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Exhibit 10(o)
MORTGAGE DEED, SECURITY AGREEMENT, AND
ASSIGNMENT OF LEASES AND RENTS
OPEN-END MORTGAGE OHIO-INCOME PROPERTY
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SUN TELEVISION AND APPLIANCES, INC.
an Ohio Corporation
Mortgagor
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to
THE CIT GROUP/BUSINESS CREDIT, INC., AS AGENT
Mortgagor
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DATED: As of April 2, 1997
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Premises Located at:
0000 Xxxx Xxxx
Xxxxxxxxx, Xxxx
Record and Return to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
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INDEX
Page
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1. Payment of Indebtedness and Performance of Covenants and Agreements .....................................4
2. Title to Property .......................................................................................4
3. Representations of Mortgagor ............................................................................4
4. Future Advances .........................................................................................4
5. Insurance ...............................................................................................5
6. Impositions .............................................................................................7
7. Deposits for Impositions and Insurance ..................................................................7
8. Maintenance and Alterations .............................................................................8
9. Leasing .................................................................................................8
10. Recording, Filing and Other Fees ........................................................................9
11. Taxes Imposed on Mortgagee and the Lenders ..............................................................9
12. Compliance with Laws, etc. ..............................................................................9
13. Inspection .............................................................................................10
14. Certificate of Mortgagor ...............................................................................10
15. Condemnation ...........................................................................................10
16. Restoration ............................................................................................11
17. Mortgagee's Right to Perform Mortgagor's Covenants .....................................................11
18. Due on Sale ............................................................................................12
19. Default ................................................................................................12
20. Appointment of Receiver ................................................................................12
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21. [Intentionally Omitted] ................................................................................13
22. Judicial Foreclosure ...................................................................................13
23. Sale in Parcels ........................................................................................13
24. Notice Upon Acceleration ...............................................................................14
25. Possession of Premises .................................................................................14
26. Expenses of Mortgagee and/or the Lenders ...............................................................14
27. Mortgagor's Waivers ....................................................................................14
28. Partial Foreclosure ....................................................................................15
29. No Waiver ..............................................................................................15
30. Attorneys' Fees ........................................................................................15
31. Rights Cumulative ......................................................................................15
32. Interest After Maturity ................................................................................15
33. No Credit for Taxes ....................................................................................15
34. Liens ..................................................................................................16
35. Change in Taxation .....................................................................................16
36. Assignment of Leases and Rents .........................................................................17
37. Security Agreement .....................................................................................18
38. No Release .............................................................................................18
39. Corporate Authority ....................................................................................19
40. Notices ................................................................................................19
41. Severability ...........................................................................................19
42. No Usury ...............................................................................................19
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43. No Representation by Mortgagee and/or any Lender .......................................................19
44. Consents ...............................................................................................19
45. Indemnification Against Liabilities ....................................................................20
46. No Oral Changes ........................................................................................20
47. Governing Law ..........................................................................................20
48. Construction ...........................................................................................20
49. Gender .................................................................................................21
50. Captions ...............................................................................................21
51. After Acquired Property ................................................................................21
52. Further Assurances .....................................................................................21
53. Certain Definitions ....................................................................................21
54. Successors and Assigns .................................................................................21
55. Environmental Laws .....................................................................................21
56. Credit Agreement .......................................................................................21
Schedule A - Description of the Land
Schedule B - Prior Liens
Schedule C - Leases
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OPEN-END MORTGAGE OHIO-INCOME PROPERTY
MORTGAGE DEED, SECURITY AGREEMENT, AND
ASSIGNMENT OF LEASES AND RENTS
THIS MORTGAGE DEED, SECURITY AGREEMENT, AND ASSIGNMENT OF LEASES AND
RENTS ("Mortgage") made as of this 2nd day of April, 1997 by SUN TELEVISION AND
APPLIANCES, INC., an Ohio corporation having an office at 0000 Xxxx Xxxx,
Xxxxxxxxx, Xxxx 00000 ("Mortgagor"), to THE CIT GROUP/BUSINESS CREDIT, INC., a
New York corporation having an office at 1211 Avenue of the Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, as Agent (such term and all other capitalized terms used but
not defined herein shall have the meanings assigned thereto in the Credit
Agreement referred to below) for itself and the other Lenders ("Mortgagee").
WITNESSETH:
WHEREAS, Mortgagor, Mortgagee, National City Commercial Finance, Inc.
as Co-Agent and the Lenders entered into a Revolving Credit Agreement dated as
of December 19, 1996 (the "Original Credit Agreement") pursuant to which
Mortgagee and the Lenders agreed to make loans ("Loans") to Mortgagor on a
revolving basis whereby sums will be advanced, repaid, and readvanced, in an
aggregate outstanding principal amount equal to the lesser of One Hundred
Million Dollars ($100,000,000) (the "Maximum Principal Amount") or the
Borrowing Base; and
WHEREAS, the obligation of Mortgagor to repay the unpaid principal
amount of the Loans made to it by each Lender and to pay interest thereon was
evidenced by a Note to each Lender dated as of December 19, 1996 (collectively,
as the same may be amended, replaced, extended, supplemented, substituted,
severed, consolidated, increased, restated or modified from time to time, the
"Notes"); and
WHEREAS, Mortgagor has requested an increase of Five Million Dollars
($5,000,000) in the current Borrowing Base as a bridge facility (as defined in
the Credit Agreement, the "Bridge Facility"), which Bridge Facility shall not
increase the Maximum Principal Amount, and Mortgagee and the Lenders are
willing to accommodate such request upon the terms and conditions set forth in
an amendment to the Original Credit Agreement; and
WHEREAS, Mortgagor, Mortgagee, the Co-Agent and the Lenders have
entered into a Third Amendment Agreement (the "Amendment") dated as of the date
hereof to provide for the Bridge Facility, the terms and conditions therefore
and certain other modifications to the Original Credit Agreement (the Original
Credit Agreement and the Amendment, collectively, as the same may be amended,
replaced, extended, supplemented, substituted, severed, consolidated,
increased, restated or modified from time to time, the "Credit Agreement"); and
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WHEREAS, in order to induce Mortgagee and the Lenders to make the
financial accommodations provided for in the Credit Agreement, including,
without limitation, the Bridge Facility, Mortgagor has agreed to execute and
deliver to Mortgagee this Mortgage; and
WHEREAS, the Credit Agreement, all Loans thereunder, including,
without limitation, the Bridge Facility, and all of the Notes evidencing the
same, and all sums, amounts, and expenses paid by Mortgagee and/or the Lenders
hereunder, thereunder or under any of the other Loan Documents, and all other
Obligations, together with all interest thereon, and all other fees,
obligations, liabilities, covenants, sums, amounts and expenses due Mortgagee
and the Lenders under the Credit Agreement, this Mortgage or any other Loan
Documents (all of the aforesaid, including but not limited to the aggregate
maximum principal amount of ONE HUNDRED MILLION DOLLARS ($100,000,000),
collectively being hereinafter referred to as the "Indebtedness") are secured
by, among other things, this Mortgage, and the terms, covenants and conditions
of the Credit Agreement and the Notes are incorporated herein and are hereby
made a part hereof.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS that in order to secure
the Indebtedness and in consideration of the foregoing premises including,
without limitation, the Bridge Facility in the sum of FIVE MILLION DOLLARS
($5,000,000) in hand well and truly paid by Mortgagee, the receipt of which is
hereby acknowledged, Mortgagor by these presents does mortgage, warrant, grant,
bargain, sell, convey, alien, release, transfer and confirm unto Mortgagee, and
to its successors and assigns forever, the following (collectively, the
"Property"):
A. All that certain land located in Groveport, Ohio, and more
particularly described in Schedule A annexed hereto and made a part hereof (the
"Land").
B. All the buildings, structures and improvements, now or at any time
hereafter erected on the Land or any part thereof (collectively, the
"Buildings").
C. All machinery, apparatus, equipment, personal property and fixtures
of every kind and nature whatsoever now or hereafter located in, on or about
the Buildings or upon the Land, or attached to or used or usable in connection
with the operation or maintenance of the Land or the Buildings, or any part
thereof, and now owned or hereafter acquired (collectively, the "Building
Equipment"; and the Land, the Buildings and the Building Equipment being
hereafter sometimes collectively referred to as the "Premises").
D. All right, title and interest of Mortgagor, whether now owned or
hereafter acquired, in and to any opened or proposed xxxxxxx, xxxxxxx, xxxxx,
public places, sidewalks, alleys, strips or gores of land, in front of or
adjoining the Land or the Buildings, and all easements, tenements,
hereditaments, appurtenances, rights and rights of way, public or private,
pertaining or belonging to the Land or the Buildings.
E. Subject to the terms and provisions of the Credit Agreement, all
insurance proceeds and all awards and payments, including interest thereon, and
the right to receive the same, which
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may be made in respect of all or any part of the Premises or any estate or
interest therein or appurtenant thereto, as a result of damage to or
destruction of all or any part of the Premises, the exercise of the right of
condemnation or eminent domain, the closing of, or the alteration of the grade
of, any street on or adjoining the Land, or any other injury to or decrease in
the value of all or any part of the Premises.
F. All right, title and interest of Mortgagor in and to any and all
present and future Leases (as defined in Paragraph 53) of all or any part of
the Premises, and in and to the rents, issues and profits payable thereunder
and cash or securities deposited thereunder as lessees' security deposits.
G. All franchises, permits, licenses and rights therein respecting the
use, occupation and operation of the Premises or the activities conducted
thereon or therein.
H. All right, title and interest of Mortgagor in and to any minerals,
oil or gas located on, under or appurtenant to the Land.
I. All right, title and interest of Mortgagor in and to any tax
refunds with respect to the Premises.
J. The rents, royalties, revenue, income, issues and profits of any of
the foregoing.
TO HAVE AND TO HOLD the Property unto Mortgagee, its successors, heirs and
assigns, forever.
In addition to any other debt or obligation which this Mortgage may
secure, this Mortgage shall secure unpaid balances of advances made with
respect to the Premises, after this Mortgage is delivered to the Recorder for
record, pursuant to the provisions of Ohio Revised Code Section 5301.233, for
the payment of taxes, assessments, insurance premiums, or costs incurred for
the protection of the Premises.
This Mortgage shall secure unpaid balances of revolving loan advances
or future advances made by Mortgagee at the request of Mortgagor pursuant to
the terms of the Credit Agreement after this Mortgage is delivered to the
Recorder for recording pursuant to the provisions of Ohio Revised Code Section
5301.232, to the extent that such unpaid balances or future advances in the
aggregate and exclusive of interest accrued thereon, do not exceed the maximum
amount of One Hundred Million Dollars ($100,000,000) at any time.
Provided, that if Mortgagor shall pay the Bridge Facility in full at the time
and in the manner provided in the Credit Agreement, and there shall then exist
no Event of Default under the Credit Agreement, Mortgagee shall promptly
deliver to Mortgagor a satisfaction of this Mortgage in proper and recordable
form.
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AND MORTGAGOR COVENANTS, REPRESENTS AND WARRANTS TO AND WITH MORTGAGEE
AS FOLLOWS:
1. Payment of Indebtedness and Performance of Covenants and
Agreements. Mortgagor shall pay the Indebtedness when due in accordance with
the provisions of the Notes, the Credit Agreement, this Mortgage and the other
Loan Documents, and perform the covenants and agreements of Mortgagor set forth
in the Loan Documents.
2. Title to Property. Mortgagor represents and warrants that (a) it
owns good and marketable fee simple title to the Premises, (b) it has the good
and unrestricted right, full power and lawful authority to mortgage the
Property in accordance with the terms hereof, (c) Mortgagor has obtained any
and all consents and approvals necessary or required for the making of this
Mortgage, and the making of this Mortgage will not violate any contract or
agreement to which Mortgagor is a party or by which the Property is bound, and
(d) the Property is free of all liens, encumbrances, adverse claims and other
defects of title whatsoever except those items (the "Prior Liens") listed on
Schedule B annexed hereto and made a part hereof. Mortgagor does hereby and
shall forever warrant and defend its title to and interest in the Property and
the validity and priority of the lien of this Mortgage, to Mortgagee, its
successors and assigns, against all claims and demands whatsoever of any Person
or Persons. There are no defenses or offsets to this Mortgage or to the
Indebtedness.
3. Representations of Mortgagor. Mortgagor covenants, represents and
warrants to Mortgagee and the Lenders that (a) the Buildings currently erected
on the Land and the use thereof comply in all material respects with applicable
zoning and building codes, ordinances and regulations, and such compliance is
based solely upon Mortgagor's owning the Property and not upon title to or
interest in any other property, and all material permits, approvals and
certificates have been obtained and are in full force and effect, (b) any
building hereafter constructed on the Land shall comply in all material
respects with applicable zoning and building codes, ordinances and regulations
and shall lie wholly within the boundaries of the Land, (c) the Buildings shall
at all times be independent and self-contained operating units, and (d) the
Land shall at all times be a separate tax lot.
4. Future Advances. Without limiting the generality of any other
provision hereof, the Indebtedness shall include: (a) all existing indebtedness
of Mortgagor to Mortgagee and/or the Lenders evidenced by any of the Loan
Documents; (b) all future advances that may subsequently be made by Mortgagee
and/or the Lenders as provided by any of the Loan Documents; and (c) all other
indebtedness, if any, of Mortgagor to Mortgagee and/or the Lenders now due or
to become due or hereafter contracted pursuant to any of the Loan Documents.
5. Insurance.
(a) Mortgagor shall keep the Buildings and the Building
Equipment insured for the benefit of Mortgagee against loss or damage by fire,
casualty and such other hazards in accordance with Sections 6.21 and 7.07 of
the Credit Agreement and as Mortgagee shall reasonably
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require from time to time, and Mortgagor shall maintain such other insurance as
Mortgagee shall reasonably require from time to time, including, without
limitation, (1) insurance against loss of rents and/or other business
interruption insurance, (2) insurance against loss customarily included under
standard "all-risk" policies including flood, earthquake, vandalism and
malicious mischief, and other insurable hazards as, under good insurance
practices, are insured against for other properties similar in location, use,
height, type of construction, fixtures, furnishings and equipment, (3)
comprehensive boiler and machinery insurance covering all mechanical and
electrical equipment against physical damage, rent loss and improvements loss
on a replacement cost basis, (4) general public liability insurance, including,
without limitation, commercial general liability insurance and umbrella
liability coverage for personal injury, bodily injury, death, accident and
property damage, (5) workers' compensation and disability insurance as required
by law for all employees at the Premises and (6) such other types of insurance
with respect to the Premises and the operation thereof which are fixtures,
furnishings and equipment, all in such amounts and for such periods as
Mortgagee shall reasonably require, in accordance with the Credit Agreement.
The policies of insurance required by this Paragraph 5(a) shall be with
companies and in forms reasonably approved by Mortgagee in accordance with
Sections 6.21 and 7.07 of the Credit Agreement or as otherwise approved by
Mortgagee, and proceeds thereunder shall be payable and applied in accordance
with Section 7.07 of the Credit Agreement and Section 5(c) hereof. The original
or duplicate original policies (or if the same shall be unattainable, memoranda
or certificates of insurance of the issuer of such policies) and, at least 30
days prior to the expiration thereof, binders evidencing the renewals thereof
accompanied by proof of payment shall be delivered to and held by Mortgagee,
and on demand of Mortgagee, Mortgagor shall assign to Mortgagee said policies
of insurance as additional security for the payment of the Indebtedness. Any
insurance required by this Mortgage may be part of a blanket policy maintained
by Mortgagor, provided that such blanket policy provides for an allocation of
the coverage amount thereunder to the Buildings and the Building Equipment in
amounts required by the provisions of this Paragraph, that any such blanket
policy otherwise complies with the provisions of this Paragraph, and that the
protection afforded thereunder shall not be less than that which would have
been afforded under a separate policy with respect to the same insured risks.
All insurance policies required to be effected by this Mortgage shall (1)
include effective waivers by the insurer of all rights of subrogation against
any named insured, the Indebtedness secured by this Mortgage and the Property
and all claims for insurance premiums against Mortgagee and the Lenders, (2)
provide that no cancellation, reduction in amount or substantial modification
in coverage thereof shall be effective until at least thirty (30) days after
receipt by Mortgagee of written notice thereof, (3) include "replacement cost
endorsements" if available, and (4) be reasonably satisfactory in all other
respects to Mortgagee. If Mortgagor fails to insure the Buildings or the
Building Equipment, or both, or to deliver or assign the policies, as required
by the provisions of this Paragraph, Mortgagee may, at its option, effect such
insurance, pay the premiums therefor and notify Mortgagor thereof, and the
amounts paid by Mortgagee, with interest from the time of payment by Mortgagee,
at the Applicable Rate (as defined in Paragraph 53), shall, on demand, be
immediately due from Mortgagor to Mortgagee and shall be added to and included
in the Indebtedness and shall be secured by this Mortgage.
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(b) Subject to the terms and provisions of the Credit
Agreement, Mortgagee shall have the right but not the obligation, on behalf of
Mortgagor, to adjust and compromise any claims under such insurance, collect
and receive the proceeds thereof and execute and deliver all proofs of loss,
receipts, vouchers and releases in connection with such claims. Subject to the
terms and provision of the Credit Agreement, Mortgagor shall not adjust or
compromise any claims under such insurance, without the prior written consent
of Mortgagee, which consent shall not be unreasonably withheld. Mortgagee is
hereby irrevocably appointed attorney-in-fact for Mortgagor for such purposes,
and Mortgagor shall, upon request of Mortgagee, execute any proofs of loss,
receipts, vouchers and releases in connection with such claims.
(c) Subject to the terms and provisions of the Credit
Agreement, Mortgagee may deduct from the proceeds of the insurance required to
be obtained by Mortgagor pursuant to Paragraph 5(a), any expenses, including,
without limitation, attorneys' fees and disbursements (to the extent permitted
by law). The net proceeds, at Mortgagee's option, shall be applied toward
payment of the Indebtedness (whether or not due and payable) or shall be paid
over in whole or in part to pay or reimburse Mortgagor for the cost of
restoring or reconstructing the Building and the Building Equipment in a manner
and on conditions reasonably satisfactory to Mortgagee. Any application of such
insurance proceeds toward payment of the Indebtedness shall not be deemed a
waiver by Mortgagee or the Lenders of their respective rights to receive
payment of the balance of the Indebtedness in accordance with the provisions of
this Mortgage.
(d) In the event of a foreclosure of this Mortgage or other
action or proceeding taken by Mortgagee pursuant to this Mortgage, the
purchaser of the Premises shall succeed to all of the rights of Mortgagor,
including any right to unearned premiums, in and to all policies of insurance
which Mortgagor is required to maintain under Paragraph 5(a) and to all
proceeds of such insurance.
(e) Mortgagor shall not obtain or permit to be obtained
separate insurance concurrent in form or contributing in the event of loss with
the insurance Mortgagor is required to maintain under the provisions of
Paragraph 5(a) unless such insurance is in accordance with all of the
provisions of Paragraph 5(a) and unless Mortgagor gives Mortgagee notice of
such separate insurance at least 30 days prior to the effective date of the
policy or policies. Mortgagor shall, upon each and every request of Mortgagee,
furnish Mortgagee with an appraisal of the replacement value and the insurable
value of the Buildings and Building Equipment by an appraiser satisfactory to
Mortgagee.
(f) If the Land is located in an area which has been
identified by the Secretary of Housing and Urban Development as a flood hazard
area and in which flood insurance has been made available under the National
Flood Insurance Act of 1968, Mortgagor will keep the Buildings and Building
Equipment covered by flood insurance up to the maximum limit of coverage
available under said Act but not in excess of the amount of the replacement
cost of the Buildings.
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6. Impositions.
(a) Mortgagor shall pay, not later than the date on which
such amounts would be delinquent, all real estate taxes, personal property
taxes, assessments, water rates and sewer rents, license fees, all charges
which may be imposed for the use of vaults, chutes, areas and other space
beyond the lot line and abutting the public sidewalks in front of or adjoining
the Land, and any other amounts which could be or become a lien upon or against
the Property or any part thereof (collectively, the "Impositions"). Mortgagor
shall deliver to Mortgagee, within 20 days after the delinquency date of each
payment of any Imposition or Assessment, receipts evidencing such payment or
other proof of payment satisfactory to Mortgagee.
(b) Notwithstanding the provisions of Paragraph 6(a),
Mortgagor shall have the right in good faith, to contest by appropriate legal
proceedings, after notice to, but without cost or expense to, Mortgagee, the
amount or validity of any of the Impositions and to postpone the payment of
same, provided that: (i) such contest shall operate to prevent the collection
thereof or other realization thereon, the sale of the lien thereof, and the
sale or forfeiture of the Property or any part thereof, (ii) such contest shall
be promptly and diligently prosecuted by and at the expense of Mortgagor; (iii)
Mortgagee shall not thereby suffer any civil, or be subjected to any criminal,
penalties or sanctions; (iv) Mortgagor shall promptly, and in any event on
demand, pay such contested Imposition if at any time all or any part of the
Property shall be in danger of being foreclosed, sold, forfeited, or otherwise
lost or if such contest shall be discontinued; (v) Mortgagor shall properly
protect and hold harmless Mortgagee against any liability and claims arising
out of the postponement of the payment of such Imposition; and (vi) Mortgagor
shall deposit with Mortgagee, prior to commencing any such proceedings,
security reasonably satisfactory to Mortgagee, in an amount not less than the
amount of the Impositions to be contested and of any interest and additional
charges to be incurred as a result of such contest.
7. Deposits for Impositions and Insurance. After the occurrence of one
or more Defaults, then upon notice from Mortgagee, Mortgagor shall deposit with
Mortgagee on the first day of each month an amount equal to 1/12th of the
aggregate annual payments for (i) the Impositions, and (ii) the insurance
premiums on the policies of insurance required to be obtained and kept in force
by Mortgagor under this Mortgage. If the amounts of any Impositions are not
ascertainable at the time any deposit is required to be made, the deposit shall
be made on the basis of the amounts of the Impositions for the prior tax year
and, upon the amounts of the Impositions being fixed for the then current year,
Mortgagor shall, upon notice from Mortgagee, deposit any deficiency with
Mortgagee or if there is an overpayment, Mortgagee shall remit to Mortgagor
such amount. If the amounts of any insurance premiums are not ascertainable at
the time any deposit is required to be made, the deposit shall be made on the
basis of the amount of the insurance premiums for the prior year of the policy
or policies, and upon the amount of the insurance premiums being fixed for the
then current year of the policy or policies, Mortgagor shall, upon notice from
Mortgagee, deposit any deficiency with Mortgagee. If, on a date 30 days prior
to the delinquency date, there shall be insufficient funds on deposit with
Mortgagee for the payment of any of the Impositions or the insurance premiums,
Mortgagor shall, upon demand of Mortgagee, forthwith deposit the amount of such
deficiency with
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Mortgagee or if there is an overpayment, Mortgagee shall remit to Mortgagor
such amount. The funds deposited with Mortgagee shall constitute additional
collateral for the Indebtedness, shall be held by it without interest, and,
unless prohibited by law, may be commingled with other funds of Mortgagee, and
shall be applied in payment of the Impositions and insurance premiums when due
to the extent that Mortgagor shall have deposited funds with Mortgagee for such
purpose. In the event of any Default the funds deposited with Mortgagee may, at
the option of Mortgagee, be retained and applied toward the payment of any or
all of the Indebtedness, in such order of priority as is provided in the
Security Documents, but no such application shall be deemed to have been made
by operation of law or otherwise until actually made by Mortgagee. Mortgagor
shall furnish Mortgagee with a xxxx for each of the Impositions and insurance
premiums and/or such other documents necessary for its payment, if available,
at least 30 days prior to the date it first becomes due. Upon an assignment of
this Mortgage, Mortgagee shall have the right to pay over the balance of such
deposits in its possession to the assignee, and upon the making of such payment
Mortgagee and each Lender shall be completely released from all liability with
respect to such deposits and, provided such assignee has fully assumed all of
Mortgagee's liabilities, Mortgagor shall look solely to the assignee with
respect thereto. The provisions of the preceding sentence shall apply to each
and every assignment or transfer of such deposits to a new assignee.
8. Maintenance and Alterations.
(a) Mortgagor shall put, keep and maintain the Premises and
the sidewalks, curbs and alleys adjoining or abutting the same in good and
lawful order, condition and repair, and Mortgagor shall make or cause to be
made, as and when the same shall become necessary, all structural and
nonstructural repairs, whether exterior or interior, ordinary or extraordinary,
foreseen or unforeseen. Mortgagor shall not commit or suffer any waste of the
Premises and shall not demolish, alter, or remove or permit the demolition,
alteration, or removal of the Buildings or the Building Equipment, or any part
thereof, except to the extent and in the manner provided in the Credit
Agreement.
(b) Mortgagor shall not construct additions to all or part of
the Buildings or the Building Equipment or construct any new or additional
buildings on the Land without Mortgagee's prior written consent, which consent
shall not be unreasonably withheld.
9. Leasing. Except as set forth on Schedule C annexed hereto and made
a part hereof, Mortgagor represents that there are no Leases now in effect.
Mortgagor shall not enter into any Lease of all or any part of the Premises or
amend, renew, extend, abridge, cancel, terminate (or commence any summary
proceeding or other action in pursuance thereof), or otherwise modify any
Lease, or accept rent for a period of more than one month in advance, without
in each instance obtaining Mortgagee's prior written consent thereto. Mortgagor
shall deliver to Mortgagee a duplicate original of each Lease promptly after
the execution thereof. At the option of Mortgagee, each Lease, and all
renewals, replacements, extensions, and modifications thereof, and all rights
of the tenant thereunder, shall be subject and subordinate to this Mortgage,
and to each and every advance made or thereafter made hereunder or under the
Notes secured hereby and to all renewals,
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additions, supplements, modifications, consolidations, spreaders, replacements,
and extensions of this Mortgage and all future Leases shall contain provisions
obligating the lessees thereunder to attorn to Mortgagee or any purchaser
therefrom if Mortgagee or such purchaser succeeds to the interest of Mortgagor
under such Lease. Mortgagor shall fully and promptly perform all of the
obligations to be performed by the lessor under any and all Leases. Mortgagor
shall enforce the performance and observance of each and every obligation to be
performed or observed by the lessees under such Leases. Mortgagor shall give
prompt notice to Mortgagee of (a) any notice received by Mortgagor of any
default by the lessor under any Lease, (b) the commencement of any action or
proceeding by any tenant the purpose of which shall be the cancellation of any
Lease or a diminution or abatement of the rent payable thereunder, (c) any
notice of default given by Mortgagor to the tenant under any Lease, or (d) the
interposition by any tenant of any defense or counterclaim in any action or
proceeding brought by Mortgagor against such tenant; and Mortgagor will cause a
copy of any process, pleading or notice received or served by Mortgagor in
reference to any such action, defense or claim to be promptly delivered to
Mortgagee. Mortgagor shall hold in trust all security deposits and advance rent
given on account of any Lease, and deposit such security in a bank or trust
company and shall not mingle such funds with other funds. Mortgagor shall repay
or apply such funds only in accordance with the provisions of the applicable
Leases.
10. Recording, Filing and Other Fees. Mortgagor shall pay all
recording and filing fees, all recording taxes, and all other costs and
expenses in connection with the preparation, execution and recordation and
other manner of perfection of this Mortgage, and any other Loan Documents, and
shall reimburse Mortgagee and each Lender on demand for all reasonable costs
and expenses of any kind incurred by Mortgagee or such Lender in connection
therewith (including, without limitation, reasonable attorneys' fees and
disbursements, to the extent permitted by law). Mortgagor will, at any time on
request of Mortgagee, execute or cause to be executed financing statements,
continuation statements, security agreements, or the like, in respect of any
Building Equipment, and Mortgagor hereby irrevocably appoints Mortgagee as its
attorney-in-fact for such purposes. Mortgagor shall pay all filing fees,
including fees for filing continuation statements, in connection with such
financing statements.
11. Taxes Imposed on Mortgagee and the Lenders. Mortgagor shall pay
any taxes (except any income, inheritance and franchise taxes) imposed on
Mortgagee or any Lender by reason of its ownership of this Mortgage, the Notes
or any of the other Loan Documents.
12. Compliance with Laws. etc. Mortgagor shall promptly comply with,
or cause to be complied with, all present and future laws, statutes,
ordinances, rules, regulations and other requirements of all governmental
authorities relating to all or any part of the Property and the sidewalks,
curbs and alleys adjoining the Land, and the condition, repair, maintenance,
use and occupation thereof. Mortgagor shall obtain and keep in full force and
effect all franchises, permits, licenses and other certificates required in
connection with the use, occupation, and operation of the Premises and the
activities conducted thereon or therein. Mortgagor shall not use or permit the
use of the Premises in any manner which would tend to impair the value of the
Premises, violate any legal requirements or increase the risk of fire or other
casualty. Mortgagor shall advise Mortgagee
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promptly in writing of all written complaints and charges made by any
governmental authority affecting the Property or affecting Mortgagor or its
business which may impair the security of Mortgagee or any other Lender.
13. Inspection. Mortgagee and its authorized agents and employees
shall have the right, at Mortgagee's option, to enter the Premises at all
reasonable times and upon reasonable notice for the purpose of inspecting the
same.
14. Certificate of Mortgagor. Mortgagor, upon request of Mortgagee or
any Lender, shall certify to Mortgagee, such Lender or to any proposed assignee
of or participant in this Mortgage, by an instrument in form reasonably
satisfactory to Mortgagee or such Lender, duly acknowledged, the amount of the
Indebtedness then owing, the date to which any interest on the Indebtedness has
been paid and whether any offsets or defenses exist against payment of the
Indebtedness or performance of any of the covenants and agreements of Mortgagor
under the Loan Documents and anything else that Mortgagee or such Lender might
reasonably request, within 10 days if the request is made personally, or within
15 days if the request is made by mail. Mortgagee, each Lender and any actual
or proposed assignee of or participant in this Mortgage shall have the right to
rely on such certification.
15. Condemnation.
(a) Mortgagor shall give notice to Mortgagee upon Mortgagor's learning
of the threatened or actual commencement of any action or proceeding to take
all or any part of the Premises by exercise of the right of condemnation or
eminent domain or of any action or proceeding to close or to alter the grade of
any street on or adjoining the Land. Mortgagee may participate in any such
action or proceeding in the name of Mortgagee or, whenever necessary, in the
name of Mortgagor, and Mortgagor shall deliver to Mortgagee such instruments as
Mortgagee shall request to permit such participation. Mortgagor shall not
settle any such action or proceeding or agree to accept any award or payment
without the prior written consent of Mortgagee, which consent shall not be
unreasonably withheld, and such award or payment and any interest thereon less
the reasonable costs and expenses incurred by Mortgagor to obtain such award or
payment and/or to prevent such taking (hereinafter collectively called the
"Award") shall be paid to Mortgagee and the amount received shall be retained
and applied as provided in Paragraph 15(b).
(b) At Mortgagee's option any Award shall be applied toward payment of
the Indebtedness (whether or not due and payable) or shall be paid over in
whole or in part to pay or reimburse Mortgagor for the cost of restoring or
reconstructing the Building and the Building Equipment in a manner and on
conditions satisfactory to Mortgagee. In no event shall Mortgagee be required
to satisfy this Mortgage until the Indebtedness is fully paid and Mortgagee
shall not be required to release from the lien of this Mortgage any portion of
the Premises so taken until Mortgagee receives the Award for the portion so
taken.
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(c) The application of the Award toward payment of the Indebtedness
shall not be deemed a waiver by Mortgagee of its right to receive payment of
the balance of the Indebtedness in accordance with the provisions of the Loan
Documents. Mortgagee shall have the right, but shall be under no obligation, to
question the amount of the Award, and Mortgagee may accept same without
prejudice to the rights that Mortgagee may have to question such amount. In any
such condemnation or eminent domain action or proceeding Mortgagee may be
represented by attorneys selected by Mortgagee, and all sums reasonably paid by
Mortgagee in connection with such action or proceeding (including, without
limitation, attorneys' fees to the extent permitted by law) shall, on demand,
be immediately due from Mortgagor to Mortgagee and the same shall be secured by
this Mortgage.
(d) Notwithstanding any taking by condemnation or eminent domain,
closing of, or alteration of the grade of, any street or other injury to or
decrease in value of the Premises by any public or quasi-public authority or
corporation, the unpaid principal portion of the Indebtedness shall continue to
bear interest at the rate payable pursuant to the applicable Loan Documents
until the Award shall have been actually received by Mortgagee, and any
reduction in the Indebtedness, resulting from the application by Mortgagee of
the Award shall be deemed to take effect only on the date of such receipt.
16. Restoration. If the Buildings or the Building Equipment shall be
damaged or destroyed, in whole or in part, by fire or other casualty, or by any
taking in condemnation proceedings or the exercise of any right of eminent
domain, Mortgagor shall promptly restore, replace or rebuild the same to as
nearly as possible the value, quality and condition they were in immediately
prior to such fire or other casualty or taking, with such alterations or
changes as may be approved in writing by Mortgagee, which approval shall not be
unreasonably withheld or delayed. Mortgagor shall give prompt notice to
Mortgagee of any damage or destruction to the Buildings or Building Equipment
by fire or other casualty, as well as the initiation of any condemnation or
eminent domain proceeding affecting the same.
17. Mortgagee's Right to Perform Mortgagor's Covenants. If there shall
be a Default hereunder, Mortgagee may, at its option, cure such Default, and
Mortgagee and its representatives shall have the right to enter the Premises to
do so, and the amounts advanced by, and the other costs and expenses of,
Mortgagee in curing such default, with interest from the time of the advances
or payments at the Applicable Rate, shall, on demand, be immediately due from
Mortgagor to Mortgagee and shall be secured by this Mortgage.
18. Due on Sale.
(a) If Mortgagor enters into a contract to sell or sells, conveys,
alienates, assigns, or transfers the Property, or any part thereof or interest
therein in any manner other than as expressly permitted by the Credit
Agreement, whether voluntarily or involuntarily, directly or indirectly, or by
operation of law or otherwise, then Mortgagee shall have the right, at its
option, at any time thereafter to declare the entire principal then outstanding
under the Loan Documents (if not then due
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and payable), and all accrued and unpaid interest thereon, and all other
accrued sums and charges under the Loan Documents immediately due and payable.
No waiver of this right or delay in the exercise thereof shall operate as a
waiver thereof unless Mortgagee shall have executed and delivered to Mortgagor
a written waiver of such right.
(b) Except as otherwise provided in the Credit Agreement, any sale,
assignment, transfer, pledge or other disposition, whether voluntary or
involuntary, by operation of law or otherwise: (i) if Mortgagor or any general
partner of Mortgagor is a partnership, of any interest of any general partner
of Mortgagor or of any general partner of any general partner of Mortgagor, as
the case may be, or (ii) if Mortgagor or any general partner of Mortgagor is a
corporation, of 50% or more, in the aggregate, whether by one or more
transfers, of the outstanding voting stock of Mortgagor or such general
partner, or of any other corporation directly or indirectly owning or
controlling 50% or more of Mortgagor or such general partner, shall be deemed
to be a transfer of the Property for the purposes of this Paragraph 18.
19. Default. The entire principal then outstanding under the Loan
Documents (if not then due and payable), and all accrued and unpaid interest
thereon, and all other accrued sums and charges under the Loan Documents shall
become immediately due and payable at the option of Mortgagee after the
occurrence of one or more of the following events (each a "Default"): (a)upon
the occurrence and continuance of any "Event of Default" (as such term is
defined in the Credit Agreement) under the Credit Agreement; or (b) upon the
failure of Mortgagor to observe or perform any other monetary (other than the
payment of installments of principal and interest) or nonmonetary covenants or
agreements of Mortgagor hereunder, which in the case of such monetary payments
shall be continuing for a period of 14 days after the giving of written notice
to Mortgagor, and which in the case of non-monetary covenants or agreements
shall be continuing for a period of 30 days after the giving of written notice
to Mortgagor, or such longer period, not to exceed 90 days, as shall be
required if such failure cannot with due diligence be cured within such 30
days, provided Mortgagor commences within such 30 days and thereafter proceeds
diligently to cure.
20. Appointment of Receiver. After the occurrence of one or more
Defaults Mortgagee may apply for the appointment of a receiver of the Property,
the Premises and/or the rents, royalties, revenue, income, issues, and profits
of all or any part of the Property from whatever source derived and thereupon
it is hereby expressly covenanted and agreed that the court shall forthwith
appoint such receiver with the usual powers and duties of receivers in like
cases; and, to the extent permitted by law, said appointment shall be made by
the court ex parte as a matter of strict right to Mortgagee, without notice to
or demand upon Mortgagor or any Person claiming through or under Mortgagor, and
Mortgagee shall be entitled to the appointment of such receiver as a matter of
right, to the extent not prohibited by applicable law, without consideration of
the value of the Property as security for the amounts due to Mortgagee or the
Lenders or the solvency of any Person liable for the payment of such amounts.
To the extent permitted by law, Mortgagor hereby specifically waives the right
to object to the appointment of a receiver as aforesaid and hereby expressly
consents that such appointment shall be made ex parte and without notice to
Mortgagor as an admitted equity and as a matter of absolute right to Mortgagee.
In order to maintain and preserve the Property and to
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prevent waste and impairment of its security, Mortgagee may, at its option,
advance monies to the appointed receiver and all such sums advanced shall
become secured obligations and shall bear interest from the date of such
advance at the Applicable Rate.
21. [Intentionally Omitted].
22. Judicial Foreclosure. After the occurrence of one or more
Defaults, Mortgagee may institute an action of mortgage foreclosure, or take
such other action as the law may allow, at law or in equity, for the
enforcement hereof and realization on the Property or any other security which
is herein or elsewhere provided for, and proceed thereon to final judgment and
execution thereon for the entire principal then outstanding under the Loan
Documents at the rate stipulated in the applicable Loan Documents to the date
of default and thereafter at the Applicable Rate together with all other sums
secured by this Mortgage, all costs of suit, including, without limitation, the
expenses which are described in Paragraphs 26 and 30, and interest at the
Applicable Rate on any judgment obtained by Mortgagee from and after the date
of any judicial sale of the Property until actual payment. At any such sale
Mortgagee and the Lenders may bid for and acquire the Property or any part
thereof and in lieu of paying cash therefor may make settlement for the
purchase price by crediting upon the principal then outstanding under the Loan
Documents with interest thereon and other obligations of Mortgagor secured by
this Mortgage the net sales price after deducting therefrom the expenses of the
sale and the costs of the action and any other sums which Mortgagee is
authorized to deduct under this Mortgage. To the extent permitted by law, the
proceeds of such sale shall be applied first to the payment of the costs and
charges of such sale, including, without limitation, Mortgagee's reasonable
attorneys' fees (to the extent permitted by law), and second to the payment of
the Obligations as provided for in the Loan Documents. Upon the request of
Mortgagee and to the extent not prohibited by applicable law, Mortgagor shall
execute and file with the clerk of the court a legally sufficient waiver of any
statutory waiting period with respect to the execution of a judgment obtained
by Mortgagee in connection with any foreclosure proceedings. The obligation of
Mortgagor to so execute and file such waiver shall survive the termination of
this Mortgage.
23. Sale in Parcels. In the event of a foreclosure of this Mortgage or
upon any sale under this Mortgage pursuant to judicial proceedings or
otherwise, the Property may be sold in one parcel and as an entirety or in such
parcels, manner or order as Mortgagee in its sole discretion may select.
24. Notice Upon Acceleration. Whenever Mortgagee in this Mortgage is
given the option to accelerate the maturity of all or part of the Indebtedness
and any accrued interest upon the occurrence of one or more Defaults, Mortgagee
may, to the extent permitted by law, do so without prior notice or demand to or
upon Mortgagor except as otherwise specifically provided herein or in the
Credit Agreement.
25. Possession of Premises. To the extent permitted by law, after the
occurrence of a Default, Mortgagee and its agents and any receiver appointed by
a court are authorized to (a) take possession of the Premises, by such legal
action, if any, as shall be required by law; (b) lease the
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Premises or make modifications to or cancel leases; (c) maintain, repair,
alter, and restore the Premises; (d) collect all rents, issues, income and
profits payable under all Leases directly from the lessees thereunder upon
notice to each such lessee that a Default exists under this Mortgage
accompanied by a demand on such lessee for the payment to Mortgagee of all
rents due and to become due under its Lease, and Mortgagor FOR THE BENEFIT OF
MORTGAGEE AND EACH SUCH LESSEE hereby covenants and agrees that the lessee
shall be under no duty to question the accuracy of Mortgagee's statement of
default and shall unequivocally be authorized to pay said rents to Mortgagee
without regard to the truth of Mortgagee's statement of default and
notwithstanding notices from Mortgagor disputing the existence of a Default
such that the payment of rent by the lessee to Mortgagee pursuant to such a
demand shall constitute performance in full of the lessee's obligation under
the Lease for the payment of rents by the lessee to Mortgagor; and (e) after
deducting all costs of collection and administration expense, apply the net
rents and profits to the payment of Impositions, insurance premiums and all
other carrying charges (including, without limitation, agents' compensation and
fees and reasonable costs of counsel, to the extent permitted by law, and
receivers) and to the maintenance, repair or restoration of the Premises, or on
account and in reduction of the Indebtedness in such order and amounts as
Mortgagee in Mortgagee's sole discretion may elect. Mortgagee shall be liable
to account only for rents and profits actually received by Mortgagee.
26. Expenses of Mortgagee and/or the Lenders. All sums (including
attorneys' fees and disbursements, to the extent permitted by law) paid by
Mortgagee or any Lender in connection with any litigation to prosecute or
defend the rights and obligations created by this Mortgage, with interest
thereon at the Applicable Rate from the time of payment by Mortgagee or such
Lender, shall, on demand, be immediately due from Mortgagor to Mortgagee or
such Lender and shall be added to and included in the Indebtedness and shall be
secured by this Mortgage.
27. Mortgagor's Waivers. Mortgagor, for itself and its successors and
assigns, hereby irrevocably waives and releases, to the extent permitted by
law, and whether now or hereafter in force, (a) the benefit of any and all
valuation and appraisement laws, (b) any right of redemption whether statutory
or otherwise, in respect of the Property, (c) any applicable homestead or dower
laws, and (d) all exemption laws whatsoever and all moratoriums, extensions or
stay laws or rules, or orders of court in the nature of any one or more of
them.
28. Partial Foreclosure. Mortgagee may from time to time, if permitted
by law, take action to recover any sums, whether interest, principal or any
other sums, required to be paid under this Mortgage or any other Loan Document
as the same become due, without prejudice to the right of Mortgagee thereafter
to bring an action of foreclosure, or any other action, for a default or
defaults by Mortgagor existing when such earlier action was commenced.
Mortgagee may also foreclose this Mortgage for any sums due under this Mortgage
or any other Loan Document and the lien of this Mortgage shall continue to
secure the balance of the Indebtedness.
29. No Waiver. Any failure by Mortgagee or any Lender to insist upon
the strict performance by Mortgagor of any of the covenants and agreements of
Mortgagor under the Loan
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Documents shall not be deemed to be a waiver of any of such covenants or
agreements, and Mortgagee and each Lender, notwithstanding any such failure,
may thereafter insist upon the strict performance by Mortgagor of any and all
of such covenants or agreements.
30. Attorneys' Fees. If this Mortgage shall be foreclosed, or if any
of the Loan Documents is placed in the hands of an attorney for collection or
is collected through any court, including any bankruptcy court, there shall be
included in the computation of the sums secured hereby, to the extent permitted
by law, the amount of a reasonable fee for the services of the attorney
retained by Mortgagee in the foreclosure action or proceeding, non-judicial
sale and all disbursements, costs, allowances and additional allowances
provided by law.
31. Rights Cumulative. The rights and remedies provided for in this
Mortgage, or which Mortgagee or any Lender may have otherwise, at law or in
equity, shall, to the extent permitted by law, be distinct, separate and
cumulative and shall not be deemed to be inconsistent with each other, and none
of them, whether or not exercised by Mortgagee or any Lender, shall be deemed
to be in exclusion, of any other, and any two or more of all such rights and
remedies may be exercised at the same time, all to the extent permitted by law.
32. Interest After Maturity. The principal amount of the Indebtedness
and any other amounts secured by this Mortgage and, if permitted by law, any
accrued interest thereon, shall bear interest from and after maturity, whether
or not resulting from acceleration, at the Applicable Rate, but this shall not
constitute an extension of time for payment of the Indebtedness.
33. No Credit for Taxes. Mortgagor shall not claim or demand or be
entitled to any credit or credits on account of any of the sums secured hereby
by reason of the Impositions assessed against all or any part of the Property
or for any payments made on account thereof. No deductions shall be made or
claimed from the taxable value of all or any part of the Premises by reason of
this Mortgage.
34. Liens.
(a) This Mortgage is and shall be maintained as a valid first
lien on the Property subject only to any encumbrances created pursuant to the
Loan Documents and the Prior Liens, if any. Except as permitted by the Credit
Agreement, Mortgagor shall not, directly or indirectly, create or suffer or
permit to be created, or to stand, against the Property or any portion thereof,
or against the rents, royalties, revenue, income, issues and profits therefrom,
any lien, charge, mortgage, deed of trust, adverse claim or other encumbrance
(herein collectively referred to as a "lien"), whether senior or junior in lien
to this Mortgage, other than the lien of (i) this Mortgage, (ii) the Prior
Liens and (iii) any other liens created pursuant to the Loan Documents;
provided, however, that nothing contained in this Paragraph 34 shall require
Mortgagor to pay any real estate taxes or other Impositions prior to the time
when same are required to be paid under this Mortgage. Except as expressly
permitted by the Credit Agreement, Mortgagor will keep and maintain the
Premises free from all liens of Persons supplying labor or materials relating
to the construction, alteration,
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modification or repair of the Premises. Except as expressly permitted by the
Credit Agreement, if any such lien shall be filed against the Premises,
Mortgagor agrees to discharge the same of record (by payment, bonding, or
otherwise) within 14 days after the filing thereof. Except as expressly
permitted by the Credit Agreement, no financing statement, conditional xxxx of
sale or chattel mortgage shall be made or filed against the Building Equipment
without the prior consent of Mortgagee and if at any time there should be any
(with or without the consent of Mortgagee), then in the event of any Default,
all right, title and interest of Mortgagor in and to all deposits and payments
made thereon are hereby assigned to Mortgagee.
(b) Notwithstanding the provisions of Paragraph 34(a),
Mortgagor shall have the right in good faith, to contest by appropriate legal
proceedings, after notice to, but without cost or expense to, Mortgagee, the
validity. of any liens arising in connection with the Property and to postpone
the payment of same, provided that: (i) such contest shall operate to prevent
the collection thereof or other realization thereon, the sale of the lien
thereof, and the sale or forfeiture of the Property or any part thereof; (ii)
such contest shall be promptly and diligently prosecuted by and at the expense
of Mortgagor; (iii) neither Mortgagee nor any Lenders shall thereby suffer any
civil, or be subjected to any criminal, penalties or sanctions; (iv) Mortgagor
shall promptly, and in any event on demand, pay such contested lien if at any
time all or any part of the Property shall be in danger of being foreclosed,
sold, forfeited, or otherwise lost or if such contest shall be discontinued;
(v) Mortgagor shall properly protect and hold harmless Mortgagee and the
Lenders against any liability and claims arising out of the postponement of the
payment of such lien; and (vi) Mortgagor shall deposit with Mortgagee, prior to
commencing any such proceedings, security reasonably satisfactory to Mortgagee,
in an amount sufficient to pay or otherwise discharge such contested lien and
of any interest or additional charges incurred as a result of such contest.
35. Change in Taxation. In the event of the enactment of or change in
(including, without limitation, a change in interpretation of) any applicable
law (a) deducting or allowing Mortgagor to deduct from the value of the
Property for the purpose of taxation any lien or security interest thereon, (b)
imposing, modifying or deeming applicable any reserve or special requirement
against deposits in or for the account of, or loans by, or other liabilities
of, or other assets held by Mortgagee or any Lender, or (c) subjecting
Mortgagee or any Lender to any tax or changing the basis of taxation of
mortgages, deeds of trust, or other liens or debts secured thereby, or the
manner of collection of such taxes, in each such case, so as to affect this
Mortgage, the Indebtedness or Mortgagee or any Lender, and the result is to
increase the taxes imposed upon or the cost to Mortgagee or such Lender of
maintaining the Indebtedness or to reduce the amount of any payments receivable
hereunder or under the other Loan Documents, then, and in any such event,
Mortgagor shall, on demand, pay to Mortgagee for the account of Mortgagee or
such Lender such additional amounts as may be required to compensate for such
increased costs or reduced amounts, provided that if any such payment or
reimbursement shall be unlawful or would constitute usury under applicable law,
then Mortgagee may, at its option, declare the Indebtedness due and payable
upon 60 days' notice.
36. Assignment of Leases and Rents. Mortgagor absolutely and
unconditionally assigns to Mortgagee the rents, royalties, revenue, income,
issues and profits of the Premises as further
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security for the payment of the Indebtedness, and Mortgagor grants to Mortgagee
the right to enter the Premises for the purpose of collecting the same and to
let the Premises, or any part thereof, and to apply said rents, royalties,
revenue, income, issues and profits, after payment of all necessary charges and
expenses, on account of the Indebtedness. This assignment and grant shall
continue in effect for so long as this Mortgage has not been satisfied and
released pursuant to the terms hereof and of the Credit Agreement. Mortgagee
hereby waives the right to enter the Premises for the purpose of collecting
said rents, issues and profits, and Mortgagor shall be entitled to collect,
receive and use said rents, issues and profits, until the occurrence of one or
more Defaults. During the continuance of any Default, the right of Mortgagor to
collect, receive and use said rents, royalties, revenue, income, issues and
profits, shall be revoked forthwith. Mortgagor shall, from time to time after
request by Mortgagee, execute, acknowledge and deliver to Mortgagee, in form
reasonably satisfactory to Mortgagee, separate assignments effectuating the
foregoing. Neither Mortgagee nor any Lender shall be obligated to perform or
discharge any obligation or duty to be performed or discharged by Mortgagor
under any Lease or other agreement affecting all or any part of the Premises,
and Mortgagor hereby agrees to indemnify Mortgagee and each Lender for and hold
it harmless from, any and all liability arising from any such Lease or other
agreement or any assignments thereof, and no assignment of any such Lease or
other agreement shall place the responsibility for the control, care,
management or repair of all or any part of the Premises upon Mortgagee or any
Lender, nor make Mortgagee or any Lender liable for any negligence in the
management, operation, upkeep, repair or control of all or any part of the
Premises resulting in injury, death or property damage; provided, however,
Mortgagor shall have no obligation to indemnify the Mortgagee or any Lender for
its own gross negligence or willful misconduct. In addition, after the
occurrence of a Default and the giving of notice to Mortgagor, Mortgagor will
pay monthly in advance to Mortgagee, or to any receiver appointed to collect
said rents, royalties, revenue, income, issues and profits, the fair and
reasonable rental value for the use and occupancy of the Premises or of such
part thereof as may be in the possession of Mortgagor, and upon default in any
such payment will vacate and surrender the possession thereof to Mortgagee or
to such receiver, and in default thereof may be evicted by summary or other
proceedings. Without limiting the generality of any provision of this Paragraph
36, if a proceeding under Title 11 of the United States Code, as in effect from
time to time (the "Bankruptcy Code"), is commenced by or against Mortgagor,
then, pursuant to Section 552(b)(2) of the Bankruptcy Code, the security
interest granted by this Mortgage shall automatically extend to all rents,
royalties, revenue, income, issues and profits acquired by Mortgagor after the
commencement of the case and such rents, royalties, revenue, income, issues and
profits shall constitute cash collateral under Section 363(a) of the Bankruptcy
Code.
37. Security Agreement. It is the intention of the parties hereto that
this instrument shall constitute a Security Agreement within the meaning of the
Uniform Commercial Code as enacted in the state in which the Land is located
with respect to the personalty and fixtures comprising a part of the Property,
and that a security interest shall attach thereto for the benefit of Mortgagee
to further secure the Indebtedness. Mortgagor hereby authorizes Mortgagee to
file financing and continuation statements with respect to such collateral in
which Mortgagor has a mortgageable interest, without the signature of Mortgagor
whenever lawful, and upon request, Mortgagor shall promptly execute
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financing and continuation statements in form satisfactory to Mortgagee to
further evidence and secure Mortgagee's interest in such collateral, and shall
pay all filing fees in connection therewith. In the event of the occurrence of
one or more Defaults, Mortgagee, pursuant to the applicable provision of the
Uniform Commercial Code, and to the extent permitted thereby, shall have the
option of proceeding as to both real and personal property in accordance with
its rights and remedies in respect of the real property, in which event the
default provisions of the Uniform Commercial Code shall not apply. The parties
agree that in the event Mortgagee elects to proceed with respect to collateral
constituting personalty or fixtures separately from the real property, the
giving of five days' notice by Mortgagee, sent by an overnight mail service,
postage prepaid, to Mortgagor at its address referred to in Paragraph 40,
designating the place and time of any public sale or the time after which any
private sale or other intended disposition of such collateral is to be made,
shall be deemed to be reasonable notice thereof and Mortgagor waives any other
notice with respect thereto. Notwithstanding anything in Paragraph 56 to the
contrary, in the event of any inconsistency or conflict between the terms and
provisions of any Security Agreement and the terms and provisions of this
Paragraph 37, the terms and provisions of the Security Agreement shall control.
38. No Release. Neither Mortgagor nor any other Person now or
hereafter obligated for the payment of the Indebtedness or the performance of
all or any part of the covenants and agreements of Mortgagor under the Loan
Documents shall be released from paying such Indebtedness and performing such
covenants and agreements and the lien of this Mortgage shall not be affected by
reason of (a) the failure of Mortgagee to comply with any request of Mortgagor,
or of any other Person so obligated, to take action to foreclose this Mortgage
or otherwise enforce any of the provisions of this Mortgage or of any of the
covenants and agreements of Mortgagor under the Loan Documents, (b) the
release, regardless of consideration, of the whole or any part of the security
held for the Indebtedness, (c) the release, regardless of consideration, of the
obligations of any Person or Persons liable for payment of the Indebtedness, or
performance of the covenants and agreements of Mortgagor under the Loan
Documents, or (d) any agreement or stipulation extending the time of payment or
modifying the terms of any of the Loan Documents, and in the event of such
agreement or stipulation, Mortgagor and all such other Persons shall continue
to be liable under the Loan Documents, as amended by such agreement or
stipulation, unless expressly released and discharged in writing by Mortgagee.
39. Corporate Authority. Mortgagor represents and warrants that it has
taken all necessary and proper action, which has not been modified or revoked,
to enter into this Mortgage and that the execution and delivery of this
Mortgage by the individual who has signed this Mortgage on behalf of Mortgagor
has been duly authorized and is sufficient action to constitute this Mortgage
as a valid, binding and enforceable obligation of Mortgagor.
40. Notices. All notices, demands, consents, approvals, requests and
other communications provided for herein shall be in the form and manner as set
forth in Section 10.05 of the Credit Agreement.
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41. Severability. If any 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
provision to Persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of
this Mortgage shall be valid and enforceable to the fullest extent permitted by
law.
42. No Usury. If any payments required to be made under the Loan
Documents shall be in excess of the amounts allowed by law, the amounts of such
payments shall be reduced to the maximum amounts allowed by law and any
interest paid under or in connection with any of the Loan Documents in excess
of the maximum interest rate permitted by law shall be deemed payment in
reduction of the principal amount of the Indebtedness.
43. No Representation by Mortgagee and/or any Lender. By accepting or
approving anything required to be observed, performed or fulfilled, or to be
given to Mortgagee and/or any Lender pursuant to this Mortgage, including,
without limitation, any officer's certificate, balance sheet, statement of
profit and loss or other financial statement, survey, appraisal, plans for
alterations or restoration, or insurance policy, neither Mortgagee nor any such
Lender shall be deemed to have warranted or represented the sufficiency,
legality, effectiveness or legal effect of the same, or of any term, provision
or condition thereof, and such acceptance or approval thereof shall not be or
constitute any warranty or representation with respect thereto by Mortgagee
and/or any Lender.
44. Consents. If Mortgagor shall request Mortgagee's or any Lender's
approval or consent and Mortgagee or such Lender shall fail or refuse to give
such approval or consent, in respect of any matter where Mortgagee or any
Lender is required herein or under applicable law not to unreasonably withhold
its approval or consent, Mortgagor shall not be entitled to any damages for any
withholding by Mortgagee or any such Lender of its approval or consent, it
being intended that Mortgagor's sole remedy shall be an action for specific
performance or injunction to require such approval or consent.
45. Indemnification Against Liabilities. Mortgagor will protect,
indemnify, hold harmless and defend Mortgagee and each Lender and their
respective officers, directors, agents, servants, and employees from and
against any and all liabilities, obligations, claims, damages, penalties,
causes of action, costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses, to the extent permitted by law) imposed upon or
incurred by or asserted against Mortgagee and/or any Lender by reason of (a)
ownership of a mortgagee's or participating lender's interest in the Property,
(b) any accident or injury to or death of Persons or loss of or damage to or
loss of the use of property occurring on or about the Premises or any part
thereof or the adjoining sidewalks, curbs, vaults and vault spaces, if any,
streets, alleys or ways, (c) any use, nonuse or condition of the Premises or
any part thereof or the adjoining sidewalks, curbs, vaults and vault spaces, if
any, streets, alleys or ways, (d) any failure on the part of Mortgagor to
perform or comply with any of the terms of this Mortgage, (e) performance of
any labor or services or the furnishing of any materials or other property in
respect of the Premises or any part thereof made or suffered to be made by or
on behalf of Mortgagor, (f) any negligence or tortious act on the part of
Mortgagor
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or any of its respective agents, contractors, lessees, licensees or invitees,
or (g) any work in connection with any alterations, changes, new construction
or demolition of the Premises. All amounts payable to Mortgagee and/or any
Lender under this Paragraph 45 shall be payable on demand and shall be deemed
indebtedness secured by this Mortgage and any such amounts which are not paid
within 14 days after demand therefor by Mortgagee and/or such Lender shall bear
interest at the Applicable Rate from the date of such demand. In case any
action, suit or proceeding is brought against Mortgagor, Mortgagee or any
Lender by reason of any such occurrence, Mortgagor, upon request of Mortgagee
and/or any Lender, will, at Mortgagor's expense, resist and defend such action,
suit or proceeding or cause the same to be resisted or defended by counsel
designated by Mortgagor and reasonably approved by Mortgagee. Notwithstanding
the foregoing, Mortgagor shall have no obligation to indemnify Mortgagee or any
Lender for its own gross negligence or willful misconduct.
46. No Oral Changes. This Mortgage and its provisions cannot be
changed, waived, discharged or terminated orally but only by an agreement in
writing, signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
47. Governing Law. This Mortgage and the rights of the parties
hereunder shall be governed by the laws of the state in which the Land is
located without giving effect to conflict of laws principles.
48. Construction. This Mortgage shall be construed without regard to
any presumption or rule requiring construction against the party causing such
instrument or any portion thereof to be drafted.
49. Gender. All terms and words used in this Mortgage, regardless of
the number or gender in which they are used, shall be deemed to include any
other number and any other gender as the context may require.
50. Captions. The headings in this Mortgage and the index at the
beginning of this Mortgage are for convenience of reference only and shall not
limit or otherwise affect any of the terms hereof.
51. After Acquired Property. All property of every kind which is
hereafter acquired by Mortgagor which, by the terms hereof, is required or
intended to be subjected to the lien of this Mortgage shall, immediately upon
the acquisition thereof by Mortgagor, and without any further mortgage,
conveyance, assignment or transfer, become subject to the lien of this
Mortgage.
52. Further Assurances. Mortgagor shall execute, acknowledge and
deliver to Mortgagee any documents and instruments which Mortgagee may
reasonably request from time to time for the better assuring, conveying,
assigning, transferring, confirming or perfecting of Mortgagee's security and
rights under this Mortgage, in form and substance satisfactory to Mortgagee in
its sole and absolute discretion.
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53. Certain Definitions. The following terms shall, for all purposes
of this Mortgage, have the respective meanings herein specified unless the
context otherwise requires:
(a) The "Applicable Rate" shall mean the highest rate then
payable on any of the Obligations; and
(b) "Lease" shall mean every lease or occupancy agreement for
the use or hire of all or any portion of the Premises which shall be in effect
at the date hereof, or which shall hereafter be entered into by or on behalf of
Mortgagor.
54. Successors and Assigns. The terms, covenants and provisions of
this Mortgage shall apply to and be binding upon Mortgagor and the successors
and assigns of Mortgagor and shall enure to the benefit of Mortgagee, the
Lenders and their respective successors and assigns, but the provisions of this
Paragraph shall not be construed to modify the provisions of Paragraph 18. All
grants, covenants, terms, provisions, and conditions contained herein shall run
with the Land.
55. Environmental Laws. Mortgagor shall comply with or cause to be
complied with all Environmental Laws to the extent and in the same manner set
forth in the Credit Agreement.
56. Credit Agreement. In the event of any inconsistency or conflict
between the terms and provisions of the Credit Agreement and the terms and
provisions of this Mortgage, the terms and provisions of the Credit Agreement
shall control.
IN WITNESS WHEREOF, Mortgagor has hereunto set its hand and seal as of
the day and year first above written:
Mortgagor
Signed and Acknowledged SUN TELEVISION AND APPLIANCES,
INC.
in the Presence of.
/s/ X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------------- ----------------------------
Print: X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxx
---------------------------- Title: EVP/CEO
/s/ Xxxx X. Xxxxxx
----------------------------------
Print: Xxxx X. Xxxxxx
----------------------------
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STATE OF OHIO )
) SS:
COUNTY OF Franklin )
--------
BEFORE ME, a Notary Public in and for the aforesaid State and County,
personally appeared the above-named SUN TELEVISION AND APPLIANCES, INC., an Ohio
corporation, by Xxxxxx X. Xxxxxx, its CEO/EVP, known to me to be the person who
executed this instrument, who acknowledged that he did sign the foregoing
instrument and that the same is his free act and deed individually and the free
act and deed of Sun Television and Appliances, Inc.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
official seal this 2nd day of April, 1997 at Groveport, Ohio.
/s/ Xxxxxxx Xxxxxxxxx
-----------------------------
Notary Public
This instrument prepared by:
Xxxxx X. Xxxxxx, Esq.
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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