RECEIVED
DEC 09 2003 EXHIBIT 4.17
X.X. Xxxxxxx
Register of Deeds
Oakland County. MI
56502
LIBER 32054 PAGE 233
$82.00 MORTGAGE
$4.00 REMONUMENTATION
01/30/2004 09:11:26 A.M. RECEIPT 13200
PAID RECORDED - DAKLAND COUNTY
X. XXXXXXX XXXXXXX, CLERK/REGISTER OF DEEDS
This instrument prepared by:
Xxxxxxx X. Xxxxxx, Esq.
Xxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
LEASEHOLD MORTGAGE
(AUBURN HILLS, MICHIGAN LOCATION)
LEASEHOLD MORTGAGE ("Mortgage"), dated as of November 28, 2003, by
GOLFSMITH NU, L.L.C., a Delaware limited liability company, whose address is
00000 X. XX-00, Xxxxxx, Xxxxx 00000 (being hereinafter called "Grantor") to U.S.
BANK TRUST NATIONAL ASSOCIATION, a national banking association, as Collateral
Agent, whose address is 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Collateral Agent"), under the Indenture, dated as of October 15, 2002, by
and among the Golfsmith International, Inc., the Collateral Agent, as Trustee,
and the Guarantors, as defined therein (as amended, restated or otherwise
modified from time to time, the "Indenture"), as collateral agent for the
Holders, as defined in the Indenture;
That for and in consideration of the sum of Ten Dollars ($10.00) and
other valuable consideration, the receipt and sufficiency whereof are hereby
acknowledged, and in order to secure the indebtedness and other obligations of
Grantor, hereinafter set forth, Grantor does hereby GRANT, BARGAIN, SELL,
CONVEY, MORTGAGE and WARRANT unto Collateral Agent, its successors and assigns,
with power of sale, the following:
(A) Grantor's leasehold interest and estate created by and arising
pursuant to that certain Lease, dated February 28, 2003, between Xxxxxxxx'x
Auburn Hills, LLC, a Michigan limited liability company, as landlord, and
Grantor, as tenant (the "Mortgaged Lease") and which demises to Grantor certain
premises more particularly described therein (the "Premises") and located on a
portion of that certain tract or parcel of land more particularly described in
Exhibit "A" attached hereto and incorporated herein by reference (the "Land");
TOGETHER WITH all of Grantor's right, title and interest in and to the Mortgaged
Lease, and all modifications,
extensions and renewals and assignments of the Mortgaged Lease and in and to all
rights to renew or extend the term of the Mortgaged Lease, or to purchase the
Premises leased pursuant to the Mortgaged Lease, and all credits, deposits,
options, privileges and rights of Grantor, as tenant, under the Mortgaged Lease;
(B) TOGETHER WITH all of Grantor's right, title and interest, to
the extent granted to Grantor under the Mortgaged Lease, in and to (1) the
buildings, structures and improvements of every nature whatsoever now or
hereafter situated on the Land and constituting a part of the Premises, and (2)
the fixtures, machinery, appliances, equipment, furniture and personal property
of every nature whatsoever now or hereafter owned by Grantor and located in or
on, attached to, and used or intended to be used in connection with or with the
operation of, the Premises, or in connection with any construction being
conducted or which may be conducted thereon, and all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to all of
the foregoing, and all of the right, title and interest of Grantor to the extent
provided under the Mortgaged Lease in and to any such personal property and
fixtures (hereinafter called the "Improvements").
(C) TOGETHER WITH all of Grantor's right, title and interest, to
the extent granted to Grantor under the Mortgaged Lease, in and to all
easements, rights-of-way, gores of land, streets, ways, alleys, passages, sewer
rights, water courses, water rights and powers, other real property and
interests therein, and all appurtenances whatsoever, in any way belonging,
relating or appertaining to any of the property described in paragraphs (A) and
(B) hereof, or which hereafter shall in any way belong, relate or be appurtenant
thereto.
(D) TOGETHER WITH all of Grantor's right, title and interest, to
the extent granted to Grantor under the Mortgaged Lease, in and to (i) all of
the estate, right, title and interest of Grantor of, in and to all judgments,
insurance proceeds, awards of damages and settlements hereafter made or
resulting from condemnation proceedings or the taking of the Premises or any
part thereof under the power of eminent domain, or for any damage (whether
caused by such taking or otherwise) to the Premises any part thereof, or to any
rights appurtenant thereto, and all proceeds of any sale or other disposition of
the Premises or any part thereof; and Collateral Agent is, subject to the
provisions of this Deed of Trust and the Mortgaged Lease, hereby authorized to
collect and receive said awards and proceeds and to give proper receipts and
acquittances therefor, and (if it so elects) to apply the same toward the
payment of indebtedness and other sums secured hereby, notwithstanding the fact
that the amount owing thereon may not then be due and payable; and (ii) all
contract rights, general intangibles, actions and rights in action, including
without limitation all rights to insurance proceeds and unearned premiums
arising from or relating to the Premises; and (iii) all proceeds, products,
replacements, additions, substitutions, renewals and accessions of and to the
Premises.
(E) TOGETHER WITH all rents, security deposits, advance rentals,
income, issues, profits, royalties, avails and other benefits derived or owned
by Grantor directly or indirectly from the Premises and to which Grantor may be
entitled to receive, subject to Act 210 of the Public Acts of Michigan of 1953,
as amended, and all right, title and interest of Grantor under any and all
leases, subleases, licenses, occupancy agreements, concessions or other
arrangements, whether written or oral, whereby any person agrees to pay money or
any consideration for the use, possession or occupancy of, or any estate in, the
Premises or any part
-2-
thereof; provided, however, that permission is hereby given to Grantor, so long
as no Event of Default (as defined in Section 2.01) has occurred hereunder and
is continuing, to collect and use such rents, income and other benefits as they
become due and payable, but not more than one (1) month in advance thereof. Upon
the occurrence of any such Event of Default, the permission hereby given to
Grantor to collect such rents, income and other benefits from the Premises shall
terminate and such permission shall be reinstated upon a cure of such Event of
Default.
(F) TOGETHER WITH all right, title and interest of Grantor in and
to any and all subleases now or hereafter on or affecting the Premises, and all
books and records which contain payments made under the subleases and all
security therefor.
(G) TOGETHER WITH (i) the Grantor's rights further to encumber the
Premises; and (ii) all of the Grantor's rights to enter into any sublease or
sublease agreement.
All of the property described in paragraphs (A), (B), (C), (D), (E),
(F) and (G) above, and each item of property therein described, is hereinafter
referred to collectively as the "Property."
TO HAVE AND TO HOLD the Property and all parts thereof unto the
Collateral Agent for the benefit of the Holders and their successors and assigns
upon the terms and conditions contained herein.
Grantor is a wholly owned subsidiary of Golfsmith International, Inc.
(the "Borrower") and hereby acknowledges that it will derive substantial
economic benefit from the proceeds of Borrower's issuance of its "Notes" (as
defined below) in the aggregate principal amount of $93,750,000.00 and, as a
result, Grantor has agreed to guarantee Borrower's payment and performance of
its indebtedness, obligations and liabilities under the Notes, the Indenture and
the Indenture Documents.
The Guarantees have been executed and delivered by Guarantors with
respect to Xxxxxxxx's liability with respect to the Notes, the Indenture and the
Indenture Documents, and Grantor hereby acknowledges that it will derive a
substantial economic benefit from the execution and delivery of the Guarantees
by Guarantors due to the fact that each Guarantor is also a subsidiary of
Borrower and Borrower and Grantor will benefit from the Guarantees. As a result,
Grantor has agreed to grant this Mortgage to secure the payment and performance
by Grantor under its guaranty (and constituting one of the Guarantees) dated
October 15, 2002 (the "Golfsmith NU, LLC Guaranty") and the Obligations of the
other Guarantors under the Guarantees.
This Mortgage is executed and delivered by Grantor to secure the
following described obligations, liabilities and indebtedness to Collateral
Agent and Holders (hereinafter collectively referred as the "Obligations"):
(a) All loans, advances, indebtedness, obligations and liabilities
now or from time to time hereafter owing by Borrower, including the
"Obligations" as defined in the Indenture, to Collateral Agent, Holders, and any
other Person under the Indenture, or under any agreement, instrument or document
executed or delivered to Collateral Agent or Holders in respect of the Indenture
(all such agreements, instruments or documents, collectively, the "Indenture
Documents'") or the transactions contemplated thereby, pursuant to which Holders
have duly
-3-
authorized the creation of an issue of 8.375% Senior Notes due October 15, 2009
in the aggregate stated principal amount of $93,750,000 (the "Initial Notes"),
and Series B 8.375% Exchange Notes due October 15, 2009 issued from time to time
in accordance with the provisions of the Indenture in exchange for a like
principal amount of Initial Notes (the "Exchange Notes," and together with the
Initial Notes and any Additional Notes, as defined in the Indenture,
collectively, the "Notes") as described in the Indenture.
(b) All indebtedness, obligations and liabilities of Guarantors
arising under the Guarantees (as defined in the Indenture), including the
indebtedness, obligations and liabilities of Grantor under the Golfsmith NU, LLC
Guaranty;
(c) All indebtedness, obligations and liabilities of Grantor
arising under this Mortgage;
(d) All advances made by Collateral Agent and the other Holders to
protect or preserve the Property or the lien hereof on the Property, or for
taxes, assessments, insurance premiums, or other advances authorized under the
terms of this Mortgage (whether or not Grantor remains the owner of the Property
at the time of such advance);
(e) Any and all renewals, extensions, modifications,
substitutions, replacements or consolidations of the indebtedness, liabilities
and obligations described in paragraphs (a), (b), (c) or (d) above, and
(f) All other obligations, liabilities and indebtedness of every
kind and character now or hereafter owing by Borrower, Grantor or any Guarantor
to Collateral Agent and/or Holders, however created, incurred or evidenced,
direct or indirect, absolute or contingent, and whether owing under the
Indenture, Indenture Documents, this Mortgage or the Notes, including without
limitation, all "Obligations" (as defined in the Indenture) of Borrower, Grantor
and Guarantors to Collateral Agent and Holders.
THIS DOCUMENT SECURES "FUTURE ADVANCES" AND IS INTENDED TO BE A "FUTURE
ADVANCE MORTGAGE", AS EACH OF THOSE PHRASES IS DEFINED IN 1990 MICH. PUB. ACTS
348, AS AMENDED.
PROVIDED, HOWEVER, that if the Grantor and Guarantors shall promptly
pay or cause to be paid the Obligations secured hereby in accordance with the
terms thereof when the same shall become due and payable and shall keep, perform
and observe all the terms, conditions and requirements of the Notes, the
Indenture, the Indenture Documents and of this Mortgage, then, upon complete
payment and satisfaction thereof, this Mortgage shall be null and void and of no
further force and effect and shall be released by Collateral Agent and
Collateral Agent upon the written request and at the expense of Grantor.
ARTICLE ONE
COVENANTS OF GRANTOR
Grantor covenants and agrees with the Collateral Agent and Holders, or
any successor in title as holder of the Obligations secured hereby, as follows:
-4-
1.01 General Representations, Covenants and Warranties. Grantor
represents, warrants and covenants that (a) Grantor is seized of a good and
valid leasehold estate in and to the Premises, and has good right, full power
and lawful authority to encumber the same as provided herein and Collateral
Agent may, subject to the provisions of the Mortgaged Lease, at all times
peaceably and quietly enter upon, hold, occupy and enjoy the Premises in
accordance with the terms hereof; (b) the Property is free and clear of all
liens, security interests, charges and encumbrances whatsoever except to the
extent permitted by clauses (1), (2), (3), (4), (5), (8), (15) and (16) of the
definition of Permitted Liens, as defined in the Indenture, and except for any
liens, security interests, charges and encumbrances created or arising by,
through or under the landlord under the Mortgaged Lease or its
predecessors-in-title; (c) Grantor will maintain and preserve the lien of this
Deed of Trust until the Obligations secured hereby have been paid in full; (d)
the Premises has frontage on, and direct access of ingress, egress, and regress
to, public rights of way; and (e) electric, gas, sewer, water facilities and any
other necessary utilities are, and at all times hereafter shall be, available in
sufficient capacity to service the Premises satisfactorily for its current use,
and any easements necessary to the furnishing of such utility service to Grantor
have been obtained.
1.02 Compliance with Laws. To the extent Grantor is required to so
comply under the Mortgaged Lease, Grantor covenants and warrants that the
Premises presently complies in all material respects with and will continue to
comply in all material respects with all applicable restrictive covenants,
applicable zoning and subdivision ordinances and building codes, all applicable
health and environmental laws and regulations and other applicable laws, rules
and regulations which affect the Premises and the operations of Grantor on the
Premises. If Grantor receives notice from any federal, state or other
governmental body that it is not in compliance with any such covenant,
ordinance, code, law or regulation, Grantor will provide Collateral Agent with a
copy of such notice and comply or cause the landlord under the Mortgaged Lease
to comply with the provisions of such notice promptly if failure to comply could
reasonably be expected to result in a material adverse effect on the Premises or
the use, operation or value thereof, or on the Grantor.
1.03 Taxes and Other Charges.
(a) Taxes and Assessments. To the extent required under Section
4.04 of the Indenture or under the Mortgaged Lease, Grantor shall pay promptly
when due all taxes, assessments, rates, dues, charges, fees, levies, fines,
impositions, liabilities, obligations and encumbrances of every kind whatsoever
now or hereafter imposed, levied or assessed upon or against the Premises or any
part thereof, or upon or against this Mortgage or the Obligations secured
hereby, or upon or against the security interest of Collateral Agent in the
Premises, as well as all income taxes, assessments and other governmental
charges levied and imposed by the United States of America or any state, county,
municipality or other taxing authority upon or against Grantor or in respect of
the Premises or any part thereof.
(b) Xxxxxxxx's and Other Liens. Except to the extent permitted by
clause (2) of the definition of Permitted Liens, as defined in the Indenture,
Grantor shall not permit or suffer any mechanic's, laborer's, materialman's,
statutory or other lien (other than any lien for taxes not yet due) to be
created upon or filed against the Property.
-5-
(c) Taxes Affecting Holders' Interest. Grantor will promptly pay
all income, franchise and other taxes owing by Grantor and any stamp,
documentary, recordation and transfer taxes or other taxes (unless such payment
by Grantor is prohibited by law) which may be required to be paid with respect
to this Mortgage or any instrument evidencing or securing any of the
Obligations. In the event of the enactment after this date of any law of any
governmental entity applicable to Collateral Agent, the Obligations, the
Property or this Mortgage imposing upon Collateral Agent the payment of the
whole or any part of the taxes or assessments or charges or liens herein
required to be paid by Grantor, or changing in any way the laws relating to the
taxation of deeds of trust or mortgages or security agreements or debts secured
by deeds of trust or mortgages or security agreements or the interest of the
Collateral Agent or secured party in the property covered thereby, or the manner
of collection of such taxes, so as to affect this Mortgage or the Obligations or
Collateral Agent, then, and in any such event, Grantor, upon demand by
Collateral Agent, shall pay such taxes, assessments, charges or liens, or
reimburse Collateral Agent therefor.
(d) Tax Escrow. In order to secure the performance and discharge
of Grantor's obligations under this Section 1.03, but not in lieu of such
obligations, and to the extent Grantor is not required to pay such sums to the
landlord under the Mortgaged Lease, Grantor, upon Collateral Agent's request
after the occurrence of and during the continuance of an Event of Default, will
pay over to Collateral Agent an amount equal to one-twelfth (1/12th) of the next
maturing annual ad valorem taxes, assessments and charges (which taxes,
assessments and charges, for purposes of this paragraph, shall include without
limitation water and sewer rents, and shall hereinafter be collectively called
"Taxes") of the nature described in Section 1.03(a) for each month that has
elapsed since the last date to which the Taxes were paid; and Grantor will, in
addition, upon Collateral Agent's request, pay over to Collateral Agent together
with each installment of the Obligations sufficient funds (as estimated from
time to time by Collateral Agent in its sole discretion) to permit Collateral
Agent to pay when due the Taxes. Upon Collateral Agent's request, Grantor shall
also deliver to Collateral Agent such additional monies as are required to make
up any deficiencies in the amounts necessary to enable Collateral Agent to pay
the Taxes. In such case, Collateral Agent must timely pay the Taxes or return
the additional monies to Grantor to allow Grantor to pay such Taxes. Such
deposits shall not be, nor be deemed to be, trust funds but may be commingled
with the general funds of Collateral Agent, and no interest shall be payable in
respect thereof. Upon the occurrence of an Event of Default, Collateral Agent
may apply to the reduction of the Obligations secured hereby, in such manner as
Collateral Agent shall determine, any amount under this Section 1.03(d)
remaining to Grantor's credit.
(e) No Credit Against the Obligations Secured Hereby. Neither
Borrower nor Grantor shall claim, demand or be entitled to receive any credit,
against the principal or interest payable on the Obligations for so much of the
Taxes assessed against the Property of any part thereof or that are applicable
to the Obligations secured hereby or to Collateral Agent's interest in the
Property. No deduction shall be claimed from the taxable value of the Property
or any part thereof by reason of the Obligations, this Mortgage or any other
instrument securing the Obligations.
-6-
1.04 Insurance.
(a) Grantor shall, at its sole expense, keep the Premises insured
in such amounts and against such risks and damages as is required under Section
4.05 of the Indenture. All policies of insurance shall contain an endorsement,
in form and substance reasonably acceptable to Collateral Agent, showing loss
payable to Collateral Agent as its interests appear. Such endorsement, or an
independent instrument delivered to Collateral Agent, shall provide that the
insurance companies will give Collateral Agent at least fifteen (15) days prior
written notice before any such policy or policies of insurance shall be altered
in any way that may affect Collateral Agent's rights thereunder or cancelled and
that no act of default of Grantor or any other person shall affect the right of
Collateral Agent to recover under such policy or policies or insurance in case
of loss or damage (10 days in the case of cancellation for non-payment of
premium).
(b) In order to secure the performance and discharge of Grantor's
obligations under this Section 1.04(b), but not in lieu of such obligations, and
to the extent Grantor is not required to pay such sums to the landlord under the
Mortgaged Lease, Grantor, upon Collateral Agent's request after the occurrence
of and during the continuance of an Event of Default, will pay over to
Collateral Agent an amount equal to one-twelfth (1/12th) of the next maturing
annual insurance premiums for each month that has elapsed since the last date to
which such premiums were paid; and Grantor will, in addition, upon Collateral
Agent's request, pay over to Collateral Agent together with each installment on
the Obligations sufficient funds (as estimated from time to time by Collateral
Agent in its sole discretion) to permit Collateral Agent to pay said premiums
when due. Such deposits shall not be, nor be deemed to be, trust funds but may
be commingled with the general funds of Collateral Agent, and no interest shall
be payable in respect thereof. Upon Collateral Agent's request, Grantor shall
also deliver to Collateral Agent such additional monies as are necessary to make
up any deficiencies in the amounts necessary to enable Collateral Agent to pay
such premiums when due. In such case, Collateral Agent must timely pay the
premiums or return the additional monies to Grantor to allow Grantor to pay the
premiums.
(c) Pursuant to its rights granted hereunder in all proceeds from
any insurance policies, Collateral Agent is hereby authorized and empowered at
its option to adjust or compromise any loss under any insurance policies on the
Premises and to collect and receive the proceeds from any such policy or
policies. Each insurance company is hereby authorized and directed to make
payment for all such losses directly to Collateral Agent alone and not to
Grantor and Collateral Agent jointly. After deducting from such insurance
proceeds any expenses incurred by Collateral Agent and the other Holders in the
collection or handling of such funds, the net proceeds received by Collateral
Agent shall apply such amounts as requested by Grantor for the restoration. In
no event, however, shall any advance be made which will result in the funds
remaining with Collateral Agent being less than the cost of completion of
restoration of the Premises as estimated by an architect or engineer reasonably
satisfactory to Collateral Agent. If, upon completion of restoration of the
Premises there remain funds with Collateral Agent, Collateral Agent shall pay
the remaining funds. Any funds applied against the Obligations secured hereby
shall be applied to particular Obligations, whether then matured or to mature in
the future, in accordance with the terms of the Indenture. Although Collateral
Agent intends to use its best efforts to collect such payments in a timely
fashion, Collateral Agent shall not be
-7-
responsible for any failure to collect any insurance proceeds due under the
terms of any policy regardless of the cause of such failure. The provisions of
this Section 1.04 are subject to any provisions of the Mortgaged Lease
pertaining to the maintenance, collection, use and application of insurance
proceeds.
(d) Non-Impairment of Collateral Agent's Rights. Nothing contained
in either of Sections 1.03(d) and 1.04(b) shall be deemed to affect any right or
remedy of Collateral Agent under any provision of this Mortgage or of any
statute or rule of law to pay any amount required to be paid by Sections 1.03(d)
and 1.04(b) and to add the amount so paid to the Obligations hereby secured.
Although Collateral Agent intends to use its best efforts to make such payments
in a timely fashion, the arrangements provided in Sections 1.03(d) and 1.04(b)
are solely for the added protection of Collateral Agent and the other Holders
and entail no responsibility on Collateral Agent's or Holders' part beyond the
allowing of due credit, without interest, for sums actually received by it. Upon
assignment of this Mortgage, any funds on hand shall be turned over to the
assignee and any responsibility of Collateral Agent with respect thereto shall
terminate.
(e) The Grantor's failure to pay taxes and/or assessments assessed
against the Property, or any installment thereof, or any insurance premium upon
policies covering the Property or any part thereof, shall constitute waste
(although the meaning of the term "waste" shall not necessarily be limited to
such nonpayment), as provided by Act No. 236 of the Public Acts of Michigan of
1961, as amended, and shall entitle the Collateral Agent to all remedies
provided for therein. The Grantor further agrees to and does hereby consent to
the appointment of a receiver under such statute, should the Collateral Agent
elect to seek such relief thereunder.
1.05 Condemnation. Collateral Agent shall be entitled to all
compensation, awards, damages, claims, rights of action and proceeds of, or on
account of, any damage or taking through condemnation and is hereby authorized,
at its option, to commence, appear in and prosecute in its own or the Grantor's
name any action or proceeding relating to any condemnation and to settle or
compromise any claim in connection therewith. All such compensation, awards,
damages, claims, rights of action and proceeds, and any other payments or
relief, and the right thereto, are included in the Property and Collateral Agent
and the other Holders, after deducting therefrom all of their expenses including
reasonable attorneys' fees incurred in the collection or handling of such funds,
shall apply such amounts as requested by Grantor for the restoration of the
Premises. In no event, however, shall any advance be made which will result in
the funds remaining with Collateral Agent being less than the cost of completion
of restoration of the Premises as estimated by an architect or engineer
reasonably satisfactory to Collateral Agent. If, upon completion of restoration
of the Premises there remain funds with Collateral Agent, Collateral Agent shall
pay the remaining funds to Grantor. Xxxxxxx agrees to execute such further
assignments of any compensation, awards, damages, claims, rights of action and
proceeds as Collateral Agent may reasonably require. Notwithstanding any such
condemnation, Grantor shall continue to pay interest, computed at the rate
provided in the Notes, on the entire unpaid principal amount thereof. The
provisions of this Section 1.05 are subject to any provisions of the Mortgaged
Lease pertaining to the collection, use and application of any compensation,
awards, damages, claims, rights of action and proceeds insurance proceeds.
-8-
1.06 Care of Property.
(a) Grantor shall preserve and maintain the Property in good
condition and repair, ordinary wear and tear excepted. Grantor shall not permit,
commit or suffer any material waste, impairment or deterioration of the Property
or of any part thereof, and will not take any action which will materially
increase the risk of fire or other hazard to the Property or to any part
thereof.
(b) Grantor will not, without the prior written consent of
Collateral Agent, (i) remove from the Premises any fixtures or personal property
covered by this Mortgage which materially impairs the value of the Property, or
(ii) make any structural alteration to the Premises or any other alteration
thereto which materially impairs the value thereof.
(c) Collateral Agent may enter upon and inspect the Premises at
any reasonable time during the life of this Mortgage and upon reasonable prior
notice.
1.07 Further Assurances. At any time and from time to time, upon
Collateral Agent's reasonable request, Grantor shall make, execute and deliver,
or cause to be made, executed and delivered, to Collateral Agent and where
appropriate shall cause to be recorded or filed, and from time to time
thereafter to be re-recorded and refiled at such time and in such offices and
places as shall be deemed desirable by Collateral Agent, any and all such
further deeds of trust, instruments or further assurance, certificates and other
documents as Collateral Agent may consider necessary or desirable in order to
effectuate, complete, or perfect, or to continue and preserve the respective
obligations of Borrower and Grantor under the Notes, the Indenture Documents and
this Mortgage, and the lien of this Mortgage as a lien upon all of the Property,
whether now owned or hereafter acquired by Grantor. Upon any failure by Grantor
to do so, Collateral Agent may make, execute, record, file, re-record or refile
any and all such deeds of trust, instruments, certificates and documents for and
in the name of Grantor, and Grantor hereby irrevocably appoints Collateral Agent
as the agent and attorney-in-fact of Grantor to do so.
1.08 Security Agreements and Financing Statements.
(a) Grantor (as debtor) hereby grants to Collateral Agent and
Holders (as creditor and secured party) a security interest in all fixtures,
machinery, appliances, equipment, furniture and personal property of every
nature whatsoever constituting part of the Property.
(b) Grantor shall execute any and all such documents, including
without limitation, financing statements pursuant to the applicable Uniform
Commercial Code, as Collateral Agent may reasonably request, to preserve and
maintain the priority of the lien created hereby on property which may be deemed
personal property or fixtures, and shall pay to Collateral Agent on demand any
expenses incurred by Collateral Agent and Holders in connection with the
preparation, execution and filing of any such documents. This Mortgage shall
also constitute a "fixture filing" for purposes of the applicable Uniform
Commercial Code. Grantor hereby authorizes and empowers Collateral Agent to
execute and file, on Xxxxxxx's behalf, all financing statements and refilings
and continuations thereof as Collateral Agent reasonably deems necessary or
advisable to create, preserve and protect said lien. This Mortgage shall be
deemed a security agreement as defined in said Uniform Commercial Code and the
remedies for any
-9-
violation of the covenants, terms and conditions of the agreements herein
contained shall be (i) as prescribed herein, (ii) by general law, or (iii) as to
such part of the security which is also reflected in said financing statement by
the specific statutory consequences now or hereafter enacted and specified in
the Uniform Commercial Code, all at Collateral Agent's sole election.
(c) Grantor and Collateral Agent agree that the filing of a
financing statement in the records normally having to do with personal property
shall never be construed as in any way derogating from or impairing the express
declaration and intention of the parties hereto, xxxxxxxxxxx stated, that
everything used in connection with the production of income from the Property
and/or adapted for use therein and/or which is described or reflected in this
Mortgage is, and at all times and for all purposes and in all proceedings both
legal or equitable, shall be regarded as part of the real estate encumbered by
this Mortgage irrespective of whether (i) any such item is physically attached
to the Improvements, (ii) serial numbers are used for the better identification
of certain equipment items capable of being thus identified in a recital
contained herein or in any list filed with Collateral Agent, or (iii) any such
item is referred to or reflected in any such financing statement so filed at any
time. Similarly, the mention in any such financing statement of (1) rights in or
to the proceeds of any fire and/or hazard insurance policy, or (2) any award in
eminent domain proceedings for a taking or for loss of value, or (3) Grantor's
interest as lessor in any present or future lease or rights to income growing
out of the use and/or occupancy of the Property, whether pursuant to lease or
otherwise, shall never be construed as in any way altering any of the rights of
Collateral Agent as determined by this instrument or impugning the priority of
the lien granted hereby or by any other recorded document, but such mention in
the financing statement is declared to be for the protection of Holders in the
event any court or judge shall at any time hold with respect to (1), (2) and (3)
that notice of the priority of the interest of Collateral Agent and the other
Holders to be effective against a particular class of persons, including but not
limited to the federal government and any subdivisions or entity of the federal
government, must be filed in the Uniform Commercial Code records.
1.10 Assignment of Rents. As additional security for the due and
punctual performance and observance of the Obligations, Grantor does hereby
sell, assign, transfer and set over unto the Collateral Agent, pursuant to Act
210 of the Public Acts of Michigan of 1953, as amended, and Act 228 of the
Public Acts of Michigan of 1925, as amended, as applicable, all cash flows
whatsoever from the Premises to which Grantor may be entitled, including,
without limitation, all rents, fees, issues, security deposits, profits and
income under all subleases, occupancy agreements or other arrangements, however
evidenced or denominated, upon or affecting the Premises (including any
extensions, amendments or renewals thereof), whether such fees, issues,
deposits, rents, profits and income are due or are to become due, and including
all such subleases, occupancy agreements or other arrangements relating to the
Premises which are now in existence or come into existence during the term of
this Mortgage. This assignment shall run with the land and be good and valid as
against the Grantor and those claiming by, under or through the Grantor, from
the date of this Mortgage, and shall be binding upon the subtenants and
occupiers of the Premises upon service of a copy of this Mortgage together with
a notice of default as required by statute. This assignment shall continue to be
operative during the foreclosure or any other proceedings taken to enforce this
Mortgage. In the event of a foreclosure sale which results in a deficiency, this
assignment shall stand as security during the redemption period for the payment
of such deficiency. This assignment is given as collateral security only and
does not obligate the Collateral Agent to perform any of the covenants or
-10-
undertakings required to be performed by the Grantor in any subleases or
occupancy agreements or arrangements.
Immediately upon the occurrence of an Event of Default under this
Mortgage, all of the Grantor's rights to and interest in the fees, issues,
deposits, rents, profits and income from the Premises (including all fees,
issues, deposits, rents, profits and income in the possession or control of the
Grantor or any agent of the Grantor as of the date of the event of default)
shall (to the fullest extent permitted by applicable law) automatically
terminate (all such rights and interest automatically vesting in the Collateral
Agent), and the Collateral Agent shall be thereafter entitled to collect such
fees, issues, deposits, rents, profits and income from the Premises, rent or
lease the Premises or any portion thereof upon such terms and for such time as
it may deem best, maintain proceedings to recover rents or possession of the
Premises from any tenant or trespasser, and apply the net proceeds of such fees,
issues, deposits, rent, profits and income to the following purposes: (1)
payment of all of the costs and expenses incurred by the Collateral Agent in
exercising its rights under this paragraph; (2) payment of interest and
principal due under the Obligations; (3) payment of all other sums secured
hereby; (4) payment of expenses of preserving, maintaining and operating the
Premises, including taxes, construction liens, insurance premiums, management
fees, leasing costs and commissions, repairs and established damage claims.
Notwithstanding the foregoing, the Collateral Agent, in its sole discretion, may
change the priorities set forth above, both within and among the categories, for
the application of the net proceeds of such fees, issues, deposits, rents,
profits and income.
The Collateral Agent and its duly authorized agents shall be entitled
to enter the Premises for the purpose of delivering any and all such notices and
other communications to the tenants and occupiers thereof as shall be necessary
or desirable in the Collateral Agent's discretion to exercise its rights
hereunder, and the Collateral Agent and its agents shall have absolutely no
liability to the Grantor arising therefrom. The Collateral Agent shall not,
however, be obligated to give any tenant or occupier of the Premises any notice
by personal delivery and the Collateral Agent may, in its sole discretion,
deliver all such notices and communications by ordinary first-class U. S. mail,
postage prepaid, or otherwise.
In the event that the Grantor obstructs the Collateral Agent in its
efforts to collect the fees, issues, deposits, rents, profits and income from
the Premises, or after requested by the Collateral Agent, unreasonably refuses,
fails or neglects to assist the Collateral Agent in collecting such fees,
issues, deposits, rents, profits and income, the Collateral Agent shall be
entitled to the appointment of a receiver of the Premises and of the fees,
issues, deposits, rents, profits and income therefrom, with such powers as the
court making such appointment may confer.
The Collateral Agent shall at no time have any obligation whatever to
attempt to collect rent from any tenant or occupier of the Premises
notwithstanding that such tenants and occupiers may not be paying rent to either
the Grantor or to the Collateral Agent. Further, the Collateral Agent shall at
no time have any obligation whatever to enforce any other obligations owed by
tenants or occupiers of the Premises to the Grantor.
The Grantor shall at no time collect advance rent under any lease upon,
affecting or pertaining to the Premises or any part thereof in excess of one
month (other than as a security
-11-
deposit) and the Collateral Agent shall not be bound in any respect by any rent
prepayment made or received in violation of the terms hereof. Neither this
assignment nor the receipt of rents, income and other benefits by Collateral
Agent shall effect a pro tanto payment of the indebtedness evidenced by or
arising under the obligations.
1.11 After-Acquired Property. To the extent permitted by and
subject to applicable law, the lien of this Mortgage will automatically attach,
without further act, to all after-acquired property located in or on, or
attached to the Property or any part thereof.
1.12 Subleases Affecting Encumbered Property. Grantor represents
that Grantor has delivered to Collateral Agent true, correct and complete copies
of all subleases of any portion of the Premises, that all such subleases are
presently in effect and that no default by Grantor exists in such subleases. As
any such sublease shall expire or terminate or as any new sublease shall be
made, Grantor shall so notify Collateral Agent in order that at all times
Collateral Agent shall have a current list of all subleases affecting the
Premises. The assignment contained in paragraph (F) of this Mortgage shall not
be deemed to impose upon Collateral Agent any of the obligations or duties of
Grantor provided in any such sublease (including, without limitation, any
liability under the covenant of quiet enjoyment contained in any sublease in the
event that any tenant shall have been joined as a party defendant in any action
to foreclose this Mortgage and shall have been barred and foreclosed thereby of
all right, title and interest and equity of redemption in the Property or any
part thereof), and Grantor shall comply with and observe its obligations in all
material respects as landlord under all subleases affecting the Property or any
part thereof. Grantor, if required by Collateral Agent, shall furnish promptly
to Collateral Agent original or certified copies of all such subleases now
existing or hereafter created. Grantor shall not, without the express prior
written consent of Collateral Agent, enter into any sublease affecting the
Property, or amend, modify, extend, terminate or cancel, accept the surrender
of, subordinate, accelerate the payment of rent as to, or change the terms of
any renewal option of any such sublease now existing or hereafter created, or
permit or suffer an assignment or sublease. Grantor shall not accept payment of
rent more than one (1) month in advance without the prior written consent of
Collateral Agent.
With respect to the assignment contained in paragraph (F) of this
Mortgage, Grantor shall, from time to time upon request of Collateral Agent,
specifically assign to Collateral Agent as additional security hereunder, by an
instrument in writing in such form as may be approved by Collateral Agent in its
reasonable discretion, all right, title and interest of Grantor in and to any
and all subleases now or hereafter on or affecting the Property, together with
all security therefor and all monies payable thereunder, subject to the
conditional permission hereinabove given to Grantor to collect the rentals under
any such sublease. Grantor shall also execute and deliver to Collateral Agent
any notification, financing statement or other document reasonably required by
Collateral Agent to perfect the foregoing assignment as to any such sublease.
The provisions of this Section 1.12 shall be subject to the provisions of
paragraph (E).
1.13 Collateral Agent's Performance of Defaults. If Grantor
defaults in the payment of any tax, assessment, encumbrance or other imposition,
in its obligation to furnish insurance hereunder, or in the performance or
observance of any other covenant, condition or term in this Mortgage, the
Indenture Documents or the Notes, Collateral Agent may, to preserve its interest
in the Property, perform or observe the same, and all payments made (whether
such payments
-12-
are regular or accelerated payments) and costs and expenses incurred or paid by
Collateral Agent in connection therewith shall become due and payable
immediately. The amounts so incurred or paid by Collateral Agent together with
interest thereon at the rate per annum specified in Section 2.13 of the
Indenture from the date incurred until paid by Grantor, shall be added to the
Obligations and secured by the lien of this Mortgage. Collateral Agent is hereby
empowered to enter and authorize others to enter upon the Premises or any part
thereof for the purposes of performing or observing any such defaulted covenant,
condition or term, without thereby becoming liable to Grantor or any person in
possession holding under Grantor.
1.14 Use of Property. Grantor covenants that the Property will be
used for the purposes set forth in the Mortgaged Lease.
1.15 Required Notices. Grantor shall notify Collateral Agent
promptly of the occurrence of any of the following: (i) receipt of any material
notice from any governmental authority relating to the Property; (ii) receipt of
any material notice from any tenant leasing all or any portion of the Premises;
(iii) any material change in the occupancy of the Premises; (iv) receipt of any
material notice from the holder of any lien or security interest in the
Property; or (v) commencement of any judicial or administrative proceedings by
or against or otherwise affecting the Property.
1.16 Covenants Regarding Mortgaged Lease.
(a) Grantor hereby warrants and represents as follows: (i) the
Mortgaged Lease is in full force and effect, and, except as disclosed in writing
to Collateral Agent, unmodified by any writing or otherwise; (ii) all rent and
other charges and impositions reserved therein have been paid to the extent they
are payable to the date hereof; (iii) Grantor enjoys the quiet and peaceful
possession of the Premises demised thereby; (iv) Grantor is not in default under
any of the terms thereof, there are no circumstances which, with the passage of
time or the giving of notice or both, would constitute an event of default
thereunder; and (v) the landlord under the Mortgaged Lease is not in default
under any of the terms or provisions thereof on the part of the landlord to be
observed or performed.
(b) Further, with respect to the Mortgaged Lease, Grantor
covenants and agrees as follows: (i) to promptly and faithfully observe, perform
and comply with all of the material terms, covenants and provisions thereof on
its part to be observed, performed and complied with, at all times set forth
therein; (ii) not to do, permit, suffer or refrain from doing anything, as a
result of which, there would be a default under or a breach of any of the terms
thereof; (iii) not to cancel, surrender, modify, amend or in any way alter or
permit the alteration of any of the material terms of the Mortgaged Lease; (iv)
to give the Collateral Agent immediate notice of any default by anyone
thereunder and to promptly deliver to the Collateral Agent a copy of each notice
of default received or delivered by Grantor in connection therewith; (v) to
furnish to the Collateral Agent copies of such information and evidence as the
Collateral Agent may reasonably require concerning Grantor's due observance,
performance and compliance with the terms, covenants and provisions thereof; and
(vi) that any default of Grantor under the Mortgaged Lease shall constitute an
additional Event of Default under this Mortgage.
-13-
(c) In the event of any default by Grantor in the performance of
any of its obligations under the Mortgaged Lease, including, without limitation,
any default in the payment of rent and other charges and impositions made
payable by the lessee thereunder, then, in each and every case, Collateral Agent
may, at its option and without notice, cause the default or defaults to be
remedied and otherwise exercise any and all of the rights of Grantor therein in
the name of and on behalf of Grantor. Grantor shall, on demand, reimburse
Collateral Agent, as applicable, for all advances made and expenses incurred by
Collateral Agent in curing any such default (including, without limitation,
reasonable attorneys' fees).
(e) It is hereby agreed that the fee title and the leasehold
estate in the property demised by the Mortgaged Lease shall not merge but shall
always be kept separate and distinct, notwithstanding the union of said estates
in Grantor or a third party whether by purchase or otherwise. If Grantor
acquires the fee title or any other estate, title or interest in the property
demised by the Mortgaged Lease, or any part thereof, the lien of the Mortgage
shall attach to, cover and be a lien upon such acquired estate, title or
interest and the same shall thereupon be and become a part of the Property with
the same force and effect as if specifically encumbered therein. Xxxxxxx agrees
to execute all instruments and documents which Collateral Agent may reasonably
require to ratify, confirm and further evidence Collateral Agent's lien on the
acquired estate, title or interest. Furthermore, Grantor hereby appoints
Collateral Agent its true and lawful attorney-in-fact to execute and deliver all
such instruments and documents in the name and on behalf of Grantor.
(f) If the Mortgaged Lease is cancelled or terminated, and if
Collateral Agent or a nominee of Collateral Agent shall enter into any new lease
of the property demised thereby, Grantor shall have no right, title or interest
in or to the new lease or the leasehold estate created by such new lease.
(g) Notwithstanding anything to the contrary contained herein,
this Mortgage shall not constitute an assignment of the Mortgaged Lease within
the meaning of any provisions thereof prohibiting their assignment, and
Collateral Agent, as applicable, shall have no liability or obligation
thereunder by reason of its acceptance of this Mortgage. Collateral Agent, as
applicable, shall be liable for the obligations of the lessee arising under the
Mortgaged Lease for only that period of time which Collateral Agent is in
possession of the Property or has acquired, by foreclosure or otherwise, and is
holding all of Grantor's right, title and interest therein.
(h) Notwithstanding anything contained herein to the contrary, and
in addition to any rights, privileges and remedies granted to Collateral Agent
elsewhere in this Mortgage, Collateral Agent shall have, and Grantor hereby
grants to Collateral Agent, any and all rights, privileges and remedies of
leasehold lenders provided for in the Mortgaged Lease without the necessity of
particularly specifying any or all of such rights, privileges and remedies that
are or could be granted to leasehold Collateral Agents pursuant to the Mortgaged
Lease.
(i) Notwithstanding anything contained herein to the contrary, to
the extent the any of the covenants and obligations of Grantor hereunder, or any
of the rights granted to Collateral Agent hereunder, conflict with the
provisions of the Mortgaged Lease, the provisions of the Mortgaged Lease shall
control, and Grantor shall not be required to take any action hereunder
-14-
nor shall Collateral Agent be entitled to exercise any rights hereunder that are
not permitted under the provisions of the Mortgaged Lease.
1.17 Future Indebtedness of Grantor. The lien of this Mortgage
secures, as of the date hereof, without further act, all Obligations of Borrower
and Grantor to Collateral Agent and the other Holders, including any and all
future loans and advances made by Collateral Agent and the other Holders
pursuant to the Indenture to or for the benefit of Borrower or Grantor from time
to time hereafter.
ARTICLE TWO
DEFAULTS
2.01 Event of Default. The term "Event of Default", wherever used
in this Mortgage, shall mean the occurrence of an "Event of Default" as such
term is defined in Section 6.01 of the Indenture.
ARTICLE THREE
REMEDIES
3.01 Acceleration of Maturity. If an Event of Default shall have
occurred and be continuing, then all of the Obligations secured hereby shall, at
Collateral Agent's option, immediately become due and payable without notice or
demand, time being of the essence hereof; and no omission on the part of
Collateral Agent to exercise such option when entitled to do so shall be
construed as a waiver of such right, provided that upon an Event of Default
under clauses (7) or (8) of the definition of "Event of Default" in Section 6.01
of the Indenture, all Obligations shall immediately become due and payable.
3.02 Collateral Agent's Power of Enforcement. If an Event of
Default shall have occurred and be continuing, Collateral Agent may, either with
or without entry or taking possession as hereinabove provided or otherwise, and
without regard to whether or not the Obligations shall be due and without
prejudice to the right of Collateral Agent or Holders thereafter to bring an
action of foreclosure or any other action for any default existing at the time
such earlier action was commenced, proceed by any appropriate action or
proceeding: (a) to enforce payment of the Obligations or the performance of any
term hereof or any other right; (b) to foreclose this Mortgage and to sell, as
an entirety or in separate lots or parcels, the Property under the power of sale
hereinafter provided or the judgment or decree of a court or courts of competent
jurisdiction; and (c) to pursue any other remedy available to it. Collateral
Agent shall take action either by such proceedings or by the exercise of its
power with respect to entry or taking possession, or both, as Collateral Agent
may determine.
3.03 Collateral Agent's Right to Enter and Take Possession,
Operate and Apply Income.
(a) If an Event of Default shall have occurred and be continuing,
(i) Grantor upon demand of Collateral Agent shall forthwith surrender to
Collateral Agent the actual possession and if and to the extent permitted by
law, Collateral Agent itself, or by such officers or agents as
-15-
it may appoint, may enter upon and take possession of the Property and may
exclude Grantor and its agents and employees wholly therefrom and may have joint
access with Grantor to the books, papers and accounts of Grantor; and (ii)
Grantor will pay monthly in advance to Collateral Agent on Collateral Agent's
entry into possession, or to any receiver appointed to collect the rents, income
and other benefits of the Property, the fair and reasonable rental value for the
use and occupation of such part of the Property as may be in possession of
Grantor, and upon default in any such payment will vacate and surrender
possession of such part of the Property to Collateral Agent or to such receiver
and, in default thereof, Grantor may be evicted by summary proceedings or
otherwise.
(b) If Grantor shall for any reason fail to surrender or deliver
the Property or any part thereof after Collateral Agent's demand, Collateral
Agent may obtain a judgment or decree, on behalf of all of the Holders,
conferring on Collateral Agent the right to immediate possession or requiring
Grantor to deliver immediate possession of all or part of the Property to
Collateral Agent, to the entry of which judgment or decree Grantor hereby
specifically consents. Grantor shall pay to Collateral Agent, upon demand, all
reasonable costs and expenses of obtaining such judgment or decree and
compensation to Collateral Agent and the other Holders, its attorneys and
agents, and all such costs, expenses and compensation shall, until paid, be
secured by the lien of this Mortgage.
(c) Upon every such entering upon or taking of possession of the
Property under this Section 3.03, Collateral Agent may hold, store, use,
operate, manage and control the Property and conduct the business thereof, and,
from time to time:
(i) Make all necessary and proper maintenance, repairs,
renewals, replacements, additions, betterments and improvements thereto
and thereon and purchase or otherwise acquire additional fixtures,
personalty and other property;
(ii) Insure or keep the Property insured;
(iii) Manage and operate the Property and exercise all the
rights and powers of Grantor in its name or otherwise with respect to
the same;
(iv) Enter into agreements with others to exercise the
powers herein granted Collateral Agent, all as Collateral Agent from
time to time may determine; and Collateral Agent may collect and
receive all the rents, income and other benefits thereof, including
those past due as well as those accruing thereafter; and shall apply
the monies so received by Collateral Agent in such priority as
Collateral Agent may determine to (1) the payment of the Obligations;
(2) the deposits for taxes and assessments and insurance premiums due;
(3) the cost of insurance, taxes, assessments and proper charges upon
the Property or any part thereof; (4) the expenses of operating,
maintaining, repairing and improving the Property, including with
limitation renting commissions and rental collection commissions paid
to Collateral Agent or agent on behalf of Collateral Agent and the
other Holders or of the receiver; and (5) the reasonable compensation,
expenses and disbursements of the agents, attorneys and other
representatives of Collateral Agent. All costs, expenses and
liabilities of every character incurred by Collateral Agent in
managing, operating and maintaining the Property shall constitute
additional Obligations
-16-
secured hereby. While in possession of the Property, Collateral Agent
or the receiver shall be liable to account only for the rents, issues
and profits actually received.
Collateral Agent shall surrender possession of the Property to Grantor only when
all Obligations secured hereby and all amounts under any of the terms of this
Mortgage shall have been paid and all defaults cured or waived. The same right
of taking possession, however, shall exist if any subsequent Event of Default
shall occur and be continuing.
3.04 Foreclosure.
(a) If an Event of Default shall have occurred and be continuing,
Collateral Agent may, at its option immediately commence foreclosure proceedings
against the Property pursuant to the applicable laws. The commencement by the
Collateral Agent of foreclosure proceedings by advertisement or in equity shall
be deemed an exercise by the Collateral Agent of its option to accelerate the
due date of all sums secured hereby. The Grantor hereby grants power to the
Collateral Agent, in the event of the occurrence of an Event of Default
hereunder, to grant, bargain, sell, release and convey the Property at public
auction or vendue, and upon such sale to execute and deliver to the purchaser(s)
instruments of conveyance pursuant to the terms hereof and to the applicable
laws. The Grantor acknowledges that the foregoing sentence confers a power of
sale upon the Collateral Agent, and that upon default this Mortgage may be
foreclosed by advertisement as described below and in the applicable Michigan
statutes. The Grantor understands that upon an Event of Default, the Collateral
Agent is hereby authorized and empowered to sell the Property, or cause the same
to be sold and to convey the same to the purchaser in any lawful manner,
including but not limited to that provided by Chapter 32 of the Revised
Judicature Act of Michigan, entitled "Foreclosure of Mortgage by Advertisement",
which permits the Collateral Agent to sell the Property without affording the
Grantor a hearing, or giving him actual personal notice. The only notice
required under such Chapter 32 is to publish notice in a local newspaper and to
post a copy of the notice on the Property.
WAIVER: By conferring this power of sale upon the Collateral Agent, the
Grantor, for itself, its successors and assigns, after an opportunity
for consultation with its legal counsel, hereby voluntarily, knowingly
and intelligently waives all rights under the Constitution and Laws of
the United States and under the Constitution and Laws of the State of
Michigan, both to a hearing on the right to exercise and the exercise
of the power of sale, and to notice except as required by the Michigan
statute which provides for Foreclosure of Mortgages by Advertisement.
However, the Grantor reserves the right to timely contest the exercise
of the power of sale by instituting suit against the Collateral Agent
in the circuit court of the county in which the Property is located or
any other court of competent jurisdiction.
Out of the proceeds of said sale, Collateral Agent shall pay: all costs,
charges, expenses, commissions, unpaid taxes, and fees of advertising, selling
and conveying the Property and such other assessments, insurance or other fees
or costs as may have been incurred; a reasonable fee not exceeding five percent
(5%) of the gross proceeds of sale to Collateral Agent, or his successor, in
payment of his services hereunder and of collecting the monies secured by this
Mortgage; a sum sufficient to pay the entire balance owing on the Obligations
secured hereby; and the surplus, if any, to Grantor or the person entitled
thereto.
-17-
3.05 Subleases. Collateral Agent is authorized to foreclose this
Mortgage subject to the rights of any subtenants of the Property, and the
failure to make any such tenants parties defendant to any such foreclosure
proceedings and to foreclose their rights will not be, nor be asserted by
Grantor to be, a defense to any proceedings instituted by Collateral Agent to
collect the sums secured hereby or to collect any deficiency remaining unpaid
after the foreclosure sale of the Property.
3.06 Waiver of Appraisement, Valuation. Stay, Extension and
Redemption Laws. Grantor agrees to the full extent permitted by law that in case
of a default in its part hereunder, neither Grantor nor anyone claiming through
or under Grantor shall or will set up, claim or seek to take advantage of any
appraisement, valuation, extension or redemption laws now or hereafter in force,
in order to prevent or hinder the enforcement or foreclosure of this Mortgage or
the absolute sale of the Property or the final and absolute putting into
possession thereof, immediately after such sale, of the purchasers thereat, and
Grantor, for itself and all who may at any time claim through or under Grantor,
hereby waives, to the full extent that Grantor may lawfully so do, the benefit
of all such laws, and any and all right to have the assets comprising the
Property marshaled upon any foreclosure of the lien hereof and agrees that
Collateral Agent or any court having jurisdiction to foreclose such lien may
sell the Property in part or as an entirety.
3.07 Receiver. If an Event of Default shall have occurred and be
continuing, Collateral Agent, to the extent permitted by law and without regard
to the value or adequacy of the security for the Obligations secured hereby,
shall be entitled as a matter of right if it so elects to the appointment of a
receiver to enter upon and take possession of the Property and to collect all
rents, income and other benefits thereof and apply the same as the court may
direct, and any such receiver shall be entitled to hold, store, use, operate,
manage and control the Property and conduct the business thereof as would
Collateral Agent pursuant to Section 3.03(c) above. The expenses, including
receiver's fees, reasonable attorney's fees, costs and agent's compensation,
incurred pursuant to the powers herein contained shall be secured by this
Mortgage. The right to enter and take possession of and to manage and operate
the Property and to collect all rents, income and other benefits thereof,
whether by a receiver or otherwise, shall be cumulative to any other right or
remedy hereunder or afforded by law and may be exercised concurrently therewith
or independently thereof. Collateral Agent shall be liable to account only for
such rents, income and other benefits actually received by Collateral Agent,
whether received pursuant to this paragraph or Section 3.03. Notwithstanding the
appointment of any receiver or other custodian, Collateral Agent shall be
entitled as pledgee to the possession and control of any cash, deposit, or
instruments at the time held by, or payable or deliverable under the terms of
this Mortgage to, Collateral Agent.
3.08 Suits to Protect the Property. Collateral Agent shall have the
power and authority to institute and maintain any suits and proceedings as
Collateral Agent may deem advisable (a) to prevent any impairment of the
Property by any acts which may be unlawful or any violation of this Mortgage,
(b) to preserve or protect its interest in the Property, and (c) to restrain the
enforcement of or compliance with any legislation or other government enactment,
rule or order that may be unconstitutional or otherwise invalid, if the
enforcement or compliance with such enactment, rule or order might impair the
security hereunder or be prejudicial to Collateral Agent's or Holders' interest.
-18-
3.09 Proofs of Claim. In the case of any receivership, insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings affecting Grantor or any guarantor, co-maker or endorser of
any Grantor's obligations, its creditors or its property, Collateral Agent, to
the extent permitted by law, shall be entitled to file such proofs of claim and
other documents as may be necessary or advisable in order to have its claims
allowed in such proceedings for the entire amount due and payable by Grantor
under this Mortgage, the Indenture, the Indenture Documents and any other
instrument securing the Obligations, at the date of the institution of such
proceedings, and for any additional amounts which may become due and payable by
Grantor after such date.
3.10 Application of Monies by Collateral Agent.
(a) Upon the occurrence and during the continuance of an Event of
Default, Collateral Agent shall be entitled to sue for and to recover judgment
against Borrower and/or Grantor for the whole amount of the Obligations due and
unpaid together with costs and expenses, including without limitation, the
reasonable compensation, expenses and disbursements of Collateral Agent's and
Holders' agents, attorneys and other representatives, either before, after or
during the pendency of any proceedings for the enforcement of this Mortgage, and
the right of Collateral Agent to recover such judgment shall not be affected by
any taking possession or foreclosure sale hereunder, or by the exercise of any
other right, power or remedy for the enforcement of the terms of this Mortgage,
or the foreclosure of the lien hereof.
(b) In case of a foreclosure sale of all or any part of the
Property and the application of the proceeds of sale to the payment of the
Obligations secured hereby, Collateral Agent shall be entitled to enforce
payment from Grantor of all Obligations then remaining due and unpaid and to
recover judgment against Borrower and/or Grantor for any portion thereof
remaining unpaid, with interest.
(c) Grantor hereby agrees, to the extent permitted by law, that no
recovery of any such judgment by Xxxxxxxxxx Agent and no attachment or levy of
any execution upon any of the Property or any other property shall in any way
affect the lien of this Mortgage upon the Property or any part thereof or any
lien, rights, powers or remedies of Holders hereunder, but such lien, rights,
powers and remedies shall continue unimpaired as before.
(d) Any monies collected or received by Collateral Agent under
this Section 3.10 shall be applied to the payment of reasonable compensation,
expenses and disbursements of the agents, attorneys, and other representatives
of Collateral Agent, and the balance remaining shall be applied to the payment
of the Obligations secured hereby.
(e) The provisions of this paragraph shall not be deemed to limit
or otherwise modify the provisions of any guaranty of the Obligations of
Guarantor to Collateral Agent.
3.10 Delay or Omission; No Waiver. No delay or omission of
Collateral Agent to exercise any right, power or remedy accruing upon any Event
of Default shall exhaust or impair any such right, power or remedy or shall be
construed to waive any such Event of Default or to
-19-
constitute acquiescence therein. Every right, power and remedy given to
Collateral Agent may be exercised from time to time and as often as may be
deemed expedient by Collateral Agent.
3.11 No Waiver of One Default to Affect Another. No waiver of any
Event of Default hereunder shall extend to or affect any subsequent or any other
Event of Default then existing, or impair any rights, powers or remedies
consequent thereon. If Collateral Agent (a) grants forbearance or an extension
of time for the payment of any Obligations secured hereby; (b) takes other or
additional security for the payment thereof; (c) waives or does not exercise any
right granted in the Indenture; (d) releases any part of the Property from the
lien of this Mortgage; (e) consents to the filing of any map, plat or replat of
the Land; (f) consents to the granting of any easement on the Land; or (g) makes
or consents to any agreement changing the terms of this Mortgage or
subordinating the lien or any charge hereof, no such act or omission shall
release, discharge, modify, change or affect the Obligations of Grantor. No such
act or omission shall preclude Collateral Agent or Holders from exercising any
right, power or privilege herein granted or intended to be granted in case of
any Event of Default then existing or of any subsequent Event of Default nor
shall the lien of this Mortgage be affected thereby.
3.12 Discontinuance of Proceedings; Position of Parties Restored.
If Collateral Agent Holders shall have proceeded to enforce any right or remedy
under this Mortgage by foreclosure, entry or otherwise and such proceedings
shall have been discontinued or abandoned for any reason, or such proceedings
shall have resulted in a final determination adverse to Collateral Agent or
Holders, then and in every such case Grantor and Collateral Agent shall be
restored to their former positions and rights hereunder, and all rights, powers
and remedies of Collateral Agent shall continue as if no such proceedings had
occurred or had been taken.
3.13 Remedies Cumulative. No right, power or remedy conferred upon
or reserved to Collateral Agent by this Mortgage or the Notes is exclusive of
any other right, power or remedy, but each and every such right, power and
remedy shall be cumulative and concurrent and shall be in addition to any other
right, power and remedy given under the Notes, or now or hereafter existing at
law, in equity or by statute.
ARTICLE FOUR
TRANSFER OR FURTHER ENCUMBRANCE OF THE PROPERTY
4.01 Transfer of Further Encumbrance of the Property. In the event
of any sale, conveyance, transfer, lease, pledge or further encumbrance of the
Property or any interest in or any part of the Property, or any further
assignment of rents from the Property without the prior written consent of
Collateral Agent then, at Collateral Agent's option, Collateral Agent may
declare all Obligations of Grantor to be due and payable immediately without
demand or notice. Collateral Agent's consent shall be within its sole and
absolute discretion.
-20-
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
5.01 Successors and Assigns Included in Parties. Whenever one of
the parties hereto is named or referred to herein, the heirs, personal
representatives, successors and assigns of such party shall be included and all
covenants and agreements contained in this Mortgage, by or on behalf of Grantor
or Collateral Agent shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed or not.
5.02 Addresses for Notices, Etc.
(a) Except as may be otherwise provided herein, any notice,
report, demand or other instrument authorized or required to be given or
furnished under this Mortgage to Grantor or Collateral Agent shall be in
writing, shall be sent by personal delivery or sent by registered or certified
mail (postage prepaid, return receipt requested), overnight courier, at the
address set forth below:
If to Collateral Agent at: U.S. Bank Trust National Association
Attn: Xxxxxxx X. Xxxxxx, Vice
President 000 Xxxx Xxxxxx, Xxxxx
0000 Xxx Xxxx, XX 00000 Facsimile
No.: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx LLP Attn: Xxxxxx
Xxxxxx, Esq. 000 Xxxx Xxxxxx Xxx
Xxxx, XX 00000 Facsimile No.: (000) 000-0000
If to Grantor, at: Golfsmith International, Inc.
00000 Xxxxx XX-00
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000]
With a copy to: King & Spalding LLP
Attn: Xxxxx Xxxxxx, Esq.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
(b) Either party may change the address to which any such notice,
report, demand or other instrument is to be delivered or mailed, by furnishing
written notice of such change to the other party, but no such notice of change
shall be effective unless and until received by such other party. All notices,
reports, demands or other instruments authorized or required to be sent in
accordance with this Section 5.02. shall be deemed received on the earlier of
the date of actual receipt or 3 Business Days (as defined in the Indenture)
after the deposit thereof in the mail.
-21-
5.03 Headings. The headings of the articles, sections, paragraphs
and subdivisions of this Mortgage are for convenience of reference only, are not
to be considered a part hereof, and shall not limit or expand or otherwise
affect any of the terms hereof.
5.04 Invalid Provisions to Affect No Others. In the event that any
of the covenants, agreements, terms or provisions contained in the Notes shall
be deemed invalid, illegal or unenforceable in any respect, the validity of the
remaining covenants, agreements, terms or provisions contained in the Notes
shall be in no way affected, prejudiced or disturbed thereby; and if any
application of any term, restriction or covenant to any person or circumstances
is deemed illegal or unenforceable, the application of such term, restriction or
covenant to other persons and circumstances shall remain unaffected to the
extent permitted by law.
5.05 Changes, Etc. Neither this Mortgage, nor any term hereof, may
be changed, waived, discharged or terminated orally, or by any action or
inaction, but only by an instrument in writing signed by Collateral Agent or
Grantor, as the case may be, against which enforcement of the change, waiver,
discharge or termination is sought. The modification hereof or of any of the
Notes or the release of any part of the Property from the lien hereof shall not
impair the priority of the lien of this Mortgage.
5.06 Governing Law. THIS MORTGAGE SHALL BE GOVERNED, CONSTRUED,
APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MICHIGAN.
5.07 Substitution of Collateral Agent. If Collateral Agent shall
for any reason desire to resign or is removed as the Collateral Agent hereunder,
and a new Collateral Agent is appointed in its place or stead, such new
Collateral Agent shall thereupon become successor to the title to the Property
and the same shall become vested in him in trust for the purposes and objects of
these presents, with all the power, duties, and obligations herein conferred on
the Collateral Agent, in the same manner and to the same effect as though he or
it were named herein as Collateral Agent.
[Remainder of Page Intentionally Left Blank]
-22-
IN WITNESS WHEREOF, Xxxxxxx has caused this Deed of Trust to be duly
executed under seal by its duly authorized officer on the day and year first
above written.
GOLFSMITH NU, L.L.C., a Delaware
limited liability company
By: Golfsmith Holdings, L.P., its sole
member
By: Golfsmith GP Holdings, Inc., its general
partner
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Secretary
STATE OF New York )
)
COUNTY OF New York )
This instrument was acknowledged before me on the 1st day of December, 2003 by
Xxxxx Xxxxxx, Secretary of Golfsmith GP Holdings, Inc., the general partner of
Golfsmith Holdings, L.P., which is the sole member of Golfsmith USA, L.L.C., a
Delaware limited liability company.
/s/ XXXXXXX X. XXXXXX
---------------------------
Notary Public, New York County, NY
My Commission Expires: September 3, 2006
XXXXXXX X. XXXXXX
Notary Public, State Of New York
No. 01MA6079999
Qualified In New York County
Commission Expires September 3, 2006
-23-
SCHEDULE A
TO
MORTGAGE
Legal Description
[Attached]
-24-
LEGAL DESCRIPTION
LEGAL DESCRIPTION (Sidewell No. 1404376001)
Part of of the Southwest 1/4 of Section 4, T.3N., R10E., City of Auburn Hills.
Oakland County, Michigan described AS beginning at the South 1/4 corner of
Section 4 and proceeding thence South 87 degrees 26 minutes 43 seconds West
1502.29 feet along the South line of Section 4; thence North 04 degrees 46
minutes 33 seconds West 2825.63 feet along the West line of the East 1/2 of
the Southwest 1/4 Section 4; thence North 89 degrees 47 minutes 50 seconds East
725.00 feet along the East and West 1/4 line of Section 4; thence South 56
degrees 57 minutes 46 seconds East 256.25 feet along the Southwesterly
right-of-way line of Joslyn Road; thence along the Southwesterly right-of-way
line of Joslyn Road on 07 degrees 32 minutes 04 seconds curve to the left with a
radius of 1205.92 feet and whose chord bears South 38 degrees 01 minute 16
seconds East 158.47 feet thence South 41 degrees 47 minutes 04 seconds East
662.31 feet along the Southwesterly right-of-way of Joslyn Road; thence South 48
degrees 12 minutes 56 seconds West 25.00 feet along the right-of-way of Joslyn
Road; thence South 41 degrees 47 minutes 04 seconds East 101.91 feet along the
Southwesterly right-of-way line of Joslyn Road; thence South 06 degrees 14
minutes 42 seconds East 1911.72 feet along the North and South 1/4 line of
Section 4 to the point of beginning, containing 88.0219 acres except any pan
taken, used or deeded for road purposes and being subject to easements of
record.
PH4-04-376-002
