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OKLAHOMA
Prepared by and after recording, please return to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
a partnership which includes
professional corporations
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxxxx Xxxxxx Xxxxx, Esq.
MORTGAGE, ASSIGNMENT OF RENTS AND LEASES AND SECURITY AGREEMENT
from
TELEX COMMUNICATIONS, INC., Mortgagor
to
THE CHASE MANHATTAN BANK, as Administrative Agent, Mortgagee
DATED AS OF FEBRUARY 2, 1998
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OKLAHOMA
MORTGAGE, ASSIGNMENT OF RENTS
AND LEASES AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF RENTS AND LEASES AND SECURITY
AGREEMENT, dated as of February 2, 1998, is made by TELEX COMMUNICATIONS, INC.,
a Delaware corporation, formerly known as EV International, Inc. ("MORTGAGOR"),
whose address is 0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000 to THE CHASE
MANHATTAN BANK, a New York banking corporation whose address is 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, as Administrative Agent (in such capacity,
"MORTGAGEE") for the several banks and other financial institutions (the
"LENDERS") from time to time parties to the Credit Agreement dated as of May 6,
1997 among GST Acquisition Corp., Xxxxxx Xxxxxxx Senior Funding, Inc. ("XXXXXX
XXXXXXX") and Mortgagee, as amended by Amendment No. 1 dated as of February 2,
1998 (the "AMENDMENT") among Mortgagor, Xxxxxx Xxxxxxx and Mortgagee (as the
same may be further amended, supplemented, waived or otherwise modified from
time to time the "CREDIT AGREEMENT"). References to this "Mortgage" shall mean
this instrument and any and all renewals, modifications, amendments,
supplements, extensions, consolidations, substitutions, spreaders and
replacements of this instrument. Capitalized terms used and not otherwise
defined herein shall have the meanings assigned thereto in the Credit Agreement.
Background
A. Pursuant to an Exchange Agreement, dated as of January 30,
1998 (together with all other documents delivered in connection therewith, the
"TELEX/EVI MERGER DOCUMENTS"), EV International, Inc. ("EVI") and Telex
Communications, Inc., a Delaware corporation, have effectuated a merger of Telex
Communications, Inc. with and into EVI, with EVI continuing as the surviving
corporation, in the process changing its name to Telex Communications, Inc.
B. Mortgagor is the owner of the parcel(s) of real property
described on Schedule A attached hereto (such real property, together with all
of the buildings, improvements, structures and fixtures now or subsequently
located thereon (the "IMPROVEMENTS"), being collectively referred to as the
"REAL ESTATE").
C. Pursuant to the terms of the Credit Agreement, the Lenders
have agreed, among other things, to make the Loans and the Issuing Lender has
agreed to issue, and the L/C Participants have agreed to acquire undivided
participating interests in, the Letter(s) of Credit for the account of the
Borrower upon the terms and subject to the conditions set forth in the Credit
Agreement which conditions include the grant by Mortgagor to Mortgagee of a
first lien upon and perfected security interest in, among other things, all
estate, right, title and interest of Mortgagor in and to the Real Estate
pursuant to the terms hereof.
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D. It is a condition precedent to the effectiveness of the
Amendment that Mortgagor executes and delivers this Mortgage.
Granting Clauses
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Mortgagor agrees that to secure:
(a) the repayment of principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans
and Reimbursement Obligations and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Loan Party, whether
or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans (as they may be evidenced by the Notes from
time to time) and all other obligations (including the Reimbursement
Obligations) and liabilities of Mortgagor to Mortgagee, the Issuing
Lender and the Lenders, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred,
which may arise under, out of, or in connection with, the Credit
Agreement, the Loans, the Letters of Credit, the Security Documents,
any Guarantee Obligation of Mortgagor as to which any Lender is a
beneficiary, any Permitted Hedging Arrangement with any Lender or any
banking affiliate of any Lender (whether entered into directly, or
guaranteed by Mortgagor), the Guarantee and Collateral Agreement dated
as of May 6, 1997 between Telex Communications, Inc., Telex
Communications Group, Inc., TCI Holdings Corp. and Mortgagee (the
"GUARANTEE") or any other document made, delivered or given in
connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
or otherwise (including, without limitation, all fees, charges and
disbursements of counsel to the Administrative Agent, the Issuing
Lender or any Lender that are required to be paid by any Loan Party
pursuant to the Credit Agreement) (the items set forth above being
referred to collectively as the "INDEBTEDNESS"); and
(b) the performance of all covenants, agreements, obligations
and liabilities of Mortgagor (the "OBLIGATIONS") under or pursuant to
the provisions of the Credit Agreement, the Loans, this Mortgage, the
Guarantee, any other document securing payment of the Indebtedness (the
"SECURITY DOCUMENTS") and any amendments, supplements, extensions,
renewals, restatements, replacements or modifications of any of the
foregoing (the Credit Agreement, the Loans, the Letters of Credit, this
Mortgage, the Guarantee and all other documents and instruments from
time to time evidencing, securing or guaranteeing the payment of the
Indebtedness or the performance of the Obligations, as any of the same
may be amended, supplemented, extended, renewed, restated, replaced or
modified from time to time, are collectively referred to as the "LOAN
DOCUMENTS");
The Indebtedness includes Revolving Loans and Swing Line Loans under which
monies may be advanced by the Lenders, repaid by Mortgagor and subsequently
readvanced by the
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Lenders. All advances from time to time made under such Loans and remaining
outstanding will be secured by this Mortgage, notwithstanding that there may be
times when there are no principal balances outstanding under such Loans.
NOTWITHSTANDING THE FOREGOING, THE MAXIMUM PRINCIPAL AMOUNT OF OBLIGATIONS
SECURED BY THIS MORTGAGE SHALL NOT EXCEED $5,000,000.
MORTGAGOR HEREBY GRANTS TO MORTGAGEE A LIEN UPON AND A SECURITY
INTEREST IN, AND HEREBY MORTGAGES, CONVEYS, GRANTS, ASSIGNS,
TRANSFERS AND SETS OVER TO MORTGAGEE:
(A) the Real Estate;
(B) all the estate, right, title, claim or demand whatsoever
of Mortgagor, in possession or expectancy, in and to the Real Estate or
any part thereof,
(C) all right, title and interest of Mortgagor in, to and
under all easements, rights of way, gores of land, streets, ways,
alleys, passages, sewer rights, waters, water courses, water and
riparian rights, development rights, air rights, mineral rights and all
estates, rights, titles, interests, privileges, licenses, tenements,
hereditaments and appurtenances belonging, relating or appertaining to
the Real Estate, and any reversions, remainders, rents, issues, profits
and revenue thereof and all land lying in the bed of any street, road
or avenue, in front of or adjoining the Real Estate to the center line
thereof,
(D) all right, title and interest of Mortgagor in and to all
of the fixtures, chattels, business machines, machinery, apparatus,
equipment, furnishings, fittings and articles of personal property of
every kind and nature whatsoever, and all appurtenances and additions
thereto and substitutions or replacements thereof (together with, in
each case, attachments, components, parts and accessories) currently
owned or subsequently acquired by Mortgagor and now or subsequently
attached to, or contained in or used or usable in any way in connection
with any operation or letting of the Real Estate, including but without
limiting the generality of the foregoing, all screens, awnings, shades,
blinds, curtains, draperies, artwork, carpets, rugs, storm doors and
windows, furniture and furnishings, heating, electrical, and mechanical
equipment, lighting, switchboards, plumbing, ventilating, air
conditioning and air-cooling apparatus, refrigerating, and incinerating
equipment, escalators, elevators, loading and unloading equipment and
systems, stoves, ranges, laundry equipment, cleaning systems (including
window cleaning apparatus), telephones, communication systems
(including satellite dishes and antennae), televisions, computers,
sprinkler systems and other fire prevention and extinguishing apparatus
and materials, security systems, motors, engines, machinery, pipes,
pumps, tanks, conduits, appliances, fittings and fixtures of every kind
and description (all of the foregoing in this paragraph (D) being
referred to as the "EQUIPMENT");
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(E) all right, title and interest of Mortgagor in and to all
substitutes and replacements of, and all additions and improvements to,
the Real Estate and the Equipment, subsequently acquired by or released
to Mortgagor or constructed, assembled or placed by Mortgagor on the
Real Estate, immediately upon such acquisition, release, construction,
assembling or placement, including, without limitation, any and all
building materials to be used by Mortgagor whether stored at the Real
Estate or offsite, and, in each such case, without any further
mortgage, conveyance, assignment or other act by Mortgagor;
(F) all fight, title and interest of Mortgagor in, to and
under all leases, subleases, underlettings, concession agreements,
management agreements, licenses and other agreements relating to the
use or occupancy of the Real Estate or the Equipment or any part
thereof, now existing or subsequently entered into by Mortgagor and
whether written or oral and all guarantees of any of the foregoing
(collectively, as any of the foregoing may be amended, restated,
extended, renewed or modified from time to time, the "LEASES"), and all
rights of Mortgagor in respect of cash and securities deposited
thereunder and the right to receive and collect the revenues, income,
rents, issues and profits thereof, together with all other rents,
royalties, issues, profits, revenue, income and other benefits arising
from the use and enjoyment of the Mortgaged Property (as defined below)
(collectively, the "RENTS");
(G) all books and records relating to or used in connection
with the operation of the Real Estate or the Equipment or any part
thereof,
(H) all right, title and interest of Mortgagor, to the extent
assignable, in and to (i) all unearned premiums under insurance
policies now or subsequently obtained by Mortgagor relating to the Real
Estate or Equipment, (ii) any such insurance policies, (iii) all
proceeds of any such insurance policies (including title insurance
policies) including the right to collect and receive such proceeds,
subject to the provisions relating to insurance generally set forth
below, and (iv) all awards and other compensation, including the
interest payable thereon and the right to collect and receive the same,
made to the present or any subsequent owner of the Real Estate or
Equipment for the taking by eminent domain, condemnation or otherwise,
of all or any part of the Real Estate or any easement or other right
therein, subject to the provisions relating to condemnation awards
generally set forth below;
(I) all right, title and interest of Mortgagor, to the extent
assignable, in and to (i) all contracts from time to time executed by
Mortgagor or any manager or agent on its behalf relating to the
ownership, construction, maintenance, repair, operation, occupancy,
sale or financing of the Real Estate or Equipment or any part thereof
and all agreements relating to the purchase or lease of any portion of
the Real Estate or any property which is adjacent or peripheral to the
Real Estate, together with the right to exercise such options
(collectively, the "CONTRACTS"), (ii) all consents, licenses, building
permits, certificates of occupancy and other governmental approvals
relating to construction, completion, occupancy, use or operation of
the Real Estate or any part
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thereof (collectively, the "PERMITS") and (iii) all drawings, plans,
specifications and similar or related items relating to the Real Estate
(collectively, the "PLANS");
(J) any and all monies now or subsequently on deposit for the
payment of real estate taxes or special assessments against the Real
Estate or for the payment of premiums on insurance policies covering
the foregoing property or otherwise on deposit with or held by
Mortgagee as provided in this Mortgage;
(K) all accounts and revenues arising from the operation of
the Improvements; and
(L) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now
owned or held or subsequently acquired by Mortgagor and described in the
foregoing clauses (A) through (E) are collectively referred to as the
"PREMISES", and those described in the foregoing clauses (A) through (L) are
collectively referred to as the "MORTGAGED PROPERTY").
TO HAVE AND TO HOLD the Mortgaged Property and the rights and
privileges hereby mortgaged unto Mortgagee, its successors and assigns for the
uses and purposes set forth, until the Indebtedness is fully paid and the
Obligations fully performed or as otherwise expressly provided in the Section of
this Mortgage entitled "Release of Mortgage".
Terms and Conditions
Mortgagor further represents, warrants, covenants and agrees
with Mortgagee as follows:
1. Warranty of Title. Mortgagor warrants that Mortgagor has
good title to the Real Estate in fee simple and good title to the rest of the
Mortgaged Property, subject only to the matters that are set forth in Schedule B
of the title insurance policy or policies being issued to Mortgagee to insure
the lien of this Mortgage and Liens expressly permitted under the Credit
Agreement (collectively, the "PERMITTED EXCEPTIONS") and Mortgagor shall
warrant, defend and preserve such title and the lien of the Mortgage thereon
against all claims of all persons and entities. Mortgagor further warrants that
it has the right to mortgage the Mortgaged Property.
2. Payment of Indebtedness. Mortgagor shall pay the
Indebtedness at the times and places and in the manner specified in the Credit
Agreement and shall perform all the Obligations.
3. Requirements. (a) Mortgagor shall promptly comply with, or
cause to be complied with, and conform to all present and future laws, statutes,
codes, ordinances, orders, judgments, decrees, rules, regulations and
requirements, and irrespective of the nature of the
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work to be done, of each of the United States of America, any State and any
municipality, local government or other political subdivision thereof and any
agency, department, bureau, board, commission or other instrumentality of any of
them, now existing or subsequently created (collectively, "GOVERNMENTAL
AUTHORITY") which has jurisdiction over the Mortgaged Property and all
covenants, restrictions and conditions now or later of record which may be
applicable to any of the Mortgaged Property, or to the use, manner of use,
occupancy, possession, operation, maintenance, alteration, repair or
reconstruction of any of the Mortgaged Property, except to the extent that
failure to comply therewith, in the aggregate, would not reasonably be expected
to have a Material Adverse Effect. All present and future laws, statutes, codes,
ordinances, orders, judgments, decrees, rules, regulations and requirements of
every Governmental Authority applicable to Mortgagor or to any of the Mortgaged
Property and all covenants, restrictions, and conditions which now or later may
be applicable to any of the Mortgaged Property are collectively referred to as
the "LEGAL REQUIREMENTS".
(b) From and after the date of this Mortgage, except as
expressly permitted under the Credit Agreement or herein, Mortgagor shall not by
act or omission permit, other than Permitted Exceptions, any building or other
improvement on any premises not subject to the lien of this Mortgage to rely on
the Premises or any part thereof or any interest therein to fulfill any Legal
Requirement, and Mortgagor hereby assigns to Mortgagee any and all rights to
give consent for all or any portion of the Premises or any interest therein to
be so used. Mortgagor shall not by act or omission impair the integrity of any
of the Real Estate as a single zoning lot separate and apart from all other
premises. Mortgagor represents that each parcel of the Real Estate constitutes a
legally subdivided lot, in compliance with all subdivision laws and similar
Legal Requirements, except to the extent that failure to comply therewith, in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect. Any act or omission by Mortgagor which would result in a violation of
any of the provisions of this subsection shall be void.
4. Payment of Taxes and Other Impositions. (a) Except as
expressly permitted under the Credit Agreement, Mortgagor, prior to delinquency,
shall pay and discharge all taxes of every kind and nature (including, without
limitation, all real and personal property, income, franchise, withholding,
transfer, gains, profits and gross receipts taxes), all charges for any easement
or agreement maintained for the benefit of any of the Mortgaged Property, all
general and special assessments, levies, permits, inspection and license fees,
all water and sewer rents and charges and all other public charges even if
unforeseen or extraordinary, imposed upon or assessed against or which may
become a lien on any of the Mortgaged Property, or arising in respect of the
occupancy, use or possession thereof, together with any penalties or interest on
any of the foregoing (all of the foregoing are collectively referred to as the
"IMPOSITIONS"). Mortgagor shall within 30 days after the request of Mortgagee
deliver to Mortgagee (i) original or copies of receipted bills and cancelled
checks or other evidence of payment of such Imposition if it is a real estate
tax or other public charge and (ii) evidence acceptable to Mortgagee in its
reasonable discretion showing the payment of any other such Imposition. If by
law any Imposition, at Mortgagor's option, may be paid in installments (whether
or not interest shall accrue on the unpaid balance of such Imposition),
Mortgagor
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may elect to pay such Imposition in such installments and shall be responsible
for the payment of such installments with interest, if any.
(b) Nothing herein shall affect any night or remedy of
Mortgagee under this Mortgage or otherwise, without notice or demand to
Mortgagor, to pay any Imposition after the date such Imposition shall have
become delinquent, and to add to the Indebtedness the amount so paid, together
with interest from the time of payment at the rate of interest described in
paragraph 4.1(c) of the Credit Agreement (the "DEFAULT RATE"). Any sums paid by
Mortgagee in discharge of any Impositions shall be (i) a charge on the Premises
secured hereby prior to any right or title to, interest in, or claim upon the
Premises subordinate to the lien of this Mortgage, and (ii) payable on demand by
Mortgagor to Mortgagee together with interest at the Default Rate as set forth
above.
(c) Mortgagor shall not claim, demand or be entitled to
receive any credit or credits toward the satisfaction of this Mortgage or on any
interest payable thereon for any taxes assessed against the Mortgaged Property
or any part thereof, and shall not claim any deduction from the taxable value of
the Mortgaged Property by reason of this Mortgage.
(d) Mortgagor shall have the right pursuant to subsection 7.3
of the Credit Agreement to contest in good faith to the amount or validity of
any Imposition by appropriate proceedings diligently conducted with reserves in
conformity with GAAP, provided that Mortgagor shall demonstrate to Mortgagee's
reasonable satisfaction that such proceedings shall operate conclusively to
prevent the sale of the Mortgaged Property, or any part thereof, to satisfy such
Imposition prior to final determination of such proceedings.
(e) Upon written notice to Mortgagor, Mortgagee during the
continuance of an Event of Default (as defined below) shall be entitled to
require Mortgagor to pay monthly in advance to Mortgagee the equivalent of
1/12th of the estimated annual Impositions. Mortgagee may commingle such funds
with its own funds but Mortgagor shall be entitled to interest thereon at a rate
mutually agreed upon by Mortgagor and Mortgagee.
5. Insurance. (a) Mortgagor shall maintain or cause to be
maintained on all of
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the Premises:
(i) property insurance against loss or damage by fire,
lightning, windstorm, tornado, water damage, flood, earthquake and by
such other further risks and hazards as now are or subsequently may be
covered by an "all risk" policy or a fire policy covering "special"
causes of loss (provided, however, that the maintenance of insurance
against earthquake, windstorm, flood and freeze risks shall be subject
to availability of such insurance coverage on commercially reasonable
terms). The policy shall include building ordinance law endorsements
and the policy limits shall be automatically reinstated after each loss
(other than with respect to flood and earthquake coverage which shall
be reinstated on a commercially reasonable basis);
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(ii) commercial general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language or similar language of such endorsement), covering all claims
for personal injury, bodily injury or death, or property damage,
subject to standard policy terms, conditions and exclusions, occurring
on, in or about the Premises in an amount not less than $10,000,000
combined single limit with respect to personal injury, bodily injury or
death, or property damage, relating to any one occurrence plus such
excess limits as Mortgagee shall reasonably request from time to time;
(iii) when and to the extent reasonably required by Mortgagee,
insurance against loss or damage by any other risk commonly insured
against by persons occupying or using like properties in the locality
or localities in which the Real Estate is situated;
(iv) during the course of any construction or repair of
Improvements, commercial general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language or similar language of such endorsement), (including coverage
for elevators and escalators, if any). The policy shall include
coverage for independent contractors and completed operations. The
completed operations coverage shall stay in effect for two years after
construction of any Improvements has been completed. The policy shall
provide coverage on an occurrence basis against claims for personal
injury, including, without limitation, bodily injury and death, and
property damage resulting from Mortgagor's negligence or other behavior
for which Mortgagor may be adjudged tortiously liable, subject to
standard policy terms, conditions and exclusions, occurring on, in or
about the Premises and the adjoining streets, sidewalks and
passageways, such insurance to afford immediate minimum protection to a
limit of not less than that reasonably required by Mortgagee with
respect to personal injury, bodily injury or death to any one or more
persons or damage to property;
(v) during the course of any construction or repair of the
Improvements, workers' compensation insurance (including employer's
liability insurance) for all employees of Mortgagor engaged on or with
respect to the Premises in such amounts no less than the limits
established by law or in the case of employer's liability insurance, no
less than $500,000, provided that Mortgagor may self-insure any or all
workers' compensation liabilities;
(vi) during the course of any construction, addition,
alteration or repair of the Improvements, builder's risk completed
value property insurance form against "all risks of physical loss"
(subject to standard policy exclusions), including collapse, water
damage, flood and earthquake and transit coverage, during construction
or repairs of the Improvements, with deductible approved by Mortgagee
in its reasonable discretion, in reporting form, covering the total
replacement value of work performed and equipment, supplies and
materials furnished (with an appropriate limit for soft costs in the
case of construction); provided, however, that the maintenance of
insurance against
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earthquake and flood risks shall be subject to availability of such
insurance coverage on commercially reasonable terms;
(vii) boiler and machinery property insurance covering
pressure vessels, air tanks, boilers, machinery, pressure piping,
heating, air conditioning and elevator equipment and escalator
equipment, provided the Improvements contain equipment of such nature,
in such amounts as are reasonably satisfactory to Mortgagee but not
less than the lesser of $1,000,000 or 10% of the value of the
improvements;
(viii) if any portion of the Premises are located in an area
identified in the Federal Register as having special flood hazards by
the Secretary of Housing and Urban Development or other applicable
agency, flood insurance covering any parcel of the Mortgaged Property
which contains improvements in an amount satisfactory to Mortgagee in
its reasonable discretion, but in no event less than the maximum limit
of coverage available with respect to the particular type of property
under the National Flood Insurance Act of 1968, as amended and with a
term ending not later than the maturity of the Indebtedness and
Mortgagee shall receive confirmation that Mortgagor has received the
notice required pursuant to Section 208.8(e)(3) of Regulation H of the
Board of Governors of The Federal Reserve System; and
(ix) such other insurance in such amounts as Mortgagee may
reasonably request from time to time.
Each insurance policy (other than flood insurance written under the National
Flood Insurance Act of 1968, as amended, in which case to the extent available)
shall (i) provide that it shall not be cancelled, non-renewed or, in the case of
property and boiler and machinery insurance, materially amended without 30-days'
prior written notice to Mortgagee, (ii) with respect to all property insurance,
subject to availability on commercially reasonable terms, provide for
deductibles not to exceed $250,000, other than with respect to (a) flood,
freeze, windstorm and earthquake perils for which deductibles shall not exceed
the greater of $500,000 or 5% of values at risk per location involved in loss
and (b) boiler and machinery coverage for which deductibles shall not exceed the
greater of $500,000 or five times 100% of the daily time element value, contain
a "Replacement Cost Endorsement" without any deduction made for depreciation and
with no co-insurance penalty (or attaching an agreed amount endorsement
satisfactory to Mortgagee in its reasonable discretion), with loss payable
solely to Mortgagee (modified, if necessary and to the extent available under
such policy, to provide that proceeds in the amount of replacement cost may be
retained by Mortgagee without the obligation to rebuild) as its interest may
appear, without contribution, under a "standard" or "New York" mortgagee clause
acceptable to Mortgagee in its reasonable discretion and be written by insurance
companies having an A.M. Best Company, Inc. rating of A- or higher and a
financial size category of not less than VII, or otherwise as approved by
Mortgagee in its reasonable discretion and (iii) contain a "manuscript"
endorsement providing that Mortgagor may not unilaterally cancel such policy
without Mortgagee's prior written consent. Liability insurance policies shall
name Mortgagee as an additional insured and contain a waiver of subrogation
against Mortgagee; all such policies shall indemnify and hold Mortgagee harmless
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from all liability claims occurring on, in or about the Premises and the
adjoining streets, sidewalks and passageways, subject to standard policy terms,
conditions and exclusions. The amounts of each insurance policy and the form of
each such policy shall at all times be satisfactory to Mortgagee in its
reasonable discretion. Each policy shall expressly provide that any proceeds
which are payable to Mortgagee shall be paid by check payable to the order of
Mortgagee only and requiring the endorsement of Mortgagee only. If any required
insurance shall expire, be withdrawn, become void by breach of any condition
thereof by Mortgagor or by any lessee of any part of the Mortgaged Property or
become void or unsafe by reason of the failure or impairment of the capital of
any insurer, Mortgagor shall immediately obtain new or additional insurance
satisfactory to Mortgagee in its reasonable discretion. Mortgagor shall not take
out any separate or additional insurance which is contributing in the event of
loss unless it is properly endorsed and otherwise satisfactory to Mortgagee in
all respects in its reasonable discretion.
(b) Mortgagor shall deliver to Mortgagee an original of each
insurance policy required to be maintained, or a certificate of such insurance
acceptable to Mortgagee in its reasonable discretion, together with a copy of
the declaration page for each such policy. Mortgagor shall (i) pay as they
become due all premiums for such insurance, (ii) not later than seven days prior
to the expiration of each policy to be furnished pursuant to the provisions of
this Section, deliver a renewed policy or policies, or certificates of insurance
acceptable to Mortgagee, in its reasonable discretion, or duplicate original or
originals thereof. Upon the reasonable request of Mortgagee, Mortgagor shall
cause its insurance underwriter or broker to certify to Mortgagee in writing
that all the requirements of this Mortgage governing insurance have been
satisfied.
(c) If Mortgagor is in default of its obligations to insure or
deliver any such policy or policies, or certificates of insurance acceptable to
Mortgagee, in its reasonable discretion, then Mortgagee, at its option and
without notice, may effect such insurance from year to year, and pay the premium
or premiums therefor, and Mortgagor shall pay to Mortgagee on demand such
premium or premiums so paid by Mortgagee with interest from the time of payment
at the Default Rate and the same shall be deemed to be secured by this Mortgage
and shall be collectible in the same manner as the Indebtedness secured by this
Mortgage.
(d) Mortgagor shall increase the amount of property insurance
required to equal 100% replacement cost pursuant to the provisions of this
Section at the time of each renewal of each policy (but not later than 12 months
from the date of this Mortgage and each successive 12 month period to occur
thereafter) by using the Xxxxxx & Swift Building Cost Index to determine whether
there shall have been an increase in the replacement value since the most recent
adjustment and, if there shall have been such an increase, the amount of
insurance required shall be adjusted accordingly.
(e) Mortgagor promptly shall in all material respects comply
with and conform to (i) all provisions of each such insurance policy, and (ii)
all requirements of the insurers applicable to Mortgagor or to any of the
Mortgaged Property or to the use, manner of
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use, occupancy, possession, operation, maintenance, alteration or repair of any
of the Mortgaged Property. Mortgagor shall not use or permit the use of the
Mortgaged Property in any manner which would permit any insurer to cancel any
insurance policy or void coverage required to be maintained by this Mortgage.
(f) (i) If the Mortgaged Property, or any part thereof, shall
be destroyed or damaged by fire or any other casualty, whether insured
or uninsured, or in the event any claim is made against Mortgagor for
any personal injury, bodily injury or property damage incurred on or
about the Premises, Mortgagor shall promptly give notice thereof to
Mortgagee.
(ii) If the Mortgaged Property is damaged by fire or other
casualty and the cost to repair such damage is less than $1,000,000,
then provided that no Event of Default shall have occurred and be
continuing, Mortgagor shall have the right to adjust such loss, and the
insurance proceeds relating to such loss may be paid over to Mortgagor;
provided that Mortgagor shall, promptly after any such damage, repair
such damage to the extent required by subsection 7.5 of the Credit
Agreement regardless of whether any insurance proceeds have been
received or whether such proceeds, if received, are sufficient to pay
for the costs of repair.
(iii) if the Mortgaged Property is damaged by fire or other
casualty, and the cost to repair such damage exceeds the limit in
Section 5(f)(ii) above, or if an Event of Default shall have occurred
and be continuing, then Mortgagor authorizes and empowers Mortgagee, at
Mortgagee's option and in Mortgagee's reasonable discretion, as
attorney-in-fact for Mortgagor, to make proof of loss, to adjust and
compromise any claim under any insurance policy, to appear in and
prosecute any action arising from any policy, to collect and receive
insurance proceeds and to deduct therefrom Mortgagee's reasonable
expenses incurred in the collection process. Each insurance company
concerned is hereby authorized and directed to make payment for such
loss directly to Mortgagee. Mortgagee shall have the right to require
Mortgagor to repair or restore the Mortgaged Property to the extent
required by subsection 7.5 of the Credit Agreement, and Mortgagor
hereby designates Mortgagee as its attorney-in-fact for the purpose of
making any election required or permitted under any insurance policy
relating to such repair or restoration. The insurance proceeds or any
part thereof received by Mortgagee may be applied by Mortgagee toward
reimbursement of all reasonable costs and expenses of Mortgagee in
collecting such proceeds, and the balance, at Mortgagee's option in its
sole and absolute discretion, to the principal (to the installments in
inverse order of maturity, if payable in installments) and interest due
or to become due under the Notes, the Credit Agreement or the other
Loan Documents, to fulfill any other Obligation of Mortgagor, to the
restoration or repair of the property damaged, or released to
Mortgagor. Application by Mortgagee of any insurance proceeds toward
the last maturing installments of principal and interest due or to
become due on the Loans shall not excuse Mortgagor from making any
regularly scheduled payments due thereunder, nor shall such application
extend or reduce the amount of such payments. In the event Mortgagee
elects to release such proceeds to
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Mortgagor, Mortgagor shall be obligated to use such proceeds to restore
or repair the Mortgaged Property to the extent required by subsection
7.5 of the Credit Agreement.
(g) In the event of foreclosure of this Mortgage or other
transfer of title to the Mortgaged Property in lieu of such foreclosure, all
right, title and interest of Mortgagor in and to any insurance policies then in
force, to the extent assignable or transferable, shall pass to the purchaser or
grantee and Mortgagor hereby appoints Mortgagee its attorney-in-fact, in
Mortgagor's name, to assign and transfer all such policies and proceeds to such
purchaser or grantee.
(h) Upon written notice to Mortgagor, Mortgagee, during the
continuance of an Event of Default, shall be entitled to require Mortgagor to
pay monthly in advance to Mortgagee the equivalent of 1/12th of the estimated
annual premiums due on such insurance. Mortgagee may commingle such funds with
its own funds but Mortgagor shall be entitled to interest thereon at a rate
mutually agreed upon by Mortgagor and Mortgagee.
(i) Mortgagor may maintain insurance required under this
Mortgage by means of one or more blanket insurance policies maintained by
Mortgagor; provided, however, that (A) any such policy shall specify, or
Mortgagor shall furnish to Mortgagee a written statement from the insurer so
specifying, the maximum amount of the total insurance afforded by such blanket
policy that is allocated to the Premises and the other Mortgaged Property and
any sublimits and aggregates in such blanket policy applicable to the Premises
and the other Mortgaged Property, (B) each such blanket policy shall include an
endorsement providing that, in the event of a loss resulting from an insured
peril, insurance proceeds shall be allocated to the Mortgaged Property in an
amount equal to the coverages required to be maintained by Mortgagor as provided
above (subject to applicable sublimits and aggregates) and (C) the protection
afforded under any such blanket policy shall be no less than that which would
have been afforded under a separate policy or policies relating only to the
Mortgaged Property (subject to applicable sublimits and aggregates).
6. Restrictions on Liens and Encumbrances. Except for the lien
of this Mortgage and the Permitted Exceptions and except as otherwise permitted
pursuant to the terms of the Credit Agreement, Mortgagor shall not further
mortgage, nor otherwise encumber the Mortgaged Property nor create or suffer to
exist any lien, charge or encumbrance on the Mortgaged Property, or any part
thereof, whether superior or subordinate to the lien of this Mortgage and
whether recourse or non-recourse.
7. Due on Sale and Other Transfer Restrictions. Except as may
be otherwise expressly permitted under the Credit Agreement, Mortgagor shall not
sell, transfer, convey or assign all or any portion of, or any interest in, the
Mortgaged Property.
8. Maintenance; No Alteration; Inspection; Utilities. (a)
Mortgagor shall maintain or cause to be maintained all the Improvements in good
condition and repair and shall not commit or suffer any waste of the
Improvements. To the extent required under subsection 7.5 of the Credit
Agreement, Mortgagor shall repair, restore, replace or rebuild
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promptly any part of the Premises which may be damaged or destroyed by any
casualty whatsoever to a condition substantially equivalent to its condition
prior to the damage or destruction. Except as permitted by the Credit Agreement,
the Improvements shall not be demolished or materially altered, nor any material
additions built, without the prior written consent of Mortgagee, provided that
Mortgagor may make alterations or additions without the consent of Mortgagee
that do not materially reduce the value of the Mortgaged Property.
(b) Mortgagee and any persons authorized by Mortgagee shall,
upon reasonable notice and at any reasonable time, have the right to enter and
inspect the Premises and the right to inspect all work done, labor performed and
materials furnished in and about the Improvements and the right to inspect and
make copies, to the extent reasonable, of all books, contracts and records of
Mortgagor relating to the Mortgaged Property.
(c) Except as permitted under subsection 7.3 of the Credit
Agreement, Mortgagor shall pay or cause to be paid prior to delinquency, all
utility charges which are incurred for gas, electricity, water or sewer services
furnished to the Premises and all other assessments or charges of a similar
nature, whether public or private, affecting the Premises or any portion
thereof, whether or not such assessments or charges are liens thereon.
9. Condemnation/Eminent Domain. Promptly upon obtaining
knowledge of the institution of any proceedings for the condemnation of the
Mortgaged Property, or any portion thereof, Mortgagor will notify Mortgagee of
the pendency of such proceedings. Mortgagor authorizes Mortgagee, at Mortgagee's
option and in Mortgagee's reasonable discretion, as attorney-in-fact for
Mortgagor, to commence, appear in and prosecute, in Mortgagee's or Mortgagor's
name, any action or proceeding relating to an condemnation of the Mortgaged
Property, or any portion thereof, and to settle or compromise any claim in
connection with such condemnation upon the occurrence and during the continuance
of an Event of Default. If Mortgagee elects not to participate in such
condemnation proceeding, then Mortgagor shall, at its expense, diligently
prosecute any such proceeding and shall consult with Mortgagee, its attorneys
and experts and cooperate with them in any defense of any such proceedings. All
awards and proceeds of condemnation shall be applied in the same manner as
insurance proceeds, and to the extent such awards and proceeds exceed $1,000,000
and no Event of Default shall have occurred and be continuing, such awards and
proceeds shall be assigned to Mortgagee to be applied in the same manner as
insurance proceeds, as provided above in subsection 5(f)(iii) above, and
Mortgagor agrees to execute any such assignments of all such awards as Mortgagee
may request.
10. Restoration. If Mortgagee elects or is required hereunder
to release funds to Mortgagor for restoration of any of the Mortgaged Property,
then such restoration shall be performed in accordance with such conditions as
Mortgagee shall impose in its reasonable discretion, and as are customarily
imposed by construction lenders.
11. Leases. (a) Mortgagor shall not (i) execute an assignment
or pledge of any Lease relating to all or any portion of the Mortgaged Property
other than in favor of Mortgagee, or (ii) without the prior written consent of
Mortgagee, which consent shall not be
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unreasonably withheld or delayed, execute or permit to exist any Lease of any of
the Mortgaged Property, except for Permitted Exceptions and except as may be
otherwise expressly permitted under the Credit Agreement.
(b) As to any Lease consented to by Mortgagee under subsection
11(a) above, Mortgagor shall:
(i) promptly perform in all material respects all of the
provisions of the Lease on the part of the lessor thereunder to be
performed;
(ii) promptly enforce all of the material provisions of the
Lease on the part of the lessee thereunder to be performed;
(iii) appear in and defend any action or proceeding arising
under or in any manner connected with the Lease or the obligations of
Mortgagor as lessor or of the lessee thereunder;
(iv) exercise, within 5 business days after a reasonable
request by Mortgagee, any right to request from the lessee a
certificate with respect to the status thereof,
(v) promptly deliver to Mortgagee copies of any notices of
default which Mortgagor may at any time forward to or receive from the
lessee;
(vi) promptly deliver to Mortgagee a fully executed
counterpart of the Lease; and
(vii) promptly deliver to Mortgagee, upon Mortgagee's
reasonable request, if permitted under such Lease, an assignment of the
Mortgagor's interest under such Lease.
(c) Mortgagor shall deliver to Mortgagee, within 10 business
days after a reasonable request by Mortgagee, a written statement, certified by
Mortgagor as being true, correct and complete, containing the names of all
lessees and other occupants of the Mortgaged Property the terms of all Leases
and the spaces occupied and rentals payable thereunder, and a list of all Leases
which are then in default, including the nature and magnitude of the default;
such statement shall be accompanied by such other information as Mortgagee may
reasonably request.
(d) All Leases entered into by Mortgagor after the date
hereof, if any, and all rights of any lessees thereunder shall be subject and
subordinate in all respects to the lien and provisions of this Mortgage unless
Mortgagee shall otherwise elect in writing.
(e) In the event of the enforcement by Mortgagee of any remedy
under this Mortgage, the lessee under each Lease shall, if requested by
Mortgagee or any other person succeeding to the interest of Mortgagee as a
result of such enforcement, and if provided, at
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such lessee's request, with a nondisturbance agreement from Mortgagee or such
person, attorn to Mortgagee or to such person and shall recognize Mortgagee or
such successor in interest as lessor under the Lease without change in the
provisions thereof; provided however, that Mortgagee or such successor in
interest shall not be: (i) bound by any payment of an installment of rent or
additional rent which may have been made more than 30 days before the due date
of such installment; (ii) bound by any amendment or modification to the Lease
made without the consent of Mortgagee or such successor in interest; (iii)
liable for any previous act or omission of Mortgagor (or its predecessors in
interest); (iv) responsible for any monies owing by Mortgagor to the credit of
such lessee or subject to any credits, offsets, claims, counterclaims, demands
or defenses which the lessee may have against Mortgagor (or its predecessors in
interest); (v) bound by any covenant to undertake or complete any construction
of the Premises or any portion thereof; or (vi) obligated to make any payment to
such lessee other than any security deposit actually delivered to Mortgagee or
such successor in interest. Each lessee or other occupant, upon request by
Mortgagee or such successor in interest, shall execute and deliver an instrument
or instruments confirming such attornment. In addition, Mortgagor agrees that
each Lease entered into after the date of this Mortgage shall include language
to the effect of subsections (d)-(e) of this Section and language to the effect
that if any act or omission of Mortgagor would give any lessee under such Lease
the right, immediately or after lapse of a period of time, to cancel or
terminate such Lease, or to xxxxx or offset against the payment of rent or to
claim a partial or total eviction, such lessee shall not exercise such right
until it has given written notice of such act or omission to Mortgagee and until
a reasonable period for remedying such act or omission shall have elapsed
following the giving of such notice without a remedy being effected; provided
that the provisions of such subsections shall be self-operative and any failure
of any Lease to include such language shall not impair the binding effect of
such provisions on any lessee under such Lease.
12. Further Assurances/Estoppel Certificates. To further
assure Mortgagee's rights under this Mortgage, Mortgagor agrees upon demand of
Mortgagee to do any act or execute any additional documents (including, but not
limited to, security agreements on any personalty included or to be included in
the Mortgaged Property and a separate assignment of each Lease in recordable
form) as may be reasonably required by Mortgagee to confirm the rights or
benefits conferred on Mortgagee by this Mortgage.
13. Mortgagee's Right to Perform. If Mortgagor fails to
perform any of the covenants or agreements of Mortgagor, Mortgagee, without
waiving or releasing Mortgagor from any obligation or default under this
Mortgage, may, at any time (but shall be under no obligation to) pay or perform
the same, and the amount or cost thereof, with interest at the Default Rate,
shall immediately be due from Mortgagor to Mortgagee and the same shall be
secured by this Mortgage and shall be an encumbrance on the Mortgaged Property
prior to any right, title to, interest in or claim upon the Mortgaged Property
attaching subsequent to the date of this Mortgage. No payment or advance of
money by Mortgagee under this Section shall be deemed or construed to cure
Mortgagor's default or waive any right or remedy of Mortgagee.
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14. Events of Default. The occurrence of an Event of Default
under the Credit Agreement shall constitute an Event of Default hereunder.
15. Remedies. (a) Upon the occurrence of any Event of Default,
in addition to any other rights d remedies Mortgagee may have pursuant to the
Loan Documents, or as provided by law, and without limitation, the Indebtedness
and all other amounts payable with respect to the Loans, the Letters of Credit,
the Credit Agreement, this Mortgage and the other Security Documents shall
become due and payable as provided in the Credit Agreement. Except as expressly
provided above in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived. In addition, upon the
occurrence of any Event of Default, Mortgagee may immediately take such action,
without notice or demand, as it deems advisable to protect and enforce its
rights against Mortgagor and in and to the Mortgaged Property, including, but
not limited to, the following actions, each of which may be pursued concurrently
or otherwise, at such time and in such manner as Mortgagee may determine, in its
sole discretion, without impairing or otherwise affecting the other rights and
remedies of Mortgagee:
(i) Mortgagee may, to the extent permitted by applicable law,
(A) institute and maintain an action of mortgage foreclosure against
all or any part of the Mortgaged Property, (B) institute and maintain
an action on the Notes, the Credit Agreement or the other Security
Documents, (C) sell all or part of the Mortgaged Property (Mortgagor
expressly granting to Mortgagee the power of sale, as more fully
described below), or (D) take such other action at law or in equity for
the enforcement of this Mortgage or any of the Loan Documents as the
law may allow. Mortgagee may proceed in any such action to final
judgment and execution thereon for all sums due hereunder, together
with interest thereon at the Default Rate and all costs of suit,
including, without limitation, reasonable attorneys' fees and
disbursements. Interest at the Default Rate shall be due on any
judgment obtained by Mortgagee from the date of judgment until actual
payment is made of the full amount of the judgment.
(ii) Without affecting any right, power or remedy herein given
to Mortgagee and in addition to every other right, power and remedy
herein specifically given or now or hereafter existing in equity, law
or statute, Mortgagor hereby grants to Mortgagee the non-judicial Power
of Sale. Such Power of Sale shall be exercised by giving Mortgagor
Notice of Intent to Foreclose by Power of Sale and setting forth, among
other things, the nature of the breach(es) or default(s) and the action
required to effect a cure thereof and the time period within which such
cure may be effected all in compliance with Title 46 Oklahoma Statutes
SectionSection 40 et. seq. (Oklahoma Power of Sale Mortgage Foreclosure
Act) as the same may be amended from time to time or other applicable
statutory or judicial authority (the "Act"). If no cure is effected
within the statutory time limits, Mortgagee may accelerate the
Indebtedness secured hereby without further notice (the aforementioned
statutory cure period shall run concurrently with any contractual
provision for notice before acceleration of debt) and may then proceed
in the manner and subject to the conditions of the Act to send to
Mortgagor and other necessary parties a Notice of Sale and to sell and
convey the Mortgaged
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Property in accordance with such Act. The sale shall be made at one or
more sales, as an entirety or in parcels upon such notice, at such
times and places, subject to all conditions and with the proceeds
thereof to be applied all as provided in the Act. No action of
Mortgagee based upon the provisions contained herein or in the Act,
including, without limitation, the giving of the Notice of Intent to
Foreclose by Power of Sale or the Notice of Sale, shall constitute an
election of remedies which would preclude Mortgagee from pursuing
judicial foreclosure before or at any time after commencement of the
Power of Sale foreclosure procedure. Whether or not proceedings have
commenced by the exercise of the Power of Sale above given, Mortgagee
or the holder or holders of any of the Indebtedness, in lieu of
proceeding with the Power of Sale (or in the event of homestead
property where Mortgagor has elected judicial foreclosure, as provided
in the Act) may at its or their option, as applicable, following
acceleration of the Indebtedness as set forth above, proceed by suit or
suits in equity or at law to foreclose this Mortgage. If Mortgagee
institutes judicial proceedings to foreclose this Mortgage, Mortgagor
hereby waives or does not waive, at the sole option of Mortgagee,
appraisement of the Mortgaged Property, said option to be exercised by
Mortgagee at or prior to the time judgment is rendered in such judicial
foreclosure. Mortgagor fully understands the consequences of conferring
on Mortgagee the above-described Power of Sale, and if Mortgagee elects
to enforce this Mortgage by exercising said Power of Sale, Mortgagor
hereby expressly waives to the fullest extent permitted by law any
right to a judicial hearing prior to the sale of the Mortgaged
Property. As often as any proceedings may be taken to foreclose this
Mortgage, whether pursuant to the Power of Sale herein conferred or by
judicial proceeding, or to foreclose the security interest herein
granted to Mortgagee, Mortgagor hereby agrees to pay to Mortgagee, in
addition to all other sums due, all costs and expenses, including
reasonable attorneys fees, incurred by Mortgagee.
(iii) Mortgagee may personally, or by its agents, attorneys
and employees and without regard to the adequacy or inadequacy of the
Mortgaged Property or any other collateral as security for the
Indebtedness and Obligations enter into and upon the Mortgaged Property
and each and every part thereof and exclude Mortgagor and its agents
and employees therefrom without liability for trespass, damage or
otherwise (Mortgagor hereby agreeing to surrender possession of the
Mortgaged Property to Mortgagee upon demand at any such time) and use,
operate, manage, maintain and control the Mortgagee Property and every
part thereof. Following such entry and taking of possession, Mortgagee
shall be entitled, without limitation, (x) to lease all or any part or
parts of the Mortgaged Property for such periods of time and upon such
conditions as Mortgagee may, in is discretion, deem proper, (y) to
enforce, cancel or modify any Lease and (z) generally to execute, do
and perform any other act, deed, matter or thing concerning the
Mortgaged Property as Mortgagee shall deem appropriate as fully as
Mortgagor might do. In connection with Mortgagee's right to possession
of the Mortgaged Property as specified in this paragraph, Mortgagor
acknowledges that it has been advised that there is a significant body
of case law in Oklahoma which purportedly provides that in the absence
of a showing of waste of a character sufficient to endanger the value
of the Mortgaged Property, or other special
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factors, a mortgagor is entitled to remain in possession of Mortgaged
Property, and to enjoy the income, rents and profits therefrom, during
the pendency of foreclosure proceedings and until the expiration of the
redemption period, even if the mortgage documents expressly provide to
the contrary. Mortgagor further acknowledges that it has been advised
that Mortgagee recognizes the value of the security covered hereby is
inextricably intertwined with the effectiveness of the management,
maintenance and general operation of the Mortgaged Property, and that
Mortgagee would not extent the Indebtedness secured hereby unless it
could be assured that it would have the right to take possession of the
Mortgaged Property in order to manage or to control management thereto,
and to enjoy the income, rents and profits therefrom, immediately upon
default by Mortgagor hereunder, notwithstanding that foreclosure
proceedings may not have been instituted, or are pending, or the
redemption period may not have expired. Accordingly, Mortgagor hereby
knowingly, intelligently and voluntarily waives all right to possession
of the Mortgagee Property from and after the occurrence or an Event of
Default hereunder, upon demand for possession of Mortgagee, and
Mortgagor agrees not to assert any objection or defense to Mortgagee's
request or petition to a court for possession. The rights hereby
conferred upon Mortgagee have been agreed upon prior to any default by
Mortgagor hereunder and the exercise by Mortgagee of any such rights
shall not be deemed to put Mortgagee in the status of a "mortgagee in
possession". Mortgagor acknowledges that this provision is material to
this transaction and that Mortgagee would not extend the Indebtedness
secured hereby but for this paragraph.
(b) The holder of this Mortgage, without regard to Mortgagee's
election of nonjudicial Power of Sale foreclosure or judicial foreclosure, shall
be entitled to the appointment of a receiver by any court of competent
jurisdiction. In case of a foreclosure sale, the Real Estate may be sold, at
Mortgagee's election, in one parcel or in more than one parcel and Mortgagee is
specifically empowered, (without being required to do so, and in its sole and
absolute discretion) to cause successive sales of portions of the Mortgaged
Property to be held. In the event of a Judicial foreclosure, the court shall
direct a sale of the Real Estate either with or without appraisement, as
Mortgagee may elect, said election to be exercised at or prior to the time
judgment is rendered.
(c) In the event of any breach of any of the covenants,
agreements, terms or conditions contained in this Mortgage, and notwithstanding
to the contrary any exculpatory or non-recourse language which may be contained
herein, Mortgagee shall be entitled to enjoin such breach and obtain specific
performance of any covenant, agreement, term or condition and Mortgagee shall
have the right to invoke any equitable right or remedy as though other remedies
were not provided for in this Mortgage.
(d) In case of foreclosure of this Mortgage or the exercise of
Power of Sale, and as often as any proceedings shall be instituted relating
thereto, Mortgagor will pay to Mortgagee a reasonable attorney's fee, together
with the cost of continuing the abstract of title to the Real Estate to the date
of filing such foreclosure, court costs and all other expenses incurred in
connection with such proceedings, all of which will be due and payable when suit
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is filed and will be and become a part of the Indebtedness to be paid or
collected in such foreclosure.
16. Right of Mortgagee to Credit Sale. Upon the occurrence of
any sale made under this Mortgage, whether made under the power of sale or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale, Mortgagee may bid for and acquire the Mortgaged Property or any part
thereof. In lieu of paying cash therefor, Mortgagee may make settlement for the
purchase price by crediting upon the Indebtedness or other sums secured by this
Mortgage the net sales price after deducting therefrom the expenses of sale and
the cost of the action and any other sums which Mortgagee is authorized to
deduct under this Mortgage. In such event, this Mortgage, the Notes and other
instruments evidencing the Indebtedness and any and all documents evidencing
expenditures secured hereby may be presented to the person or persons conducting
the sale in order that the amount so used or applied may be credited upon the
Indebtedness as having been paid.
17. Appointment of Receiver. If any condition of this Mortgage
shall not have been satisfied or if any other Event of Default shall have
occurred and be continuing, Mortgagee, in any action to foreclose this Mortgage
(whether by judicial proceedings or in connection with any exercise of the Power
of Sale), shall be entitled as a matter of night and without notice to
Mortgagor, unless otherwise required by applicable law, and without regard to
the adequacy or inadequacy of the Mortgaged Property or any other collateral as
security for the Indebtedness and Obligations or the interest of Mortgagor
therein, and without the proof required by statute, and without regard to
Mortgagee's election of nonjudicial Power of Sale foreclosure or judicial
foreclosure, shall have the right to the appointment of a receiver or receivers
or other manager of the Mortgaged Property by any court of competent
jurisdiction, without requiring the posting of a surety bond and without
reference to the adequacy or inadequacy of the value of the Mortgaged Property
or the solvency or insolvency of Mortgagor or any other party obligated for
payment of all or any part of the Indebtedness, and whether or not waste has
occurred with respect to the Mortgaged Property. Mortgagor hereby irrevocably
consents to such appointment and waives notice of any application therefor
(except as may be required by law). Any such receiver or receivers or other
manager shall have all the usual powers and duties of receivers in like or
similar cases and all the powers and duties of Mortgagee in case of entry as
provided in this Mortgage, including, without limitation and to the extent
permitted by law, the right to enter into leases of all or any part of the
Mortgaged Property, and shall continue as such and exercise all such powers
until the date of confirmation of sale of the Mortgaged Property unless such
receivership is sooner terminated.
18. Extension, Release, etc. (a) Without affecting the lien or
charge of this Mortgage upon any portion of the Mortgaged Property not then or
theretofore released as security for the full amount of the Indebtedness,
Mortgagee may, from time to time and without notice, agree to (i) release any
person liable for the Indebtedness, (ii) extend the maturity or alter any of the
terms of the Indebtedness or any guaranty thereof, (iii) grant other
indulgences, (lv) release or reconvey, or cause to be released or reconveyed at
any time at Mortgagee's option any parcel, portion or all of the Mortgaged
Property, (v) take or release any other or additional security for any
obligation herein mentioned, or (vi) make
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compositions or other arrangements with debtors in relation thereto. If at any
time this Mortgage shall secure less than all of the principal amount of the
Indebtedness, it is expressly agreed that any repayments of the principal amount
of the Indebtedness shall not reduce the amount of the encumbrance of this
Mortgage until the encumbrance amount shall equal the principal amount of the
Indebtedness outstanding.
(b) No recovery of any judgment by Mortgagee and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of Mortgagor shall affect the encumbrance of this Mortgage or any
liens, rights, powers or remedies of Mortgagee hereunder, and such liens,
rights, powers and remedies shall continue unimpaired.
(c) If Mortgagee shall have the night to foreclose this
Mortgage or exercise the Power of Sale, Mortgagor authorizes Mortgagee at Its
option to foreclose the lien of this Mortgage or exercise the Power of Sale
subject to the rights of any tenants of the Mortgaged Property. The failure to
make any such tenants parties defendant to any such foreclosure proceeding and
to foreclose their rights or exercise the Power of Sale will not be asserted by
Mortgagor as a defense to any proceeding instituted by Mortgage to collect the
Indebtedness, to foreclose the lien of this Mortgage or to exercise the Power of
Sale.
(d) Unless expressly provided otherwise, in the event that
ownership of this Mortgage and title to the Mortgaged Property or any estate
therein shall become vested in the same person or entity, this Mortgage shall
not merge in such title but shall continue as a valid lien on the Mortgaged
Property for the amount secured hereby.
19. Security Agreement under Uniform Commercial Code. (a) It
is the intention of the parties hereto that this Mortgage shall constitute a
Security Agreement within the meaning of the Uniform Commercial Code (the
"CODE") of the State of Oklahoma (being Title 12A Section 1-101 et seq.). If an
Event of Default shall occur under this Mortgage, then in addition to having any
other right or remedy available at law or in equity, Mortgagee shall have the
option of either (i) proceeding under the Code and exercising such rights and
remedies as may be provided to a secured party by the Code with respect to all
or any portion of the Mortgaged Property which is personal property (including,
without limitation, taking possession of and selling such property) or (ii)
treating such property as real property and proceeding with respect to both the
real and personal property constituting the Mortgaged Property in accordance
with Mortgagee's rights, powers and remedies with respect to the real property
(in which event the default provisions of the Code shall not apply). If
Mortgagee shall elect to proceed under the Code, then ten days' notice of sale
of the personal property shall be deemed reasonable notice and the reasonable
expenses of retaking, holding, preparing for sale, selling and the like incurred
by Mortgagee shall include, but not be limited to, reasonable attorneys' fees
and legal expenses, At its option, Mortgagee may proceed solely or separately
against the Mortgaged Property or any part thereof upon any default and will be
entitled to exercise any or all of the rights and remedies accorded a secured
party by the Code including, but not limited to, the right to require Mortgagor,
upon demand by Mortgagee, to assemble the Mortgaged Property and make the same
available to Mortgagee at a place convenient to both parties. Any reasonable
attorney's fees and legal expenses incurred by
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Mortgagee in taking any such action will be considered part of the reasonable
expenses of retaking, holding, preparing for sale and reselling the Mortgaged
Property within the meaning of the Code.
(b) Mortgagor and Mortgagee agree, to the extent permitted by
law, that: (i) some or all of the goods described within the definition of the
word "Equipment" are or are to become fixtures on the Real Estate; (ii) this
Mortgage upon recording or registration in the real estate records of the proper
office shall constitute a financing statement filed as a "fixture filing" within
the meaning of Sections 9-313 and 9-402 of the Code; (iii) Mortgagor is the
record owner of the Real Estate; and (iv) the mailing addresses of Mortgagor and
Mortgagee are as set forth on the first page of this Mortgage. In addition, for
purposes of Article 9 of the Oklahoma Uniform Commercial Code, (i) Mortgagor is
the "debtor", (ii) Mortgagee is the "secured party" and (iii) information
concerning the security interest created hereby may be obtained from Mortgagee
at its address on the first page of this Mortgage.
(c) Mortgagor, upon request by Mortgagee from time to time,
shall execute, acknowledge and deliver to Mortgagee one or more separate
security agreements, in form satisfactory to Mortgagee in its reasonable
discretion, covering all or any part of the Mortgaged Property and will further
execute, acknowledge and deliver, or cause to executed, acknowledged and
delivered, any financing statement, affidavit, continuation statement or
certificate or other document as Mortgagee may request in order to perfect,
preserve, maintain, continue or extend the security interest under and the
priority of this Mortgage and such security instrument. Mortgagor further agrees
to pay to Mortgagee on demand all reasonable costs and expenses incurred by
Mortgagee in connection with the preparation, execution, recording, filing and
re-filing of any such document and all reasonable costs and expenses of any
record searches for financing statements Mortgagee shall reasonably require. If
Mortgagor shall fail to furnish any financing or continuation statement within
10 days after request by Mortgagee, then pursuant to the provisions of the Code,
Mortgagor hereby authorizes Mortgagee, without the signature of Mortgagor, to
execute and file any such financing and continuation statements. The filing of
any financing or continuation statements in the records relating to personal
property or chattels shall not be construed as in any way impairing the right of
Mortgagee to proceed against any personal property encumbered by this Mortgage
as real property, as set forth above.
20. Assignment of Rents. Mortgagor hereby absolutely and
unconditionally assigns, transfers, conveys and sets over to Mortgagee, the
Rents as further security for the payment of the Indebtedness and performance of
the Obligations, and Mortgagor grants to Mortgagee the right to enter the
Mortgaged Property for the purpose of collecting the same and to let the
Mortgaged Property or any part thereof and to apply the Rents on account of the
Indebtedness. The foregoing assignment and grant is present and absolute and
shall continue in effect until the Indebtedness is paid in full, but Mortgagee
hereby waives the right to enter the Mortgaged Property for the purpose of
collecting the Rents, letting the Mortgaged Property or any part thereof or
applying the Rents and Mortgagor shall be entitled to collect, receive, use and
retain the Rents until the occurrence of an Event of Default under this
Mortgage; such right of Mortgagor to collect, receive, use and retain the Rents
may be revoked by Mortgagee
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upon the occurrence of any Event of Default under this Mortgage by giving not
less than five days' written notice of such revocation to Mortgagor; in the
event such notice is given, Mortgagor shall pay over to Mortgagee, or to any
receiver appointed to collect the Rents, any lease security deposits, and shall
pay monthly in advance to Mortgagee, or to any such receiver, the fair and
reasonable rental value as determined by Mortgagee for the use and occupancy of
the Mortgaged Property or of such part thereof as may be in the possession of
Mortgagor or any affiliate of Mortgagor, and upon default in any such payment
Mortgagor and any such affiliate will vacate and surrender the possession of the
Mortgaged Property to Mortgagee or to such receiver, and in default thereof may
be evicted by summary proceedings or otherwise. Mortgagor shall not accept
prepayments of installments of Rent to become due for a period of more than one
month in advance (except for security deposits and estimated payments of
percentage rent, if any).
21. Trust Funds. All lease security deposits of the Real
Estate shall be treated as trust funds not to be commingled with any other funds
of Mortgagor. Within 10 days after request by Mortgagee, Mortgagor shall furnish
Mortgagee satisfactory evidence of compliance with this subsection, together
with a statement of all lease security deposits by lessees and copies of all
Leases not previously delivered to Mortgagee under which such security deposits
are held, which statement shall be certified by Mortgagor.
22. Additional Rights. The holder of any subordinate lien or
subordinate mortgage on the Mortgaged Property shall have no right to terminate
any Lease whether or not such Lease is subordinate to this Mortgage nor shall
any holder of any subordinate lien or subordinate mortgage join any tenant under
any Lease in any action to foreclose the lien or modify, interfere with, disturb
or terminate the rights of any tenant under any Lease. By recordation of this
Mortgage all subordinate lienholders under subordinate mortgages are subject to
and notified of this provision, and any action taken by any such lienholder or
mortgagee contrary to this provision shall be null and void. Upon the occurrence
of any Event of Default, Mortgagee may, in its sole discretion and without
regard to the adequacy of its security under this Mortgage, apply all or any
part of any amounts on deposit with Mortgagee under this Mortgage against all or
any part of the Indebtedness. Any such application shall not be construed to
cure or waive any Default or Event of Default or invalidate any act taken by
Mortgagee on account of such Default or Event of Default.
23. Changes in Method of Taxation. In the event of the passage
after the date hereof of any law of any Governmental Authority deducting from
the value of the Premises for the purposes of taxation any lien or mortgage
thereon, or changing in any way the laws for the taxation of mortgages or deeds
of trust or debts secured thereby for federal, state or local purposes, or the
manner of collection of any such taxes, and imposing a tax, either directly or
indirectly, on mortgages or deeds of trust or debts secured thereby, the holder
of this Mortgage shall have the right to declare the Indebtedness due on a date
to be specified by not less than 30 days' written notice to be given to
Mortgagor unless within such 30-day period Mortgagor shall assume as an
Obligation hereunder the payment of any tax so imposed until full payment of the
Indebtedness and such assumption shall be permitted by law.
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24. Notices. All notices, requests, demands and other
communications hereunder shall be deemed to have been sufficiently given or
served when served in the same manner as set forth for notices in the Credit
Agreement.
25. No Oral Modification. This Mortgage may not be changed or
terminated orally. Any agreement made by Mortgagor and Mortgagee after the date
of this Mortgage relating to this Mortgage shall be superior to the rights of
the holder of any intervening or subordinate mortgage, lien or encumbrance,
26. Partial Invalidity. In the event any one or more of the
provisions contained in this Mortgage shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, but each shall be
construed as if such invalid, illegal or unenforceable provision had never been
included. Notwithstanding to the contrary anything contained in this Mortgage or
in any provisions of the Indebtedness or Loan Documents, the obligations of
Mortgagor and of any other obligor under the Indebtedness or Loan Documents
shall be subject to the limitation that Mortgagee shall not charge, take or
receive, nor shall Mortgagor or any other obligor be obligated to pay to
Mortgagee, any amounts constituting interest in excess of the maximum rate
permitted by law to be charged by Mortgagee.
27. Mortgagor's Waiver of Rights. To the fullest extent
permitted by law, Mortgagor waives the benefit of all laws now existing or that
may subsequently be enacted providing for (i) any appraisement before sale of
any portion of the Mortgaged Property, (ii) any extension of the time for the
enforcement of the collection of the Indebtedness or the creation or extension
of a period of redemption from any sale made in collecting such debt and (iii)
exemption of the Mortgaged Property from attachment, levy or sale under
execution or exemption from civil process. To the full extent Mortgagor may do
so, Mortgagor agrees that Mortgagor will not at any time insist upon, plead,
claim or take the benefit or advantage of any law now or hereafter in force
providing for any appraisement, valuation, stay, exemption, extension or
redemption, or requiring foreclosure of this Mortgage before exercising any
other remedy granted hereunder and Mortgagor, for Mortgagor and its successors
and assigns, and for any and all persons ever claiming any interest in the
Mortgaged Property, to the extent permitted by law, hereby waives and releases
all rights of redemption, valuation, appraisement, stay of execution, notice of
election to mature or declare due the whole of the secured indebtedness and
marshalling in the event of foreclosure of the liens hereby created.
28. Remedies Not Exclusive. Mortgagee shall be entitled to
enforce payment of the Indebtedness and performance of the Obligations and to
exercise all rights and powers under this Mortgage or under any of the other
Loan Documents or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Indebtedness and Obligations may now or
hereafter be otherwise secured, whether by deed of trust, mortgage, security
agreement, pledge, lien, assignment or otherwise. Neither the acceptance of this
Mortgage nor its enforcement, shall prejudice or in any manner affect
Mortgagee's right to realize upon or enforce any other security now or hereafter
held by Mortgagee, it being agreed that Mortgagee shall be entitled to enforce
this Mortgage and any other security now or
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hereafter held by Mortgagee in such order and manner as Mortgagee may determine
in its absolute discretion. No remedy herein conferred upon or reserved to
Mortgaizee is intended to be exclusive of any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. Every power or remedy given by any of the Loan Documents
to Mortgagee or to which either may otherwise be entitled, may be exercised,
concurrently or independently, from time to time and as often as may be deemed
expedient by Mortgagee. In no event shall Mortgagee, in the exercise of the
remedies provided in this Mortgage (including, without limitation, in connection
with the assignment of Rents, or the appointment of a receiver and the entry of
such receiver on to all or any part of the Mortgaged Property), be deemed a
"mortgagee in possession, . " and Mortgagee shall not in any way be made liable
for any act, either of commission or omission, in connection with the exercise
of such remedies.
29. Multiple Security. If (a) the Premises shall consist of
one or more parcels, whether or not contiguous and whether or not located in the
same county, or (b) in addition to this Mortgage, Mortgagee shall now or
hereafter hold or be the mortgagee of one or more additional mortgages, liens,
deeds of trust or other security (directly or indirectly) for the Indebtedness
upon other property in the State in which the Premises are located (whether or
not such property is owned by Mortgagor or by others) or (c) both the
circumstances described in clauses (a) and (b) shall be true, then to the
fullest extent permitted by law, Mortgagee may, at its election, commence or
consolidate in a single foreclosure action all foreclosure proceedings against
all such collateral securing the Indebtedness (including the Mortgaged
Property), which action ("foreclosure", "foreclosure action", "foreclosure
proceeding" all include, for purposes of this Section, the exercise of Power of
Sale granted in this Mortgage) may be brought or consolidated in the courts of,
or sale conducted in, any county in which any of such collateral is located.
Mortgagor acknowledges that the right to maintain a consolidated foreclosure
action is a specific inducement to Mortgagee to extend the Indebtedness, and
Mortgagor expressly and irrevocably waives any objections to the commencement or
consolidation of the foreclosure proceedings in a single action and any
objections to the laying of venue or based on the grounds of forum non
conveniens which it may now or hereafter have. Mortgagor further agrees that if
Mortgagee shall be prosecuting one or more foreclosure or other proceedings
against a portion of the Mortgaged Property or against any collateral other than
the Mortgaged Property, which collateral directly or indirectly secures the
Indebtedness, or if Mortgagee shall have obtained a judgment of foreclosure or
similar judgment against such collateral, then, whether or not such proceedings
are being maintained or judgments were obtained in or outside the State in which
the Premises are located, Mortgagee may commence or continue any foreclosure
proceedings and exercise its other remedies granted in this Mortgage against all
or any part of the Mortgaged Property and Mortgagor waives any objections to the
commencement or continuation of a foreclosure of this Mortgage or exercise of
any other remedies hereunder based on such other proceedings or judgments, and
waives any right to seek to dismiss, stay, remove, transfer or consolidate
either any action under this Mortgage or such other proceedings on such basis.
Neither the commencement nor continuation of proceedings to foreclose this
Mortgage nor the exercise of any other rights hereunder nor the recovery of any
judgment by Mortgagee in any such
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proceedings shall prejudice, limit or preclude Mortgagee's right to commence or
continue one or more foreclosure or other proceedings or obtain a judgment
against any other collateral (either in or outside the State in which the Real
Estate is located) which directly or indirectly secures the Indebtedness, and
Mortgagor expressly waives any objections to the commencement of, continuation
of, or entry of a judgment in such other proceedings or exercise of any remedies
in such proceedings based upon any action or judgment connected to this
Mortgage, and Mortgagor also waives any right to seek to dismiss, stay, remove,
transfer or consolidate either such other proceedings or any sale or action
under this Mortgage on such basis. It is expressly understood and agreed that to
the fullest extent permitted by law, Mortgagee may, at its election, cause the
sale of all collateral which is the subject of a single foreclosure action at
either a single sale or at multiple sales conducted simultaneously and take such
other measures as are appropriate in order to effect the agreement of the
parties to dispose of and administer all collateral securing the Indebtedness
(directly or indirectly) in the most economical and least time-consuming manner.
30. Successors and Assigns. All covenants of Mortgagor
contained in this Mortgage are imposed solely and exclusively for the benefit of
Mortgagee and its respective successors and assigns, and no other person or
entity shall have standing to require compliance with such covenants or be
deemed, under any circumstances, to be a beneficiary of such covenants, any or
all of which may be freely waived in whole or in part by Mortgagee at any time
if in its sole discretion such waiver is deemed advisable. All such covenants of
Mortgagor shall run with the land and bind Mortgagor, the successors and assigns
of Mortgagor (and each of them) and all subsequent owners, encumbrancers and
tenants of the Mortgaged Property, and shall inure to the benefit of Mortgagee
and its respective successors and assigns. The word "Mortgagor" shall be
construed as if it read "Mortgagors" whenever the sense of this Mortgage so
requires and if there shall be more than one Mortgagor, the obligations of the
Mortgagors shall be joint and several.
31. No Waivers, etc. Any failure by Mortgagee to insist upon
the strict performance by Mortgagor of any of the terms and provisions of this
Mortgage shall not be deemed to be a waiver of any of the terms and provisions
hereof, and Mortgagee, notwithstanding any such failure, shall have the right
thereafter to insist upon the strict performance by Mortgagor of any and all of
the terms and provisions of this Mortgage to be performed by Mortgagor.
Mortgagee may release, regardless of consideration and without the necessity for
any notice to or consent by the mortgagee of any subordinate mortgage or the
holder of any subordinate lien on the Mortgaged Property, any part of the
security held for the obligations secured by this Mortgage without, as to the
remainder of the security, in anywise impairing or affecting the lien of this
Mortgage or the priority of such lien over any subordinate lien or mortgage.
32. Governing Law, etc. This Mortgage shall be governed by and
construed in accordance with the laws of the State in which the Premises are
located, except that Mortgagor expressly acknowledges that by its terms the
Credit Agreement shall be governed and construed in accordance with the laws of
the State of New York, without regard to principles of conflict of law, and for
purposes of consistency, Mortgagor agrees that in any in personam
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proceeding related to this Mortgage the rights of the parties to this Mortgage
shall also be governed by and construed in accordance with the laws of the State
of New York governing contracts made and to be performed in that State, without
regard to principles of conflict of law.
33. Waiver of Trial by Jury. Mortgagor and Mortgagee each
hereby irrevocably and unconditionally waive trial by jury in any action, claim,
suit or proceeding relating to this Mortgage and for any counterclaim brought
therein.
34. Certain Definitions. Unless the context clearly indicates
a contrary intent or unless otherwise specifically provided herein, words used
in this Mortgage shall be used interchangeably in singular or plural form and
the word "Mortgagor" shall mean "each Mortgagor or any subsequent owner or
owners of the Mortgaged Property or any part thereof or interest therein," the
word "Mortgagee" shall mean "Mortgagee or any successor Administrative Agent,"
the word "Notes" shall mean "the notes that may from time to time be given
pursuant to the terms of the Credit Agreement or any other evidence of
indebtedness secured by this Mortgage," the word "person" shall include any
individual, corporation, partnership, trust, unincorporated association,
government, governmental authority, or other entity, and the words "Mortgaged
Property" shall include any portion of the Mortgaged Property or interest
therein. Whenever the context may require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns and pronouns shall include the plural and vice versa. The captions
in this Mortgage are for convenience or reference only and in no way limit or
amplify the provisions hereof.
35. Release of Mortgage. Upon payment in full of the
Indebtedness, the termination of all Commitments under the Credit Agreement
secured hereby and the compliance with the Obligations then required to be
complied with, Mortgagee shall release the encumbrance of this Mortgage. If any
of the Mortgaged Property shall be sold, transferred or otherwise disposed of by
Mortgagor in a transaction expressly permitted by the Credit Agreement, then
Mortgagee shall execute and deliver (at the sole cost and expense of Mortgagor)
all partial releases or other documents reasonably necessary or desirable for
the release of such Mortgaged Property from the encumbrance of this Mortgage.
36. Conflict With Credit Agreement. In the event of any
conflict or inconsistency between the terms and provisions of this Mortgage and
the terms and provisions of the Credit Agreement, the terms and provisions of
the Credit Agreement shall govern, other than with respect to the Section of
this Mortgage captioned "Governing Law, etc.". By their execution of the Credit
Agreement, each Lender hereby agrees that it shall not have the right to
institute any suit for enforcement of Notes or any other Indebtedness secured by
this Mortgage or any other Security Document, if and to the extent that the
institution or prosecution thereof or the entry of judgment therein would, under
applicable law, result in the surrender, impairment, waiver or loss of the Lien
of this Mortgage or any other Security Document or impede or delay the
enforcement of the Lien of this Mortgage or any other Security Document.
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37. Receipt of Copy. Mortgagor acknowledges that it has
received a true copy of this Mortgage.
38. Counterparts. This Mortgage maybe executed in any number
of counterparts, each of which shall for all purposes be deemed to be an
original, and all of which are identical except that, to facilitate recordation,
in any particular counterpart there may be omitted those portions of Schedule A
which describe properties situated in counties other than the country in which
such counterpart is to be recorded.
NOTICE: A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY
ALLOW THE MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO
COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE MORTGAGOR UNDER THIS MORTGAGE.
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This Mortgage has been duly executed by Mortgagor as of the
date first above written.
TELEX COMMUNICATIONS, INC.
"Mortgagor"
By:
Print or Type Name:
Title:
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STATE OF MINNESOTA )
: ss.:
COUNTY OF DAKOTA )
This instrument was acknowledged before me this 2nd day of
February 1998 by __________, _____ President of TELEX COMMUNICATIONS, INC., a
Delaware corporation, on behalf of the corporation.
Notary Public
Name:
My commission expires:
[SEAL]
32
00000 Xxxx Xxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Canadian County
(page 1 of 2)
SCHEDULE A
Tract I:
A parcel of land being a part of Government Lot 4 in the Northwest Quarter,
Section 2, Township 11 North, Range 5 West, Canadian County, Oklahoma, said
parcel being more particularly described as follows:
Starting in the Northwest Corner of Lot 4, also being the Northwest Corner of
Section 2, T 11 N, R 5 W, Canadian County, Oklahoma (same being the intersection
of Reno Avenue and Xxxx Road); thence South 00(degree)16'56" West along the West
line of said Section 2 (Xxxx Road) for a distance of 561.75 feet; thence South
89(degree)56'42" East a distance of 241.33 feet to the point of beginning;
Thence South 89(degree)56'42" East a distance of 272.87 feet; Thence South
00(degree)16'56" West a distance of 120 feet; Thence North 89(degree)56'42" West
a distance of 272.87; Thence North 00(degree)16'56" East a distance of 120 feet
to the point of beginning.
Tract II:
A parcel or tract of land being part of Government Lot 4 in the Northwest
Quarter of Section 2, Township 11 North, Range 5 West of the I.M., Canadian
County, Oklahoma, said tract being more particularly described as follows:
Starting at the Northwest corner of government Lot 4 also being the Xxxxxxxxx
xxxxxx xx Xxxxxxx 0, X00X, X00 of the I.M., Canadian County, Oklahoma (same
point being the intersection of Xxxx Road and Reno Avenue), Thence South
00(degree)16'56" West along the West line of said Section 2 a distance of 561.75
feet; Thence South 89(degree)56'42" East along a line parallel to the North line
of said Section 2 a distance of 241.33 feet to the point or place of beginning;
Thence South 00(degree)16'56" West a distance of 120.00 feet; Thence South
89(degree)56'42" East a distance of 272.87 feet; Thence South 00(degree)16'56"
West a distance of 210.00 feet; Thence North 89(degree)56'42" West a distance of
514.20 feet; Thence North 00(degree)16'56" East a distance of 330.0 feet; Thence
South 89(degree)56'46" East a distance of 241.33 feet, more or less to the point
or place of beginning, LESS AND EXCEPT that portion conveyed to The State of
Oklahoma, under the warranty Deed recorded at Book 402, Page 272.
Tract III:
BEGINNING at the Northwest Corner (NW/C) of Section Two (2), Township Eleven
(11) North, Range Five (5) west of the Indian Meridian, Canadian County,
Oklahoma; Thence South 89(degree)56'42" East a distance of 1,325.41 feet to a
point; Thence South 89(degree)25'19" West a distance of 1,293.19 feet to a
point; Thence Northwesterly on a curve to the right having a radius of 10,552.96
feet for a distance of 1,194.72 feet to a point; Thence North 08(degree)32'51"
West a distance of 236.50 feet to a point; Thence South 89(degree)56'42" East a
distance of 411.18 feet to a point; Thence North 00(degree)16'56" East a
distance of 330.00 feet to a point; Thence North 89(degree)56'42" West a
distance of 462.41 feet to a point; Thence North 08(degree)32'51" West a
distance of 11.68 feet to a point; Thence North 89(degree)43'04" West a distance
of 50.00 feet to a point on the West line of
-Continued-
33
00000 Xxxx Xxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Canadian County
(page 2 of 2)
said Section Two (2); Thence North 00(degree)16'57" East a distance of 550.00
feet to the Point of Beginning.
-Continued-
