EXHIBIT 2.4
If Premises located in State of New York:
SECTION _____
BLOCK _____
LOT _____
Premises:
As of November ___, 1998
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
("this Mortgage")
FROM
NEW HORIZONS OF YONKERS, INC.,
a Delaware corporation
and
BRADLEES STORES, INC.,
a Massachusetts corporation
(collectively, "Mortgagor")
Address of Mortgagor: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TO
[______________________________________]
("Mortgagee")
Address of Mortgagee: _____________________________
_____________________________
_____________________________
Mortgage Amount: $40,000,000.00
This instrument prepared by, and after recording please return to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
1301 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
TABLE OF CONTENTS
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Page
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RECITAL 1
CERTAIN DEFINITIONS AND RULES OF CONSTRUCTION 1
GRANTING CLAUSE 2
ARTICLE I COVENANTS OF MORTGAGOR 3
Section 1.01. Warranty of Title; Power and Authority......... 3
Section 1.02. Good Faith Contests............................ 3
Section 1.03. Taxes on Mortgagee............................. 3
Section 1.04. Insurance...................................... 3
ARTICLE II EVENTS OF DEFAULTS AND REMEDIES 3
Section 2.01. Events of Default and Certain Remedies......... 3
ARTICLE III MISCELLANEOUS 4
Section 3.01. Modifications and Waivers in Writing........... 4
Section 3.02. Security Agreement............................. 4
Section 3.03. Notices........................................ 4
Section 3.04. Successors and Assigns......................... 4
Section 3.05. Counterparts................................... 4
Section 3.06. Substitute Mortgages........................... 5
Section 3.07. Releases....................................... 5
Section 3.08. No Merger of Interests......................... 5
Section 3.09. New York Provisions............................ 5
Section 3.10. Further Encumbrances........................... 6
DOCUMENT NUMBER: 250418.6
ATTORNEY NAME: Napjus
ROOM: 2942
PHONE: 6306
CLIENT NAME/NUMBER: 020513
MATTER NAME/NUMBER: 53311
DOCUMENT NAME: Leasehold Mortgage
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
THE AMOUNT OF THIS MORTGAGE IS FORTY MILLION AND NO/100THS DOLLARS
($40,000,000).
RECITAL
New Horizons of Yonkers, Inc., a wholly owned subsidiary of Bradlees
Stores, Inc., is the owner of a leasehold interest in the premises described in
SCHEDULE A-1 (the "Yonkers Property") and Bradlees Stores, Inc. is the owner of
a leasehold interest in the premises described in SCHEDULE A-2 (the "Union
Square Property") (Schedule A-1 and Schedule A-2, collectively, "Schedule A").
Bradlees Stores, Inc. ("Issuer") will issue notes in an aggregate amount of
FORTY MILLION AND NO/100THS DOLLARS ($40,000,000) (the "Loan") to "Noteholders"
pursuant to the Indenture identified below, and in order to secure FORTY MILLION
AND NO/100THS DOLLARS ($40,000,000) (the "Mortgage Amount") of the obligations
of Issuer under the Notes, Mortgagor has granted this Mortgage to Mortgagee as
Trustee for the Noteholders. The maximum amount secured hereby at execution or
which under any contingency may become secured hereby at any time hereafter is
the Mortgage Amount and all interest in respect thereof, plus all amounts
expended by Mortgagee following a default hereunder in respect of insurance
premiums and real estate taxes.
CERTAIN DEFINITIONS AND RULES OF CONSTRUCTION
Mortgagor and Mortgagee agree that, unless otherwise defined herein or
unless the context otherwise specifies or requires, capitalized terms in the
Recital and elsewhere in this Mortgage shall have the meanings ascribed to them
in the Indenture.
"Events of Default" means the events and circumstances described as such in
Section 2.01.
"Ground Lease" means the leases identified in SCHEDULE A covering the
property described in SCHEDULE A.
"Improvements" means the leasehold interest in all structures or buildings,
and replacements thereof, now or hereafter located upon the Premises created by
the Ground Lease.
"Indenture" means that certain Indenture by and among Bradlees Stores,
Inc., Bradlees, Inc. and [TRUSTEE] dated the date hereof, as the same may
hereafter be amended, modified or supplemented from time to time.
"Loan" means the loan made by Mortgagee to Issuer pursuant to the Indenture
evidenced by the Notes and secured hereby.
"Premises" means the leasehold interests in the premises described in
SCHEDULE A created by the Ground Lease, including all of the easements, rights,
privileges and appurtenances (including air or development rights) thereunto
belonging or in anywise appertaining, and all of the estate, right, title,
interest, claim or demand whatsoever of Mortgagor therein and in the streets and
ways adjacent thereto, either in law or in equity, in possession or expectancy,
now or hereafter acquired, and as used herein shall, unless the context
otherwise requires, be deemed to include the Improvements.
"Proceeds" means all proceeds of the conversion, voluntary or involuntary,
of any of the Premises or Improvements into cash or liquidated claims,
including, without limitation, proceeds of any sale or assignment of the
Premises, insurance and condemnation awards.
Except as expressly indicated otherwise, when used in this Mortgage (i)
"or" is not exclusive, (ii) "hereunder", "herein", "hereof" and the like refer
to this Mortgage as a whole, (iii) "Article", "Section" and "Schedule" refer to
Articles, Sections and Schedules of this Mortgage, (iv) terms defined in the
singular have a correlative meaning when used in the plural and vice versa, (v)
a reference to a law or statute includes any amendment or modification to, or
replacement of, such law or statute and (vi) a reference to an agreement,
instrument or document means such agreement, instrument or document as the same
may be amended, modified or supplemented from time to time in accordance with
its terms and as permitted hereby and by the other documents executed or
delivered to Mortgagee in connection with the Loan. The cover page and all
Schedules hereto are incorporated herein and made a part hereof. Any table of
contents and the headings and captions herein are for convenience only and shall
not affect the interpretation or construction hereof. Unless the context
otherwise requires, the term "Mortgagor" as used herein shall mean New Horizons
of Yonkers, Inc. with respect to the Yonkers Property and Bradlees Stores, Inc.
with respect to the Union Square Property, mutatis mutandis.
GRANTING CLAUSE
NOW, THEREFORE, Mortgagor, in consideration of the premises and in order to
secure the payment of both the principal of, and the interest and any other sums
payable under the Notes or the Indenture and the performance and observance of
all the provisions hereof and of the Notes or the Indenture, hereby gives,
grants, bargains, sells, warrants, aliens, remises, releases, conveys, assigns,
transfers, mortgages, hypothecates, deposits, pledges, sets over and confirms
unto Mortgagee, all its estate, right, title and interest in, to and under the
Premises and the Improvements (hereinafter, the "Mortgaged Property") whether
now owned or held or hereafter acquired and all Proceeds.
TO HAVE AND TO HOLD unto Mortgagee, its successors and assigns forever,
provided, however, that this Mortgage is being delivered to you upon the express
condition that if the Loan is repaid in full in accordance with the Indenture,
this Mortgage and the lien created hereby shall cease, terminate and be void.
ARTICLE I
4
COVENANTS OF MORTGAGOR
Mortgagor covenants and agrees as follows:
Section 1.01. Warranty of Title; Power and Authority.
------------- --------------------------------------
Mortgagor warrants that it is the owner of a valid and subsisting interest as
tenant under the Ground Lease, that the Ground Lease is in full force and
effect, that the Ground Lease is subject to no lien, charge or encumbrance of
any kind except as disclosed pursuant to the Bankruptcy Proceedings.
Section 1.02. Good Faith Contests.
------------- -------------------
Nothing in this Article shall require the payment or discharge of any obligation
imposed upon Mortgagor by this Article so long as Mortgagor shall in good faith
and at its own expense contest the same or the validity thereof by appropriate
legal proceedings which shall operate to prevent the collection thereof or other
realization thereon and the sale or forfeiture of the Mortgaged Property or any
part thereof to satisfy the same.
Section 1.03. Taxes on Mortgagee.
------------- ------------------
Mortgagor will pay any taxes, except income taxes, imposed on Mortgagee by
reason of its ownership of the Notes or this Mortgage.
Section 1.04. Insurance.
------------- ---------
Mortgagor will at all times provide, maintain and keep in force the insurance
required by the Ground Lease.
ARTICLE II
EVENTS OF DEFAULTS AND REMEDIES
Section 2.01. Events of Default and Certain Remedies.
------------- --------------------------------------
If an Event of Default occurs and is continuing under the Indenture, or then,
upon acceleration of the obligations incurred by the Notes:
I. Mortgagee, with or without entry, personally or by its agents or
attorneys, insofar as applicable, may :
(1) sell the Mortgaged Property to the extent permitted and
pursuant to the procedures provided by law, and all estate, right, title
and interest, claim and demand therein, and right of redemption thereof, at
one (1) or more sales as an entity or in parcels or parts, and at such time
and place upon such terms and after such notice thereof as may be required
or permitted by law; or
(2) institute proceedings for the complete or partial
foreclosure hereof; or
5
(3) take such steps to protect and enforce its rights whether by
action, suit or proceeding in equity or at law, or in aid of the execution
of any power herein granted, or for any foreclosure hereunder, or for the
enforcement of any other appropriate legal or equitable remedy or otherwise
as Mortgagee shall elect.
ARTICLE III
MISCELLANEOUS
Section 3.01. Modifications and Waivers in Writing.
------------- ------------------------------------
No provision hereof may be changed, waived, discharged or terminated orally or
by any other means except an instrument in writing signed by the party against
whom enforcement of the change, waiver, discharge or termination is sought. Any
agreement hereafter made by Mortgagor and Mortgagee relating hereto shall be
superior to the rights of the holder of any intervening or subordinate lien or
encumbrance.
Section 3.02. Security Agreement.
------------- ------------------
This Mortgage constitutes a security agreement under the applicable Uniform
Commercial Code with respect to the Proceeds. In addition to the rights and
remedies granted to Mortgagee by other applicable law or hereby, Mortgagee shall
have all of the rights and remedies with respect to the Proceeds as are granted
to a secured party under the applicable Uniform Commercial Code. Upon
Mortgagee's request, Mortgagor shall promptly make the Proceeds available to
Mortgagee in a manner acceptable to Mortgagee. Any notice of sale, disposition
or other intended action by Mortgagee with respect to Proceeds sent to Mortgagor
in accordance with the provisions hereof at least five (5) days prior to such
action shall constitute reasonable notice to Mortgagor. The proceeds of any
such sale or disposition, or any part thereof, shall be applied by Mortgagee to
the payment of the indebtedness secured hereby in accordance with the applicable
provisions of the Indenture.
Section 3.03. Notices.
------------- -------
All notices, demands, consents, approvals and statements required or permitted
hereunder shall be in writing and shall be deemed to have been sufficiently
given or served for all purposes, if to Mortgagor or Mortgagee at its respective
address stated above, when given or served in accordance with the terms and
provisions of Section 1.15 of the Indenture, or at such other address of which a
party shall have notified the party giving such notice in accordance with the
provisions of this Section.
Section 3.04. Successors and Assigns.
------------- ----------------------
All of the grants, covenants, terms, provisions and conditions herein shall run
with the land and shall apply to, bind and inure to the benefit of, the
respective successors and assigns of Mortgagor and Mortgagee.
Section 3.05. Counterparts.
------------- ------------
This Mortgage may be executed in any number of counterparts and each of such
6
counterparts shall for all purposes be deemed to be an original; and all such
counterparts shall together constitute but one and the same mortgage.
Section 3.06. Substitute Mortgages.
------------- --------------------
Mortgagor and Mortgagee shall, upon their mutual agreement to do so, execute
such documents as may be necessary in order to effectuate the modification
hereof, including the execution of substitute mortgages, so as to create two (2)
or more liens on the Mortgaged Property in such amounts as may be mutually
agreed upon but in no event to exceed, in the aggregate, the Mortgage Amount; in
such event, Mortgagor covenants and agrees to pay the reasonable fees and
expenses of Mortgagee and its counsel in connection with any such modification.
Section 3.07. Releases.
------------- --------
Mortgagee agrees to release the Premises and the Improvements in
the Union Square Property or the Yonkers Property, as the case may be, from the
lien of this Mortgage upon the sale thereof pursuant to an agreement approved by
Mortgagor's Board of Directors (the "Sale Agreement") and the receipt by
Mortgagee of the proceeds payable to Mortgagor pursuant to the Sale Agreement
net of (i) all costs arising from or relating to the sale of the Mortgaged
Property (including, but not limited to, attorneys' fees) and (ii) adjustments
applicable to title closings as recommended by the Real Estate Board of New
York, Inc.;
Mortgagee agrees to release the Premises and the Improvements in
the Union Square Property or the Yonkers Property, as the case may be, from the
lien of this Mortgage upon receipt by Mortgagee of a written request therefor
accompanied by a copy of a written notice of default from the landlord under the
Ground Lease in question citing the granting of this Mortgage as the basis for
the default so noticed (the "Default Release Request").
Any release requested by Mortgagor pursuant to (b) above shall
not include a release of the security interest in the Proceeds created hereby
and any release pursuant to (b) above shall expressly reserve Mortgagee's
security interest in the Proceeds. Mortgagee agrees to deliver a release
pursuant to a Default Release Request no later than five days prior to the
expiration of any grace period provided for in the notice of default
accompanying the Default Release Request.
Section 3.08. No Merger of Interests.
------------- ----------------------
Unless expressly provided otherwise, in the event that ownership hereof and
title to the fee and/or leasehold estates in the Premises encumbered hereby
shall become vested in the same person or entity, this Mortgage shall not merge
in said title but shall continue to be and remain a valid and subsisting lien on
said estates in the Premises for the amount secured hereby.
Section 3.09. New York Provisions.
------------- -------------------
Mortgagor hereby makes the following statements: "This Mortgage does not cover
real property principally improved or to be improved by one (1) or more
structures containing
7
in the aggregate not more than six (6) residential dwelling units, each having
its own separate cooking facilities." and (b) the covenants and conditions
contained herein, other than those included in the New York Statutory Short Form
of Mortgage, shall be construed as affording to Mortgagee rights additional to,
and not exclusive of, the rights conferred under the provisions of Sections 254,
271 and 272 of the Real Property Law of the State of New York, all of which are
incorporated herein by reference to the extent applicable.
Section 3.10. Further Encumbrances.
------------- --------------------
In consideration of the granting of this Mortgage, Mortgagee hereby agrees that
Mortgagor may grant easements, enter into subleases or other agreements further
encumbering the Mortgaged Property without the consent of Mortgagee. Mortgagee
agrees that at the request of Mortgagor, Mortgagee shall consent to and
subordinate the lien of this Mortgage to any easements, subleases or further
encumbrances against the Mortgaged Property. Notwithstanding the foregoing, no
encumbrance securing any indebtedness will be permitted unless such encumbrance
is expressly subordinate to this Mortgage.
IN WITNESS WHEREOF, this Mortgage has been duly executed and delivered by
Mortgagor.
BRADLEES STORES, INC.
By [SEAL]
Name:
Title:
NEW HORIZONS OF YONKERS, INC.
By [SEAL]
Name:
Title:
Attest:
____________________
Name:
Title:
Witnesses:
8
____________________
Name:
____________________
Name:
▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
County of New York )
On the ____ day of _____________ in the year 1998, before me, the
undersigned, a notary public in and for said state, personally appeared
_______________ ______________, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
______________________________
Notary Public
My Commission Expires:
_____________________
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.:
County of New York )
On the ____ day of _____________ in the year 1998, before me, the undersigned,
a notary public in and for said state, personally appeared _______________
______________, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
______________________________
Notary Public
My Commission Expires:
_____________________
11
SCHEDULE A-1
[Legal Description of Yonkers Property]
12
SCHEDULE A-2
[Legal Description of Union Square Property]
13
