavation costs), subject to deductibles as aforesaid. In addition, the
Mortgagor will maintain insurance (i) against claims for bodily injury, death or
property damage occurring on, in or about the Mortgage Estate (and adjoining
streets, sidewalks and waterways), in such amounts as are then reasonable and
customary for property similar in use in the jurisdictions where the Mortgage
Estate is located
Mortgage
--------
- 9 -
and (ii) such other insurance, including, without limitation, War-Risk Insurance
when and to the extent obtainable from the United States Government, in each
case as generally carried by owners of properties similar to the Mortgage Estate
in the jurisdictions where the Mortgage Estate is located, in such amounts and
against such risks as are then reasonable and customary for property similar in
use. The Mortgagor expressly assumes all risk of loss, including a decrease in
the use, enjoyment or value of the Mortgage Estate from any Peril, whether or
not insurable or insured against.
Such insurance shall be written by financially responsible companies
selected by the Mortgagor and having an A.M. Best rating of "A+" or better and
being in a financial size category of XIV or larger, or by other companies
reasonably acceptable to the Mortgagee, and shall name the Mortgagee as loss
payee (to the extent covering risk of loss or damage to tangible property) and
as an additional named insured as its interests may appear (to the extent
covering any other risk). Each policy referred to in this Section 1.05 shall
provide that it will not be canceled or reduced, or allowed to lapse without
renewal, except after not less than thirty days notice to the Mortgagee and
shall also provide that the interests of the Mortgagee, the Agents and the
Lenders shall not be invalidated by any act or negligence of the Mortgagor or
any Person having an interest in the Mortgage Estate nor by occupancy or use of
any of the Mortgage Estate for purposes more hazardous than permitted by such
policy nor by any foreclosure or other proceedings relating to the Mortgage
Estate. The Mortgagor will advise the Mortgagee promptly of any policy
cancellation, reduction or material amendment.
On or before the date hereof, the Mortgagor will deliver to the
Mortgagee certificates of insurance satisfactory to the Mortgagee evidencing the
existence of all insurance required to be maintained by the Mortgagor hereunder
setting forth the respective coverages, limits of liability, carrier, policy
number and period of coverage and showing that such insurance will remain in
effect through the December 31 falling at least six months after the date
hereof, subject only to the payment of premiums as they become due (and
attaching copies of any policies with respect to casualty insurance).
Thereafter, on each November 15 in each year (commencing with the first November
15 after the date hereof) the Mortgagor will deliver to the Mortgagee
certificates of insurance evidencing that all insurance required to be
maintained by the Mortgagor hereunder will be in effect through the December 31
of the calendar year following the calendar year of the current November 15,
subject only to the payment of premiums as they become due. In addition, the
Mortgagor will not modify in any material respect any of the provisions of any
policy with respect to casualty insurance without delivering a copy of the
endorsement reflecting such modification to the Mortgagee accompanied by a
written report of independent insurance brokers reasonably acceptable to
Mortgagee, stating that, in their opinion, such policy (as so modified)
adequately protects the interests of the Mortgagee, the Agents and the Lenders,
is in compliance with the provisions of this Section 1.05, and is comparable in
all material respects with insurance carried by responsible owners and operators
of properties similar to the Mortgage Estate. The Mortgagor will not obtain or
carry separate insurance concurrent in form or contributing in the event of loss
with that required by this Section 1.05 unless the Mortgagee is the named
insured thereunder, with loss payable as provided herein. The Mortgagor will
immediately notify the Mortgagee whenever any such
Mortgage
--------
- 10 -
separate insurance is obtained and shall deliver to the Mortgagee the
certificates evidencing the same.
Without limiting the obligations of the Mortgagor under the foregoing
provisions of this Section 1.05, in the event the Mortgagor shall fail to
maintain in full force and effect insurance as required by the foregoing
provisions of this Section 1.05, then the Mortgagee may, but shall have no
obligation so to do, procure insurance covering the interests of the Mortgagee,
the Agents and the Lenders in such amounts and against such risks as the
Mortgagee shall deem appropriate and the Mortgagor shall reimburse the Mortgagee
in respect of any premiums paid by the Mortgagee in respect thereof.
For purposes hereof, the term "Peril" means, collectively, fire,
lightning, flood, windstorm, hail, earthquake, explosion, riot and civil
commotion, vandalism and malicious mischief, damage from aircraft, vehicles and
smoke and all other perils covered by the "all-risk" endorsement then in use in
the jurisdictions where the Mortgage Estate is located.
Nothing in this Section 1.05 shall be deemed to limit in any respect
the obligations of the Mortgagor under any applicable provision of the Credit
Agreements.
Section 1.06. Casualty and Condemnation Events.
(a) Casualty and Condemnation. Should the Mortgage Estate or any part
thereof be taken or damaged by reason of any fire or other casualty
(collectively, a "Casualty"), or by reason of any public improvement or
condemnation proceeding (collectively, a "Condemnation") or should the Mortgagor
receive any notice or other information regarding any such proceeding, the
Mortgagor shall give prompt notice thereof to the Mortgagee. The Mortgagee
shall, subject to the rights of the lessor under the Lease, be entitled to
receive all insurance or other amounts payable as a result of any such Casualty
(collectively, the "Casualty Proceeds"), and all compensation, awards, damages
and other payments or relief arising out of any such condemnation or any part
thereof (collectively, "Condemnation Proceeds"), and all such insurance and
other amounts, and compensation, awards, damages and other payments or relief,
together with all rights and causes of action relating thereto or arising out of
any such Casualty or Condemnation, are hereby assigned to the Mortgagee. The
Mortgagor shall execute such further assignments of the Casualty Proceeds and
Condemnation Proceeds as the Mortgagee may from time to time require.
(b) Restoration Account. Following the occurrence of any Casualty or
Condemnation involving the Mortgage Estate or any part thereof resulting in a
loss in excess of $[_______], the Mortgagor shall give prompt notice thereof to
the Mortgagee and shall cause all Casualty or Condemnation Proceeds, as the case
may be, to be paid to the Mortgagee as additional collateral security hereunder
subject to the lien of this Mortgage. Upon receipt by the Mortgagee of any such
proceeds (including, without limitation, any Casualty Proceeds payable directly
to the Mortgagee as loss payee under the respective policies maintained pursuant
to Section 1.05), the Mortgagee shall deposit the same into a cash collateral
account (the "Restoration Account") in the name and under the control of the
Mortgagee. The balance from
Mortgage
--------
- 11 -
time to time in the Restoration Account shall constitute part of the Mortgage
Estate hereunder and shall not constitute payment of the Obligations until
applied as hereinafter provided.
(c) Application of Proceeds. Following the occurrence of any Casualty
or Condemnation involving the Mortgage Estate or any part thereof, any Casualty
or Condemnation Proceeds must be applied to the extent and in the manner
required by the Credit Agreements.
(d) Compromise, Adjustment or Settlement. The Mortgagee shall, subject
to the rights of the lessor under the Lease, be entitled at its option to
participate in any compromise, adjustment or settlement in connection with any
claims for loss, damage or destruction under any policy or policies of
insurance, in excess of $[_______], and the Mortgagor shall within five Business
Days after request therefor reimburse the Mortgagee for all out-of-pocket
expenses (including reasonable attorneys' fees and disbursements) incurred by
the Mortgagee in connection with such participation. The Mortgagor shall not
make any compromise, adjustment or settlement in connection with any such claim
without the approval of the Mortgagee.
(e) Foreclosure, Etc. In the event of foreclosure of the lien of this
Mortgage or other transfer of title or assignment of the Mortgage Estate in
extinguishment, in whole or in part, of the Obligations, all right, title and
interest of the Mortgagor in and to all policies of casualty insurance covering
all or any part of the Mortgage Estate shall, subject to the rights of the
lessor under the Lease, inure to the benefit of and pass to the successors in
interest to the Mortgagor or the purchaser or grantee of the Mortgage Estate or
any part thereof.
Section 1.07. Impositions.
(a) Payment of Impositions. Except to the extent otherwise permitted
under any applicable provision of the Credit Agreements, the Mortgagor shall pay
or cause to be paid, before any fine, penalty, interest or cost attaches
thereto, all taxes, assessments, water and sewer rates, utility charges and all
other governmental or nongovernmental charges or levies now or hereafter
assessed or levied against any part of the Mortgage Estate (including, without
limitation, nongovernmental levies or assessments such as maintenance charges,
owner association dues or charges or fees, levies or charges resulting from
covenants, conditions and restrictions affecting the Mortgage Estate) or upon
the lien or estate of the Mortgagee therein (collectively, "Impositions"), as
well as all claims for labor, materials or supplies that, if unpaid, might by
law become a prior lien thereon, and within ten days after request by the
Mortgagee will exhibit receipts showing payment of any of the foregoing;
provided, however, that if by law any such Imposition may be paid in
installments (whether or not interest shall accrue on the unpaid balance
thereof), the Mortgagor may pay the same in installments (together with accrued
interest on the unpaid balance thereof) as the same respectively become due,
before any fine, penalty or cost attaches thereto.
(b) Right to Contest Impositions. To the extent not inconsistent with
any applicable provisions of the Credit Agreement, the Mortgagor at its expense
may, after prior notice to the Mortgagee, contest by appropriate legal,
administrative or other proceedings conducted in good faith and with due
diligence, the amount or validity or application, in whole or
Mortgage
--------
- 12 -
in part, of any Imposition or lien therefor or any claims of mechanics,
materialmen, suppliers or vendors or lien thereof, and may withhold payment of
the same pending such proceedings if permitted by law, so long as (i) in the
case of any Impositions or lien therefor or any claims of mechanics,
materialmen, suppliers or vendors or lien thereof, such proceedings shall
suspend the collection thereof from the Mortgage Estate, (ii) neither the
Mortgage Estate nor any part thereof or interest therein will be sold, forfeited
or lost if the Mortgagor pays the amount or satisfies the condition being
contested, and the Mortgagor would have the opportunity to do so, in the event
of the Mortgagor's failure to prevail in the contest, (iii) neither the
Mortgagee nor any of the Agents or the Lenders would, by virtue of such
permitted contest, be exposed to any risk of any civil liability for which the
Mortgagor has not furnished additional security as provided in clause (iv)
below, or to any risk of criminal liability, and neither the Mortgage Estate nor
any interest therein would be subject to the imposition of any lien for which
the Mortgagor has not furnished additional security as provided in clause (iv)
below, as a result of the failure to comply with such law or of such proceeding
and (iv) the Mortgagor shall have furnished to the Mortgagee additional security
in respect of the claim being contested or the loss or damage that may result
from the Mortgagor's failure to prevail in such contest in such amount as may be
reasonably requested by the Mortgagee, but only to the extent that such claim or
contest and all other then-current claims or contests involve an aggregate
amount greater than $[_______].
Section 1.08. Maintenance of the Improvements and Fixtures. The
Mortgagor shall not permit the Improvements or Fixtures to be removed or
demolished (provided, however, that, subject to the applicable provisions of the
Credit Agreements, the Mortgagor may remove or alter such Improvements and
Fixtures that become obsolete in the usual conduct of the Mortgagor's business
and the removal or alteration of which do not materially detract from the
operation of the Mortgagor's business); shall maintain the Mortgage Estate in
good repair, working order and condition, except for reasonable wear and use;
and shall restore and repair the Improvements and Fixtures or any part thereof
now or hereafter affected by any Casualty or Condemnation.
Section 1.09. Compliance With Laws.
(a) Representation. The Mortgagor represents and warrants that, except
as otherwise previously disclosed in writing to the Mortgagee, the Mortgagor and
its operations at the Properties currently comply with all laws, ordinances,
orders, rules and regulations of all Federal, state, and local governments and
of the appropriate departments, commissions, boards and offices thereof, and the
orders, rules and regulations of the American Insurance Association or any other
body now or hereafter constituted exercising similar functions, that at any time
are applicable to the Mortgage Estate, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
(b) Notification of Notices and Orders. The Mortgagor shall notify the
Mortgagee promptly of any notice or order that the Mortgagor receives from any
agency or instrumentality of the Federal, or any state or local, government with
respect to the Mortgagor's compliance with any laws or regulations referred to
in this Section 1.09 and promptly take any and all actions necessary to bring
its operations at the Properties into compliance with such laws
Mortgage
--------
- 13 -
or regulations (and shall fully comply with the requirements of such laws or
regulations that at any time are applicable to its operations at the Properties)
all to the extent required under the applicable provisions of the Credit
Agreements; provided that to the extent not inconsistent with the Credit
Agreements, the Mortgagor at its expense may, after prior notice to the
Mortgagee, contest by appropriate legal, administrative or other proceedings
conducted in good faith and with due diligence, the validity or application, in
whole or in part, of any such laws or regulations so long as (i) neither the
Mortgage Estate nor any part thereof or any interest therein, will be sold,
forfeited or lost if the Mortgagor pays the amount or satisfies the condition
being contested, and the Mortgagor would have the opportunity to do so, in the
event of the Mortgagor's failure to prevail in the contest, (ii) neither the
Mortgagee nor any of the Agents or the Lenders would, by virtue of such
permitted contest, be exposed to any risk of any civil liability for which the
Mortgagor has not furnished additional security as provided in clause (iii)
below, or to any risk of criminal liability, and neither the Mortgage Estate nor
any interest therein would be subject to the imposition of any lien for which
the Mortgagor has not furnished additional security as provided in clause (iii)
below as a result of the failure to comply with such law or of such proceeding
and (iii) the Mortgagor shall have furnished to the Mortgagee additional
security in respect of the claim being contested or the loss or damage that may
result from the Mortgagor's failure to prevail in such contest in such amount as
may be reasonably requested by the Mortgagee, but only to the extent that such
claim or contest and all other then-current claims or contests involve an
aggregate amount greater than $[________].
(c) Right to Cure Non-Compliance with Environmental Laws. The
Mortgagee, at its election and in its sole discretion may, without obligation to
do so, and upon reasonable prior notice to the Mortgagor (except in an
emergency), cure any failure on the part of the Mortgagor to comply with any
laws or regulations referred to in this Section 1.09 to the extent such failure
results in an Event of Default that is continuing and could reasonably be
expected to result in a Material Adverse Effect, and without limitation, may
take any of the following actions:
(i) arrange for the prevention of any Release or threat of
Release of Hazardous Substances at any of the Properties, and pay any costs
associated with such prevention;
(ii) arrange for the removal or remediation of Hazardous
Substances that may be Released or result from a Release at any of the
Properties, and pay any costs associated with such removal and/or
remediation;
(iii) pay, on behalf of the Mortgagor, any costs, fines or
penalties imposed on the Mortgagor by the Federal, or any state or local,
government or any representative thereof in connection with such Release of
Hazardous Substances; or
(iv) make any other payment or perform any other act that will
prevent a lien in favor of any governmental agency from attaching to any of
the Properties or the Mortgage Estate.
Mortgage
--------
- 14 -
Any partial exercise by the Mortgagee of the remedies hereinafter set forth, or
any partial undertaking on the part of the Mortgagee to cure the Mortgagor's
failure to comply with such laws or regulations, shall not obligate the
Mortgagee to complete the actions taken or require the Mortgagee to expend
further sums to cure the Mortgagor's noncompliance; nor shall the exercise of
any such remedies operate to place upon the Mortgagee any responsibility for the
operation, control, care, management or repair of any of the Properties or make
the Mortgagee the "operator" of any of the Properties within the meaning of any
Environmental Laws. Any amount paid or costs incurred by the Mortgagee as a
result of the exercise by the Mortgagee of any of the rights hereinabove set
forth, together with interest thereon at the Post-Default Rate, shall be
immediately due and payable by the Mortgagor to the Mortgagee, and until paid
shall be added to and become a part of the Obligations secured hereby; and the
Mortgagee, by making any such payment or incurring any such costs, shall be
subrogated to any rights of the Mortgagor to seek reimbursement from any third
parties, including, without limitation, a predecessor-in-interest to the
Mortgagor's title who may be a "responsible party" or otherwise liable under any
Environmental Law in connection with any such Release or threat of Release of
Hazardous Substances.
(d) Environmental Survey and Risk Assessment. If after the occurrence
and during the continuance of any Event of Default the Mortgagee, if it has
reason to believe that a violation of applicable Environmental Laws has occurred
that if not remedied could reasonably be expected to result in a Material
Adverse Effect, desires that an environmental survey and risk assessment with
respect to any of the Properties be prepared, the Mortgagor agrees to supply
such a survey and risk assessment by an independent engineering firm selected by
the Mortgagor and satisfactory to the Mortgagee, in form and detail satisfactory
to the Mortgagee (including test borings of the ground and chemical analyses of
air, water and waste discharges), estimating current liabilities and assessing
potential sources of future liabilities of the Mortgagor or any other owner or
operator of the Properties under applicable Environmental Laws.
Section 1.10. Limitations of Use. The Mortgagor shall not initiate,
join in or consent to any change in any private restrictive covenant, zoning
ordinance or other public or private restrictions limiting or defining the uses
that may be made of any of the Properties and the Improvements or any part
thereof that would have a material adverse effect on the value of any of the
Properties or the Improvements. The Mortgagor shall comply with the provisions
of all leases, licenses, agreements and private covenants, conditions and
restrictions that at any time are applicable to the Mortgage Estate.
Section 1.11. Inspection of the Properties. The Mortgagor will keep
proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and
activities. The Mortgagor will permit any representatives designated by the
Mortgagee or any Agent, upon reasonable prior notice, to visit and inspect the
Properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers, employees and
independent accountants, all at such reasonable times and as often as reasonably
requested (which visits and inspections shall be at the Mortgagor's sole expense
after the occurrence and during the
Mortgage
--------
- 15 -
continuance of any Event of Default or in the case of any visit or inspection by
the Mortgagee and at such Agent's sole expense at any other time).
Section 1.12. Estoppel Certificates. The Mortgagor, within ten
business days upon request in person or within fifteen business days upon
request by mail, shall furnish the Mortgagee a written statement, duly
acknowledged, of the amount of the Obligations then secured by this Mortgage and
whether any offsets or defenses exist against any such Obligations.
Section 1.13. Actions to Protect Mortgage Estate. If the Mortgagor
shall fail to (a) perform and observe any of the terms, covenants or conditions
required to be performed or observed by it under the Lease, (b) effect the
insurance required by Section 1.06, (c) make the payments required by Section
1.07 or (d) perform or observe any of its other covenants or agreements
hereunder, the Mortgagee may, without obligation to do so, and upon notice to
the Mortgagor (except in an emergency) effect or pay the same. To the maximum
extent permitted by law, all sums, including reasonable attorneys' fees and
disbursements, so expended or expended to sustain the lien or estate of this
Mortgage or its priority, or to protect or enforce any of the rights hereunder,
or to recover any of the Obligations, shall be a lien on the Mortgage Estate,
shall be deemed to be added to the Obligations secured hereby, and shall be paid
by the Mortgagor within ten days after demand therefor, together with interest
thereon at the Post-Default Rate.
Section 1.14. Insurance and Condemnation Proceeds; Restoration
Account. Any Casualty or Condemnation Proceeds, shall, as provided in Section
1.06, be held by the Mortgagee in the Restoration Account and any interest or
other amounts, if any, actually earned on the balance held by the Mortgagee in
the Restoration Account shall be credited to the Restoration Account, for the
benefit of the Mortgagor. So long as no Event of Default shall have occurred and
be continuing, at the written request of the Mortgagor, any monies held in the
Restoration Account shall be invested or reinvested in such Permitted
Investments as the Mortgagor shall from time to time specify. Such Permitted
Investments shall be held by the Mortgagee pursuant to this Section 1.14; but,
upon request of the Mortgagor, the Mortgagee shall sell all or any designated
part of the same and the proceeds of such sale shall be held by the Mortgagee in
the Restoration Account subject to the provisions hereof in the same manner as
the cash used by it to purchase the Permitted Investments so sold. The Mortgagor
agrees to pay the Mortgagee, on demand, amounts equal to any loss resulting from
any investment or reinvestment pursuant to this Section 1.14 (and any such
payments made by the Mortgagor shall be deposited by the Mortgagee into the
Restoration Account), it being understood that the Mortgagee shall not be liable
or responsible for any such loss.
Notwithstanding anything herein or at law or in equity to the
contrary, none of the Casualty or Condemnation Proceeds paid to the Mortgagee as
herein provided, and none of the other amounts from time to time held in the
Restoration Account, shall be deemed trust funds, and the Mortgagee shall be
entitled to advance amounts from time to time held in the Restoration Account to
the Mortgagor, or to apply the same to the prepayment of the loans or other
indebtedness constituting the Obligations hereunder, as provided in Section
1.06(c).
Mortgage
--------
- 16 -
Section 1.15. Leasehold Interests.
(a) Leasehold Interests Generally. The Mortgagor shall (i) timely
perform and observe all of the terms, covenants and conditions required to be
performed and observed by the Mortgagor under the Lease and do all things
reasonably necessary to preserve and to keep unimpaired its rights thereunder,
except to the extent that failure to perform, observe or do such things could
not reasonably be expected to have a Material Adverse Effect, (ii) promptly
notify the Mortgagee of any default by the Mortgagor under the Lease in the
performance of any of the terms, covenants or conditions on the part of the
Mortgagor to be performed or observed thereunder or of the giving of any notice
by the lessor to the Mortgagor of any default under the Lease or of the lessor's
intention to exercise any remedy reserved to the lessor thereunder, provided
that the same could not reasonably be expected to result in a Material Adverse
Effect, and (iii) promptly cause a copy of each such notice given by the lessor
under the Lease to the Mortgagor to be delivered to the Mortgagee.
(b) Right to Cure Defaults. If the Mortgagor shall fail promptly to
perform or observe any of the terms, covenants or conditions required to be
performed by it under the Lease, which if not performed could reasonably be
expected to result in a Material Adverse Effect, including, without limitation,
payment of all rent and other charges due thereunder, the Mortgagee may, without
obligation to do so, and upon reasonable prior notice to the Mortgagor (except
in an emergency), take such action as is appropriate to cause such terms,
covenants or conditions to be promptly performed or observed on behalf of the
Mortgagor but no such action by the Mortgagee shall release the Mortgagor from
any of its obligations under this Mortgage. Upon receipt by the Mortgagee from
the lessor under the Lease of any notice of default by the Mortgagor thereunder,
the Mortgagee may rely thereon and take any action as aforesaid to cure such
default even though the existence of such default or the nature thereof be
questioned or denied by the Mortgagor or by any party on behalf of the
Mortgagor.
(c) No Modification Without Consent. The Mortgagor shall not surrender
its leasehold estate and interests under the Lease, nor terminate or cancel the
Lease, and the Mortgagor shall not modify, change, supplement, alter or amend
the Lease orally or in writing, if such modification, change, supplement,
alteration or amendment could reasonably be expected to result in a Material
Adverse Effect, and, except as provided above, the Mortgagor does hereby
expressly release, relinquish and surrender unto the Mortgagee all its right,
power and authority, if any, to modify, change, supplement, alter or amend the
Lease in any way, and any attempt on the part of the Mortgagor to exercise any
such right without the consent of the Mortgagee shall be null and void.
(d) Release or Forbearance. No release or forbearance of any of the
Mortgagor's obligations under the Lease, pursuant to the terms thereof or
otherwise, shall release the Mortgagor from any of its obligations under this
Mortgage.
(e) No Merger of Interests. Neither the fee title to the property
demised by the Lease nor the leasehold estate created by the Lease shall merge,
but shall always remain separate and distinct, notwithstanding the union of the
aforesaid estates either in the lessor or the
Mortgage
--------
- 17 -
Mortgagor under the Lease or in a third party by purchase or otherwise, unless
the Mortgagee shall, at its option, execute and record a document evidencing its
intent to merge such estates. If the Mortgagor acquires the fee title or any
other estate, title or interest in any Leasehold Property covered by the Lease,
this Mortgage shall attach to, be a lien upon and spread to the fee title or
such other estate so acquired, and such fee title or other estate shall, without
further assignment, mortgage or conveyance, become and be subject to the lien of
this Mortgage. The Mortgagor shall notify the Mortgagee of any such acquisition
by the Mortgagor and, on written request by the Mortgagee, shall cause to be
executed and recorded all such other and further assurances or other instruments
in writing as may in the reasonable opinion of the Mortgagee be required to
carry out the intent and meaning hereof.
(f) Obligations of Lessor. The Mortgagor shall enforce the obligations
of the lessor under the Lease to the end that the Mortgagor may enjoy all of the
rights granted to it under the Lease, which if unavailable to Mortgagor could
reasonably be expected to have a Material Adverse Effect, and shall promptly
notify the Mortgagee of any default by the lessor under the Lease, in the
performance or observance of any of the material terms, covenants and conditions
on the part of the lessor to be performed or observed under the Lease and the
Mortgagor shall promptly advise the Mortgagee of the occurrence of any event of
default under the Lease that could reasonably be expected to have a Material
Adverse Effect.
(g) No-Default Certificates. The Mortgagor shall use reasonable
efforts to obtain from the lessor under the Lease and deliver to the Mortgagee,
within twenty days after demand from the Mortgagee, a statement in writing
certifying that the Lease is unmodified and in full force and effect and the
dates to which the rent and other charges, if any, have been paid in advance,
and stating whether or not, to the best knowledge of the signer of such
certificate, the Mortgagor is in default in the performance of any covenant,
agreement or condition contained in the Lease, and, if so, specifying each such
default of which the signer may have knowledge.
(h) Renewals and Extensions. Unless the exercise of any option, now
existing or hereafter created, to renew or extend the term of the Lease would,
in the Mortgagor's reasonable business judgment, be inadvisable, the Mortgagor
shall, at least ninety days prior to the last day upon which the Mortgagor may
validly exercise such option, (i) exercise such option in such manner as will
cause the term of the Lease to be effectively renewed or extended for the period
provided by such option and (ii) give immediate notice thereof to the Mortgagee,
it being understood that in the event of the failure of the Mortgagor to do so,
the Mortgagee shall have, and is hereby granted, the irrevocable right to
exercise any such option, either in its own name and behalf, or in the name and
behalf of the Mortgagor, as the Mortgagee shall in its reasonable discretion
determine.
(i) Notifications of Changes in Rent. The Mortgagor shall promptly
notify the Mortgagee of any change in the rent or other charges payable under
the Lease, except for changes made pursuant to the provisions of the Lease.
(j) Notifications Concerning Proceeds. In the event that any proceeds
of insurance on any part of the Mortgage Estate, or any Condemnation Proceeds,
shall be deposited
Mortgage
--------
- 18 -
with any person pursuant to the requirements of the Lease, the Mortgagor shall
promptly notify the Mortgagee of the name and address of the person with whom
such proceeds have been deposited and of the amount so deposited.
Section 1.16. Notice Regarding Special Flood Hazards. The Mortgagor
hereby acknowledges that it realizes that the following Properties are in zones
identified by the Director of the Federal Emergency Management Agency as special
flood hazard zones described in 12 C.F.R. Section 22.2 and that it has received,
prior to the making of the Loans and the incurrence of any other indebtedness
constituting part of the Obligations secured by this Mortgage, the notice
regarding Federal disaster relief assistance referred to in the Appendix to 12
C.F.R. Part 22:
[List Properties located in special flood hazard zones].
ARTICLE 2
Assignment of Rents, Issues and Profits
---------------------------------------
Section 2.01. Assignment of Rents, Issues and Profits. The Mortgagor
hereby assigns and transfers to the Mortgagee, FOR THE PURPOSE OF SECURING the
Obligations, all Rents, and hereby gives to and confers upon the Mortgagee the
right, power and authority to collect the same. The Mortgagor irrevocably
appoints the Mortgagee its true and lawful attorney-in-fact, at its option at
any time and from time to time following the occurrence and during the
continuance of an Event of Default, to demand, receive and enforce payment, to
give receipts, releases and satisfactions, and to ▇▇▇, in the name of the
Mortgagor or otherwise, for Rents and apply the same to the Obligations as
provided in paragraph (a) of Section 4.02; provided, however, that the Mortgagor
shall have the right to collect Rents at any time prior to the occurrence of an
Event of Default (but not more than one month in advance, except in the case of
security deposits).
Section 2.02. Collection Upon Default. To the extent permitted by law,
upon the occurrence of any Event of Default, the Mortgagee may, at any time
without notice, either in person, by agent or by a receiver appointed by a
court, and without regard to the adequacy of any security for the Obligations or
the solvency of the Mortgagor, enter upon and take possession of the Properties,
the Improvements and the Fixtures or any part thereof, in its own name, ▇▇▇ for
or otherwise collect Rents including those past due and unpaid, and, apply the
same, less costs and expenses of operation and collection, including attorneys'
fees and disbursements, to the payment of the Obligations as provided in
paragraph (a) of Section 4.02, and in such order as the Mortgagee may determine.
The collection of Rents or the entering upon and taking possession of the
Properties, the Improvements or the Fixtures or any part thereof, or the
application thereof as aforesaid, shall not cure or waive any Event of Default
or notice thereof or invalidate any act done in response to such Event of
Default or pursuant to notice thereof.
ARTICLE 3
Mortgage
--------
- 19 -
Security Agreement
------------------
Section 3.01. Creation of Security Interest. The Mortgagor hereby
grants to the Mortgagee a security interest in the Fixtures for the purpose of
securing the Obligations. The Mortgagee shall have, in addition to all rights
and remedies provided herein and in the other Loan Instruments, all the rights
and remedies of a secured party under the Uniform Commercial Code of the state
in which the applicable portion of the Fixtures is located.
Section 3.02. Warranties, Representations and Covenants. The Mortgagor
hereby warrants, represents and covenants that: (a) the Fixtures will be kept on
or at the related Properties and the Mortgagor will not remove any Fixtures from
the related Properties, except such portions or items of the Fixtures that are
consumed or worn out in ordinary usage, all of which shall be promptly replaced
by the Mortgagor, except as otherwise expressly provided in Section 1.08, (b)
all covenants and obligations of the Mortgagor contained herein relating to the
Mortgage Estate shall be deemed to apply to the Fixtures whether or not
expressly referred to herein and (c) this Mortgage constitutes a security
agreement and "fixture filing" as those terms are used in the applicable Uniform
Commercial Code. Information relative to the security interest created hereby
may be obtained by application to the Mortgagee (secured party) c/o to JPMorgan
Chase Bank, , ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention
of ▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇; Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇), with
a copy to JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇; Telephone No.
(▇▇▇) ▇▇▇-▇▇▇▇). The mailing address of the Mortgagor is set forth on Page 1
hereof.
ARTICLE 4
Defaults; Remedies
------------------
Section 4.01. Default Remedies.
(a) Remedies Generally. If an Event of Default shall have occurred and
be continuing, this Mortgage may, to the maximum extent permitted by law, be
enforced, and the Mortgagee may exercise any right, power or remedy permitted to
it hereunder, under the Credit Agreements or under any of the other Loan
Instruments or by law, and, without limiting the generality of the foregoing,
the Mortgagee may, personally or by its agents, to the maximum extent permitted
by law:
(i) enter into and take possession of the Mortgage Estate or any
part thereof, exclude the Mortgagor and all persons claiming under the
Mortgagor whose claims are junior to this Mortgage, wholly or partly
therefrom, and use, operate, manage and control the same either in the name
of the Mortgagor or otherwise as the Mortgagee shall deem best, and upon
such entry, from time to time at the expense of the Mortgagor and the
Mortgage Estate, make all such repairs, replacements, alterations,
additions or
Mortgage
--------
- 20 -
improvements to the Mortgage Estate or any part thereof as the Mortgagee
may deem proper and, whether or not the Mortgagee has so entered and taken
possession of the Mortgage Estate or any part thereof, collect and receive
all Rents and apply the same to the payment of all expenses that the
Mortgagee may be authorized to make under this Mortgage, the remainder to
be applied to the payment of the Obligations until the same shall have been
repaid in full; if the Mortgagee demands or attempts to take possession of
the Mortgage Estate or any portion thereof in the exercise of any rights
hereunder, the Mortgagor shall promptly turn over and deliver complete
possession thereof to the Mortgagee; and
(ii) personally or by agents, with or without entry, if the
Mortgagee shall deem it advisable:
(x) sell the Mortgage Estate at a sale or sales held at such
place or places and time or times and upon such notice and otherwise
in such manner as may be required by law, or, in the absence of any
such requirement, as the Mortgagee may deem appropriate, and from time
to time adjourn any such sale by announcement at the time and place
specified for such sale or for such adjourned sale without further
notice, except such as may be required by law;
(y) proceed to protect and enforce its rights under this
Mortgage, by suit for specific performance of any covenant contained
herein or in the Loan Instruments or in aid of the execution of any
power granted herein or in the Loan Instruments, or for the
foreclosure of this Mortgage (as a mortgage or otherwise) and the sale
of the Mortgage Estate under the judgment or decree of a court of
competent jurisdiction, or for the enforcement of any other right as
the Mortgagee shall deem most effectual for such purpose, provided
that in the event of a sale, by foreclosure or otherwise, of less than
all of the Mortgage Estate, this Mortgage shall continue as a lien on,
and security interest in, the remaining portion of the Mortgage
Estate; or
(z) exercise any or all of the remedies available to a secured
party under the applicable Uniform Commercial Code, including, without
limitation:
(1) either personally or by means of a court appointed
receiver, take possession of all or any of the Fixtures and
exclude therefrom the Mortgagor and all persons claiming under the
Mortgagor, and thereafter hold, store, use, operate, manage,
maintain and control, make repairs, replacements, alterations,
additions and improvements to and exercise all rights and powers
of the Mortgagor in respect of the Fixtures or any part thereof;
if the Mortgagee demands or attempts to take possession of the
Fixtures in the exercise of any rights hereunder, the Mortgagor
shall promptly turn over and deliver complete possession thereof
to the Mortgagee;
Mortgage
--------
- 21 -
(2) without notice to or demand upon the Mortgagor, make
such payments and do such acts as the Mortgagee may deem necessary
to protect its security interest in the Fixtures, including,
without limitation, paying, purchasing, contesting or compromising
any encumbrance that is prior to or superior to the security
interest granted hereunder, and in exercising any such powers or
authority paying all expenses incurred in connection therewith;
(3) require the Mortgagor to assemble the Fixtures or any
portion thereof, at a place designated by the Mortgagee and
reasonably convenient to both parties, and promptly to deliver the
Fixtures to the Mortgagee, or an agent or representative
designated by it; the Mortgagee, and its agents and
representatives, shall have the right to enter upon the premises
and property of the Mortgagor to exercise the Mortgagee's rights
hereunder; and
(4) sell, lease or otherwise dispose of the Fixtures, with
or without having the Fixtures at the place of sale, and upon such
terms and in such manner as the Mortgagee may determine (and the
Mortgagee or any Lender may be a purchaser at any such sale).
(b) Appointment of Receiver. If an Event of Default shall have
occurred and be continuing, the Mortgagee, to the maximum extent permitted by
law, shall be entitled, as a matter of right, to the appointment of a receiver
of the Mortgage Estate, without notice or demand, and without regard to the
adequacy of the security for the Obligations or the solvency of the Mortgagor.
The Mortgagor hereby irrevocably consents to such appointment and waives notice
of any application therefor. 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 the Mortgagee in case of entry and shall continue as such and
exercise all such powers until the date of confirmation of sale of the Mortgage
Estate, unless such receivership is sooner terminated.
(c) Rents. If an Event of Default shall have occurred and be
continuing, the Mortgagor shall, to the maximum extent permitted by law, pay
monthly in advance to the Mortgagee, or to any receiver appointed at the request
of the Mortgagee to collect Rents, the fair and reasonable rental value for the
use and occupancy of the Properties, the Improvements and the Fixtures or of
such part thereof as may be in the possession of the Mortgagor. Upon default in
the payment thereof, the Mortgagor shall vacate and surrender possession of the
Properties, the Improvements and the Fixtures to the Mortgagee or such receiver,
and upon a failure so to do may be evicted by summary proceedings.
(d) Sale. In any sale under any provision of this Mortgage or pursuant
to any judgment or decree of court, the Mortgage Estate, to the maximum extent
permitted by law, may be sold in one or more parcels or as an entirety and in
such order as the Mortgagee may elect, without regard to the right of the
Mortgagor or any person claiming under the Mortgagor to the marshalling of
assets. The purchaser at any such sale shall take title to the Mortgage Estate
or
Mortgage
--------
- 22 -
the part thereof so sold free and discharged of the estate of the Mortgagor
therein, the purchaser being hereby discharged from all liability to see to the
application of the purchase money. Any person, including the Mortgagee or any
Lender, may purchase at any such sale. Upon the completion of any such sale by
virtue of this Section 4.01 the Mortgagee shall execute and deliver to the
purchaser an appropriate instrument that shall effectively transfer all of the
Mortgagor's estate, right, title, interest, property, claim and demand in and to
the Mortgage Estate or portion thereof so sold, but without any covenant or
warranty, express or implied. The Mortgagee is hereby irrevocably appointed the
attorney-in-fact of the Mortgagor in its name and stead to make all appropriate
transfers and deliveries of the Mortgage Estate or any portions thereof so sold
and, for that purpose, the Mortgagee may execute all appropriate instruments of
transfer, and may substitute one or more persons with like power, the Mortgagor
hereby ratifying and confirming all that said attorneys or such substitute or
substitutes shall lawfully do by virtue hereof. Nevertheless, the Mortgagor
shall ratify and confirm, or cause to be ratified and confirmed, any such sale
or sales by executing and delivering, or by causing to be executed and
delivered, to the Mortgagee or to such purchaser or purchasers all such
instruments as may be advisable, in the judgment of the Mortgagee, for such
purpose, and as may be designated in such request. Any sale or sales made under
or by virtue of this Mortgage, to the extent not prohibited by law, shall
operate to divest all the estate, right, title, interest, property, claim and
demand whatsoever, whether at law or in equity, of the Mortgagor in, to and
under the Mortgage Estate, or any portions thereof so sold, and shall be a
perpetual bar both at law and in equity against the Mortgagor and against any
and all persons claiming or who may claim the same, or any part thereof, by,
through or under the Mortgagor. The powers and agency herein granted are coupled
with an interest and are irrevocable.
(e) Possession of Loan Instruments Not Necessary. All rights of action
under the Loan Instruments and this Mortgage may be enforced by the Mortgagee
without the possession of the Loan Instruments and without the production
thereof at any trial or other proceeding relative thereto.
Section 4.02. Application of Proceeds.
(a) Application of Proceeds Generally. The proceeds of any sale made
either under the power of sale hereby given or under a judgment, order or decree
made in any action to foreclose or to enforce this Mortgage, or of any monies
held by the Mortgagee hereunder shall, to the maximum extent permitted by law,
be applied:
(i) first to the payment of all costs and expenses of such sale,
including the Mortgagee's attorneys' fees and disbursements;
(ii) then to the payment of all charges, expenses and advances
incurred or made by the Mortgagee in order to protect the lien and estate
of this Mortgage or the security afforded hereby;
(iii) then to the payment in full of the Obligations, in
accordance with the Credit Agreements;
Mortgage
--------
- 23 -
and after payment in full of all Obligations any surplus remaining shall be paid
to the Mortgagor or to whomsoever may be lawfully entitled to receive the same.
(b) Liability for Deficiencies. No sale or other disposition of all or
any part of the Mortgage Estate pursuant to Section 4.01 shall be deemed to
relieve the Mortgagor of its obligations under the Credit Agreements or any
other Loan Instrument except to the extent the proceeds thereof are applied to
the payment of such obligations. If the proceeds of sale, collection or other
realization of or upon the Mortgage Estate are insufficient to cover the costs
and expenses of such realization and the payment in full of the Obligations, the
Mortgagor shall remain liable for any deficiency.
Section 4.03. Right to ▇▇▇. The Mortgagee shall have the right from
time to time to ▇▇▇ for any sums required to be paid by the Mortgagor under the
terms of this Mortgage as the same become due, without regard to whether or not
the Obligations shall be, or have become, due and without prejudice to the right
of the Mortgagee thereafter to bring any action or proceeding of foreclosure or
any other action upon the occurrence of any Event of Default existing at the
time such earlier action was commenced.
Section 4.04. Powers of the Mortgagee. The Mortgagee may at any time
or from time to time in accordance with the Credit Agreements renew or extend
this Mortgage or (with the agreement of the Mortgagor) alter or modify the same
in any way, or waive any of the terms, covenants or conditions hereof or
thereof, in whole or in part, and may release any portion of the Mortgage Estate
or any other security, and grant such extensions and indulgences in relation to
the Obligations, or release any person liable therefor as the Mortgagee may
determine without the consent of any junior lienor or encumbrancer, without any
obligation to give notice of any kind thereto, without in any manner affecting
the priority of the lien and estate of this Mortgage on or in any part of the
Mortgage Estate, and without affecting the liability of any other person liable
for any of the Obligations.
Section 4.05. Remedies Cumulative.
(a) Remedies Cumulative. No right or remedy herein conferred upon or
reserved to the Mortgagee is intended to be exclusive of any other right or
remedy, and each and every right and remedy shall be cumulative and in addition
to any other right or remedy under this Mortgage, or under applicable law,
whether now or hereafter existing; the failure of the Mortgagee to insist at any
time upon the strict observance or performance of any of the provisions of this
Mortgage or to exercise any right or remedy provided for herein or under
applicable law, shall not impair any such right or remedy nor be construed as a
waiver or relinquishment thereof.
(b) Other Security. To the maximum extent permitted by applicable law:
(i) the Mortgagee shall be entitled to enforce payment and performance of any of
the obligations of the Mortgagor and to exercise all rights and powers under
this Mortgage or under any Loan Instrument or any laws now or hereafter in
force, notwithstanding that some or all of the
Mortgage
--------
- 24 -
Obligations may now or hereafter be otherwise secured, whether by mortgage, deed
of trust, pledge, lien, assignment or otherwise; (ii) neither the acceptance of
this Mortgage nor its enforcement, whether by court action or pursuant to the
power of sale or other powers herein contained, shall prejudice or in any manner
affect the Mortgagee's right to realize upon or enforce any other security now
or hereafter held by the Mortgagee, it being stipulated that the Mortgagee shall
be entitled to enforce this Mortgage and any other security now or hereafter
held by the Mortgagee in such order and manner as the Mortgagee, in its sole
discretion, may determine; and (iii) every power or remedy given by the Credit
Agreements, this Mortgage or any of the other Loan Instruments to the Mortgagee,
or to which the Mortgagee is otherwise entitled, may be exercised, concurrently
or independently, from time to time and as often as may be deemed expedient by
the Mortgagee, and the Mortgagee may pursue inconsistent remedies.
Section 4.06. Waiver of Stay, Extension, Moratorium Laws; Equity of
Redemption. To the maximum extent permitted by law, the Mortgagor shall not at
any time insist upon, or plead, or in any manner whatever claim or take any
benefit or advantage of any applicable present or future stay, extension or
moratorium law, that may adversely affect the observance or performance of the
provisions of this Mortgage; nor claim, take or insist upon any benefit or
advantage of any present or future law providing for the valuation or appraisal
of the Mortgage Estate or any portion thereof prior to any sale or sales thereof
that may be made under or by virtue of Section 4.01; and the Mortgagor, to the
extent that it lawfully may, hereby waives all benefit or advantage of any such
law or laws. The Mortgagor for itself and all who may claim under it, hereby
waives, to the maximum extent permitted by applicable law, any and all rights
and equities of redemption from sale under the power of sale created hereunder
or from sale under any order or decree of foreclosure of this Mortgage and (if
an Event of Default shall have occurred) all notice or notices of seizure, and
all right to have the Mortgage Estate marshalled upon any foreclosure hereof.
The Mortgagee shall not be obligated to pursue or exhaust its rights or remedies
as against any other part of the Mortgage Estate and the Mortgagor hereby waives
any right or claim of right to have the Mortgagee proceed in any particular
order.
ARTICLE 5
Miscellaneous
-------------
Section 5.01. Release by the Mortgagee. Upon the termination of the
Commitments under and as defined in the Credit Agreements and the payment in
full of the Obligations, the Mortgagee shall release the lien of this Mortgage,
or upon the request of the Mortgagor, and at the Mortgagor's expense, assign
this Mortgage without recourse to the Mortgagor's designee, or to the person or
persons legally entitled thereto, by an instrument duly acknowledged in form for
recording.
Section 5.02. Notices. All notices, demands, consents, requests or
other communications that are permitted or required to be given by any party to
the other hereunder shall be in writing and given in the manner specified in
Section 10.01 of the Credit Agreements.
Mortgage
--------
- 25 -
Section 5.03. Amendments; Waivers; Etc. This Mortgage cannot be
modified, changed or discharged except by an agreement in writing, duly
acknowledged in form for recording, signed by the Mortgagor and the Mortgagee
with the consent of the requisite percentage of the Lenders as provided in the
Credit Agreements. For purposes hereof, a statement by the Mortgagee in any
modification or supplement to this Mortgage to the effect that such modification
or supplement has been consented to by the Lenders as provided in Credit
Agreements shall be conclusive evidence of such consent and it shall not be
necessary for a copy of such consent to be recorded with such modification or
supplement as a condition to such modification or supplement being recorded in
the appropriate real estate records.
Section 5.04. Successors and Assigns. This Mortgage applies to, inures
to the benefit of and binds the Mortgagor and the Mortgagee and their respective
successors and assigns and shall run with the Properties.
Section 5.05. Captions. The captions or headings at the beginning of
Articles, Sections and paragraphs hereof are for convenience of reference and
are not a part of this Mortgage.
Section 5.06. Severability. If any term or provision of this Mortgage
or the application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Mortgage, or the application of
such term or provision to persons or circumstances other than those as to which
it is invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Mortgage shall be valid and enforceable to the maximum extent
permitted by law. If any portion of the Obligations shall for any reason not be
secured by a valid and enforceable lien upon any part of the Mortgage Estate,
then any payments made in respect of the Obligations (whether voluntary or under
foreclosure or other enforcement action or procedure or otherwise) shall, for
purposes of this Mortgage (except to the extent otherwise required by applicable
law) be deemed to be made (i) first, in respect of the portion of the
Obligations not secured by the lien of this Mortgage, (ii) second, in respect of
the portion of the Obligations secured by the lien of this Mortgage, but which
lien is on less than all of the Mortgage Estate, and (iii) last, to the portion
of the Obligations secured by the lien of this Mortgage, and which lien is on
all of the Mortgage Estate.
Mortgage
--------
- 26 -
IN WITNESS WHEREOF, this Mortgage has been duly executed by the
Mortgagor as of the day and year first above written.
[NAME OF MORTGAGOR]
By
-------------------------------------
Title:
Signed and acknowledged
in the presence of:
------------------------------------
------------------------------------
Mortgage
--------
- 27 -
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this __ day of _______, 1999, before me, the undersigned, a notary public in
and for said state, personally appeared ______________, personally known to me
or proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument, and acknowledged to me that he/she
executed the same in his/her capacity and that by his/her signature on the
instrument the individual or the person upon behalf of which the individual
acted executed the instrument.
---------------------------
Notary Public
[SEAL]
Mortgage
--------
SCHEDULE I
DESCRIPTION OF FEE PROPERTY
---------------------------
The following land and premises located in ___________________ County,
____________:
[Insert metes and bounds description]
Schedule I
----------
SCHEDULE II
DESCRIPTION OF LEASE
--------------------
AND LEASEHOLD PROPERTY
----------------------
That certain [lease/lease agreement] dated as of ____________ __, 19__
between the Mortgagor [as successor by merger] [assignment] to ____________, a
[corporation] [partnership] duly organized and validly existing under the laws
of the State of _____________, as lessee, and __________, a [corporation]
[partnership] duly organized and validly existing under the laws of the State of
_____________, as lessor, and recorded in volume ___ at page ___ of the ________
Records of ________ County, __________ on ______________, 19__, and the
leasehold estate created thereby affecting the following land and premises
located in ______________ County, _________:
[Insert metes and bounds description]
Collateral Agency and Intercreditor Agreement
---------------------------------------------