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CHAR1\532061_ 2
CHAR1\532061_ 2
Drawn By and Return To:
Moore & Van Allen, PLLC (ESB)
Bank of America Corporate Center
100 North Tryon Street, Floor 47
Charlotte, North Carolina 28202-4003
STATE OF SOUTH CAROLINA )
)
COUNTY OF RICHLAND )
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT (this "Mortgage") is made and entered
into as of the 28th day of April, 2000, by and between
POLICY MANAGEMENT SYSTEMS CORPORATION, a South Carolina corporation, whose
address is One PMSC Center, Blythewood, South Carolina 29016 (the "Mortgagor");
and
BANK OF AMERICA, N.A., a national banking association, in its capacity as
administrative agent (in such capacity, the "Administrative Agent") for the
lenders from time to time party to the Credit Agreement and the Term Loan
Agreement described herein (the "Lenders") with a mailing address of 100 N.
Tryon Street, Business Services Group, 15th Floor, NC1-007-17-15, Charlotte,
North Carolina 28255, Attn: Michael J. McKenney.
WHEREAS, the Mortgagor is the owner of the fee simple interest in the real
property described on Exhibit A attached hereto and incorporated herein by
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reference;
WHEREAS, the Mortgagor, Administrative Agent and Lenders are parties to (i)
that certain Credit Agreement dated as of August 8, 1997, as amended by a First
Amendment to Credit Agreement dated as of November 5, 1999, as further amended
by a Second Amendment to Credit Agreement dated as of February 10, 2000, as
further amended by a Third Amendment to Credit Agreement dated as of March 30,
2000, as further amended by a Fourth Amendment to Credit Agreement dated as of
April 24, 2000 ("Credit Agreement") pursuant to which the Lenders established a
revolving credit facility ("Credit Facility") and (ii) that certain Term Loan
Agreement dated as of November 5, 1999 as amended by a First Amendment to Term
Loan Agreement dated as of February 10, 2000, as further amended by a Second
Amendment to Term Loan Agreement dated as of March 30, 2000, as further amended
by a Third Amendment to Term Loan Agreement dated as of April 24, 2000 ("Term
Loan Agreement") pursuant to which the Lenders extended a term loan ("Term
Loan") (the Credit Agreement and the Term Loan Agreement and any and all
documents executed in connection therewith are hereinafter collectively referred
to as the "Credit Documents");
WHEREAS, the Lenders have agreed to modify certain provisions of the Credit
Facility and Credit Agreement, Term Loan and Term Loan Agreement provided that,
among other things, the Mortgagor executes and delivers this Mortgage.
W I T N E S S E T H:
- - - - - - - - - -
In order to secure the repayment of the aforesaid Credit Facility and Term
Loan together with any renewals or extensions or modifications thereof upon the
same or different terms or at the same or different rate of interest and also to
secure: (i) all future advances and readvances that may subsequently be made to
the Mortgagor by the Lenders evidenced by any promissory notes given in
connection with the aforesaid Credit Facility and Term Loan, and all renewals
and extensions thereof; (ii) all obligations under the Credit Agreement and the
Term Loan Agreement; and (iii) all other indebtedness of the Mortgagor to the
Lenders pursuant to the Credit Facility and Term Loan, now or hereafter
existing, whether direct or indirect, the maximum amount of all indebtedness
outstanding at any one time secured hereby not to exceed $250 million, plus
interest thereon, all charges and expenses of collection incurred by
Administrative Agent including court costs and reasonable attorney's fees.
The Mortgagor, in consideration of the indebtedness herein recited and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, grants, mortgages, remises, aliens, assigns and conveys to
the Administrative Agent and the Administrative Agent's successors and permitted
assigns, WITH MORTGAGE COVENANTS, subject to the further terms of this Mortgage,
all of the Mortgagor's right, title and interest (thereunder or otherwise) in
and to the following described land, real property interests, buildings,
improvements, fixtures, furniture and appliances and other personal property:
(a) All that tract or parcel of land and other real property interests
in Richland County, South Carolina more particularly described in Exhibit A
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attached hereto and made a part hereof together with all of Mortgagor's right,
title and interest in, to and under all rights of way, easements, privileges and
appurtenances relating or appertaining to such real estate and all water and
water rights, sewer and sewer rights, ditches and ditch rights, minerals, oil
and gas rights, royalties, lease or leasehold interests owned by Mortgagor, now
or hereafter used in connection with or appurtenant to or related to such real
estate, and all interests of the Mortgagor now owned or hereafter acquired in
and to streets, roads, alleys and public places, now or hereafter used in
connection with such real estate, and all existing or future licenses,
contracts, permits and agreements required or used in connection with the
ownership, operation or maintenance of such real estate, and any and all
insurance proceeds, and any and all awards, including interest, previously or
hereafter made to Mortgagor for taking by eminent domain or in lieu thereof
(collectively, the "Land"); and
(b) All buildings and improvements of every kind and description now or
hereafter erected or placed on the Land (the "Improvements") and all materials
intended for construction, reconstruction, alteration and repair of such
Improvements now or hereafter erected thereon, all of which materials shall be
deemed to be included within the Premises (as hereinafter defined) immediately
upon the delivery thereof to the Land, and all fixtures and articles of personal
property now or hereafter owned by the Mortgagor and attached to or contained in
and used in connection with the Land and Improvements including, but not limited
to, all furniture, furnishings, apparatus, machinery, equipment, motors,
elevators, fittings, radiators, ranges, refrigerators, awnings, shades, screens,
blinds, carpeting, office equipment and other furnishings and all plumbing,
heating, lighting, cooking, laundry, ventilating, refrigerating, incinerating,
air conditioning and sprinkler equipment and fixtures and appurtenances thereto
and all renewals or replacements thereof or articles in substitution thereof,
whether or not the same are or shall be attached to the Land and Improvements in
any manner (the "Tangible Personalty") and all proceeds of the Tangible
Personalty (hereinafter, the Land, Improvements and Tangible Personalty may be
collectively referred to as the "Premises").
TO HAVE AND HOLD the same, together with all privileges, hereditaments,
easements and appurtenances thereunto belonging, to the Administrative Agent and
the Administrative Agent's successors and assigns to secure the indebtedness
herein recited.
And, as additional security for said indebtedness, the Mortgagor hereby
assigns to the Administrative Agent all right, title and interest of the
Mortgagor in and to the security deposits, rents, issues, profits and revenues
of the Premises from time to time accruing (the "Rents and Profits").
Additionally, the Mortgagor hereby grants, transfers and assigns to
Administrative Agent all the right, title and interest of Mortgagor in and to
all existing and future leases, subleases, licenses and other agreements for the
use and occupancy of all or part of the Premises, together with all guarantees
of the lessee's obligations thereunder (collectively, the "Leases"), whether
oral or written, for a definite term or month-to-month. This assignment shall
extend to and cover any and all extensions and renewals and future leases and to
any and all present and future rights against guarantor(s) of any such
obligations and to any and all Rents and Profits collected under the Leases or
derived from the Premises. In pursuance of this assignment, and not in lieu
hereof, Mortgagor shall, upon request from Administrative Agent, execute and
deliver to Administrative Agent separate specific assignments of rents and
leases covering some or all of the Leases, the terms of such assignments being
incorporated herein by reference. This assignment of leases is absolute and
effective immediately and without possession; however, Mortgagor shall have a
revocable license to receive, collect and enjoy the Rents and Profits accruing
from the Premises until an Event of Default has occurred. Upon the occurrence
of any Event of Default, pursuant to which the Administrative Agent or the
Required Lenders have decided to exercise any rights or remedies granted thereto
in the Credit Agreement or the Term Loan Agreement, the license shall be revoked
automatically, without need of notice, possession, foreclosure or any other act
or procedure, and all Rents and Profits assigned hereby shall thereafter be
payable to Administrative Agent. PROVIDED ALWAYS, however, that if Mortgagor or
Guarantors shall pay unto Administrative Agent and Lenders the obligations
secured by this Mortgage, and if Mortgagor or Guarantors shall duly, promptly
and fully perform, discharge, execute, effect, complete, comply with and abide
by each of the agreements, conditions and covenants of the Credit Documents,
then this assignment and the estates and interests hereby granted and created
shall terminate.
As additional collateral and further security for said indebtedness, the
Mortgagor does hereby assign to the Administrative Agent and grants to the
Administrative Agent a security
interest in all of the right, title and interest of the Mortgagor in and to any
and all insurance policies and proceeds thereof, condemnation awards, any and
all leases of personal property (including equipment leases), rental agreements,
sales contracts, management contracts, franchise agreements, construction
contracts, architects' contracts, technical services agreements, or other
contracts, licenses and permits now or hereafter affecting the Premises (the
"Intangible Personalty") or any part thereof, and the Mortgagor agrees to
execute and deliver to the Administrative Agent such additional instruments, in
form and substance reasonably satisfactory to the Administrative Agent, as may
hereafter be reasonably requested by the Administrative Agent to evidence and
confirm said assignment; provided, however, that acceptance of any such
assignment shall not be construed as a consent by the Administrative Agent to
any lease, rental agreement, management contract, franchise agreement,
construction contract, technical services agreement or other contract, license
or permit, or to impose upon the Administrative Agent any obligation with
respect thereto. Notwithstanding the foregoing provisions, such assignment and
grant of security interest contained herein shall not extend to, and the
Intangible Personalty shall not include, any personalty which is now or
hereafter held by the Mortgagor as licensee, lessee or otherwise, to the extent
that (a) such personalty is not assignable or capable of being encumbered as a
matter of law or under the terms of the license, lease or other agreement
applicable thereto (but solely to the extent that any such restriction shall be
enforceable under applicable law), without the consent of the licensor or lessor
thereof or other applicable party thereto and (b) such consent has not been
obtained; provided, however, that the foregoing assignment and grant of security
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interest shall extend to, and the Intangible Personalty shall include, any and
all proceeds of such personalty to the extent that the assignment or encumbering
of such proceeds is not so restricted under the terms of the license, lease or
other agreement applicable thereto.
All the Tangible Personalty which comprise a part of the Premises shall, as
far as permitted by law, be deemed to be affixed to the aforesaid Land and
conveyed therewith. As to the balance of the Tangible Personalty and the
Intangible Personalty, this Mortgage shall be considered to be a security
agreement which creates a security interest in such items for the benefit of the
Administrative Agent. In that regard, the Mortgagor grants to the
Administrative Agent all of the rights and remedies of a secured party under the
South Carolina Uniform Commercial Code and grants to the Administrative Agent a
security interest in all of the Tangible Personalty and Intangible Personalty.
The Mortgagor and the Administrative Agent covenant, represent and agree as
follows:
ARTICLEI
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Secured Obligations
1.1 Obligations Secured. The obligations secured by this Mortgage are the
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result of a $250 million Credit Facility and Term Loan (hereinafter the loans
and extensions of credit thereunder may be called the "Loans") established by
the Administrative Agent and the Lenders in favor of the Mortgagor pursuant to
the respective terms of the Credit Agreement and the Term
Loan Agreement; terms used but not otherwise defined herein shall have the
meanings provided in the Credit Agreement and the Term Loan Agreement, as the
case may be.
ARTICLE II
The Mortgagor's Covenants, Representations and Agreements
2.1 Title to Property. The Mortgagor represents and warrants to the
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Administrative Agent that (i) it is the owner of the Land, Improvements and
Tangible Personalty (to the extent such Tangible Personalty does not constitute
fixtures), and has the right to convey the same, (ii) that as of the date hereof
title to such property is free and clear of all encumbrances except for the
matters shown on the title insurance policy accepted by the Administrative Agent
in connection with this Mortgage (the "Permitted Encumbrances") and for those
liens permitted by the Credit Agreement and the Term Loan Agreement (the
"Permitted Liens"), and (iii) it will warrant and defend the title to such
property except for the Permitted Encumbrances and the Permitted Liens against
the claims of all Persons. As to the balance of the Premises, the Rents and
Profits and the Intangible Personalty, the Mortgagor represents and warrants
that it has title to such property, that title as of the date hereof to such
property is free and clear of all encumbrances except for the Permitted
Encumbrances and the Permitted Liens, that it has the right to convey such
property and that it will warrant and defend such property except for the
Permitted Encumbrances and the Permitted Liens against the claims of all
Persons.
2.2 Taxes and Fees. The Mortgagor will pay all taxes, general and special
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assessments, insurance premiums, permit fees, inspection fees, license fees,
water and sewer charges, franchise fees and equipment rents and any other
charges or fees against it or the Premises (and the Mortgagor, upon request of
the Administrative Agent, will submit to the Administrative Agent receipts
evidencing said payments).
2.3 Reimbursement. The Mortgagor agrees that if it shall fail to pay on
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or before the date that the same become delinquent any tax, assessment or charge
levied or assessed against the Premises or any utility charge, whether public or
private, or any insurance premium or if it shall fail to procure the insurance
coverage and the delivery of the insurance certificates required hereunder, or
if it shall fail to pay any other charge or fee described in Sections 2.2, 2.3
or 2.6 hereof, then the Administrative Agent, at its option, may pay or procure
the same and will give the Mortgagor prompt notice of any such expenditures.
The Mortgagor will reimburse the Administrative Agent upon demand for any sums
of money paid by the Administrative Agent pursuant to this Section, together
with interest on each such payment at the default rate of interest provided in
Section 2.8 of the Credit Agreement and Section 2.6 of the Term Loan Agreement,
and all such sums and interest thereon shall be secured hereby.
2.4 Additional Documents. The Mortgagor agrees to execute and deliver to
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the Administrative Agent, concurrently with the execution of this Mortgage and
upon the request of the Administrative Agent from time to time hereafter, all
financing statements and other documents reasonably required to perfect and
maintain the security interest created hereby. The Mortgagor hereby irrevocably
(as long as any Loans remain outstanding or the Commitment has not been
terminated) makes, constitutes and appoints the Administrative Agent as the true
and
lawful attorney of the Mortgagor to sign the name of the Mortgagor on any
financing statement, continuation of financing statement or similar document
required to perfect or continue such security interests.
2.5 Sale or Encumbrance. Except as permitted by the Credit Agreement and
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the Term Loan Agreement, the Mortgagor will not sell, encumber or otherwise
dispose of any of the Tangible Personalty except to incorporate such into the
Improvements or replace such with goods of quality and value at least equal to
that replaced. In the event the Mortgagor sells or otherwise disposes of any of
the Tangible Personalty in contravention of the foregoing sentence, the
Administrative Agent's security interest in the proceeds of the Tangible
Personalty shall continue pursuant to this Mortgage.
2.6 Fees and Expenses. The Mortgagor will promptly pay upon demand any
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and all reasonable costs and expenses of the Administrative Agent, (a) as
required under Section 10.3 of each of the Credit Agreement and the Term Loan
Agreement and (b) as necessary to protect the Premises, the Rents and Profits or
the Intangible Personalty or to exercise any rights or remedies under this
Mortgage or with respect to the Premises, Rents and Profits or the Intangible
Personalty. All of the foregoing costs and expenses shall be secured hereby.
2.7 Leases and Other Agreements. The Mortgagor shall faithfully keep and
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perform, or cause to be kept and performed, in all material respects, all of the
covenants, conditions, and agreements contained in each lease (including any
equipment lease), rental agreement, management contract, franchise agreement,
construction contract, technical services agreement or other material contract,
license or permit now or hereafter affecting the Premises, now or hereafter
existing, on the part of the Mortgagor to be kept and performed (including
performance of all covenants to be performed under any and all leases of the
Premises or any part thereof) and shall at all times use commercially reasonable
efforts to enforce, with respect to each other party to said agreements, all
obligations, covenants and agreements by such other party to be performed
thereunder.
2.8 Maintenance of Premises. The Mortgagor will abstain from and will not
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permit the commission of waste in or about the Premises and will maintain, or
cause to be maintained (subject to reconstruction periods after the occurrence
of an act of God), the Premises in good condition and repair, reasonable wear
and tear excepted.
2.9 Insurance. The Mortgagor shall maintain insurance for the Premises as
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set forth in Section 5.3 of each of the Credit Agreement and the Term Loan
Agreement. In addition to the requirements set forth in Section 5.3 of each of
the Credit Agreement and the Term Loan Agreement, if any part of the
Improvements is located in an area having "special flood hazards" as defined in
the Federal Flood Disaster Protection Act of 1973, a flood insurance policy as
may be required by law naming the Administrative Agent as mortgagee must be
submitted to the Administrative Agent. The policy must be in such amount,
covering such risks and liabilities and with such deductibles or self-insurance
retentions as are in accordance with normal industry practice.
2.10 Eminent Domain. The Mortgagor assigns to the Administrative Agent
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any proceeds or awards which may become due by reason of any condemnation or
other taking for public use of the whole or any part of the Premises or any
rights appurtenant thereto to which the Mortgagor is entitled. The Mortgagor
agrees to execute such further assignments and agreements as may be reasonably
required by the Administrative Agent to assure the effectiveness of this
Section. In the event any Governmental Authority shall require or commence any
proceedings for the demolition of any buildings or structures comprising a part
of the Premises, or shall commence any proceedings to condemn or otherwise take
pursuant to the power of eminent domain a material portion of the Premises, the
Mortgagor shall promptly notify the Administrative Agent of such requirement or
commencement of proceedings (for demolition, condemnation or other taking).
2.11 Releases and Waivers. The Mortgagor agrees that no release by the
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Administrative Agent of any portion of the Premises, the Rents and Profits or
the Intangible Personalty, no subordination of any Lien, no forbearance on the
part of the Lenders or the Administrative Agent to collect on the Loans, or any
part thereof, no waiver of any right granted or remedy available to the
Administrative Agent and no action taken or not taken by the Administrative
Agent shall in any way have the effect of releasing the Mortgagor from full
responsibility to the Lenders and the Administrative Agent for the complete
discharge of each and every of the Mortgagor's obligations hereunder.
2.12 Assignment of Leases and Mortgagor Collection of Rents and
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Profits.
(a) Mortgagor hereby authorizes and directs any lessees or tenants of
the Premises that, upon written notice from Administrative Agent, all Rents and
Profits and all payments required under the Leases, or in any way respecting
same, shall be made directly to Administrative Agent as they become due.
Mortgagor hereby relieves said lessees and tenants from any liability to
Mortgagor by reason of said payments being made to Administrative Agent.
Nevertheless, until Administrative Agent notifies in writing said lessees and
tenants to make such payments to Administrative Agent, Mortgagor shall be
entitled to collect all such Rents and Profits and/or payments. Administrative
Agent is hereby authorized to give such notification only in the event of any
breach or default by Borrowers hereunder or under the Credit Documents.
(b) Any and all Rents and Profits collected by Administrative Agent may
be applied in the respective manners set forth in Section 2.13 of the Credit
Agreement and Section 2.11 of the Term Loan Agreement. Receipt by
Administrative Agent of such Rents and Profits shall not constitute a waiver of
any right that Administrative Agent may enjoy under this Mortgage, the Credit
Agreement, the Term Loan Agreement or under the laws of the State of South
Carolina, nor shall the receipt and application thereof cure any default
hereunder nor affect any foreclosure proceeding or any sale authorized by this
Mortgage, the Credit Agreement, the Term Loan Agreement and the laws of the
State of South Carolina.
(c) Administrative Agent does not consent to, does not assume and shall
not be liable for any obligation of the lessor under any of the Leases and all
such obligations shall continue to rest upon Mortgagor as though this assignment
had not been made. Administrative Agent shall not be liable for the failure or
inability to collect any Rents and Profits.
ARTICLEIII
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Event of Default
An event of default shall exist under the terms of this Mortgage upon the
existence of an Event of Default under the terms of the Credit Agreement or the
Term Loan Agreement (which has not been cured or waived in accordance with the
provisions thereof) or the failure of Mortgagor to perform any covenant,
agreement or obligation under this Mortgage ("Event of Default").
ARTICLE IV
Foreclosure
4.1 Acceleration of Loan; Foreclosure. Upon the occurrence and during the
---------------------------------
continuance of an Event of Default, the entire balance of the Loans and any
other obligations due under the Credit Documents, including all accrued
interest, shall, at the option of the Administrative Agent, become immediately
due and payable. Upon failure to pay the Loans or reimburse any other amounts
due under the Credit Documents in full at any stated or accelerated maturity,
the Administrative Agent may foreclose the lien of this Mortgage by judicial
proceeding in a manner permitted by applicable law. The Mortgagor hereby waives
any statutory right of redemption in connection with such foreclosure
proceeding.
4.2 Proceeds of Sale. Following a foreclosure sale, the proceeds of such
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sale shall, subject to applicable law, be applied in accordance with the
respective provisions set forth in Section 2.13 of the Credit Agreement and
Section 2.11 of the Term Loan Agreement.
ARTICLEV
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Additional Rights and Remedies of the Administrative Agent
5.1 Rights Upon Maturity or an Event of Default. Upon the occurrence and
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during the continuance of an Event of Default, the Administrative Agent,
immediately and without additional notice and without liability therefor to the
Mortgagor and to the extent permitted by law, except for its own gross
negligence or willful misconduct, may do or cause to be done any or all of the
following: (a) take physical possession of the Premises; (b) exercise its right
to
collect the Rents and Profits; (c) enter into contracts for the completion,
repair and maintenance of the Improvements thereon; (d) expend Loan funds and
any rents, income and profits derived from the Premises for payment of any
taxes, insurance premiums, assessments and charges for completion, repair and
maintenance of the Improvements, preservation of the lien of this Mortgage and
satisfaction and fulfillment of any liabilities or obligations of the Mortgagor
arising out of or in any way connected with the construction of Improvements on
the Premises whether or not such liabilities and obligations in any way affect,
or may affect, the lien of this Mortgage; (e) enter into leases demising the
Premises or any part thereof; (f) take such steps to protect and enforce the
specific performance of any covenant, condition or agreement in the Notes, this
Mortgage, the Credit Agreement, the Term Loan Agreement or to aid the execution
of any power herein granted; (g) generally, supervise, manage, and contract with
reference to the Premises as if the Administrative Agent were equitable owner of
the Premises; (h) seek the appointment of a receiver as provided in Section 5.2
below; (i) exercise any or all of the remedies available to a secured party
under the South Carolina Uniform Commercial Code, including, but not limited to,
selling, leasing or otherwise disposing of any fixtures and personal property
which is encumbered hereby at public sale, with or without having such fixtures
or personal property at the place or sale, and upon such terms and in such
manner as Administrative Agent may determine; and (j) exercise any or all of the
remedies of a secured party under the South Carolina Uniform Commercial Code
with respect to the Tangible Personalty and Intangible Personalty. The
Mortgagor also agrees that any of the foregoing rights and remedies of the
Administrative Agent may be exercised at any time independently of the exercise
of any other such rights and remedies, and the Administrative Agent may continue
to exercise any or all such rights and remedies until the Event(s) of Default
are cured or waived with the consent of the Required Lenders or the Lenders (as
required by the Credit Agreement and the Term Loan Agreement) or until
foreclosure and the conveyance of the Premises or until the obligations secured
hereby are satisfied or paid in full and the Commitment is terminated.
5.2 Appointment of Receiver. If upon the maturity of any of the Loans or
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any other amounts or obligations under the Credit Documents, the same remain
unpaid, or upon the occurrence and continuance of an Event of Default, the
Administrative Agent as a matter of right shall be entitled to the appointment
of a receiver or receivers for all or any part of the Premises, to take
possession of and to operate the Premises, and to collect the rents, issues,
profits, and income thereof, all expenses of which shall be added to the
indebtedness secured hereby, whether such receivership be incident to a proposed
sale (or sales) of such property or otherwise, and without regard to the value
of the Premises or the solvency of any Person or Persons liable for the payment
of the indebtedness secured hereby, and the Mortgagor does hereby irrevocably
consent to the appointment of such receiver or receivers, waives any and all
defenses to such appointment, and agrees not to oppose any application therefor
by Administrative Agent. Nothing herein is to be construed to deprive the
Administrative Agent of any other right, remedy or privilege it may have under
the law to have a receiver appointed. Any money advanced by the Administrative
Agent in connection with any such receivership shall be a demand obligation
(which obligation the Mortgagor hereby promises to pay) owing by the Mortgagor
to the Administrative Agent pursuant to this Mortgage.
5.3 Waivers. No waiver of any Event of Default shall at any time
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thereafter be held to be a waiver of any rights of the Administrative Agent
stated anywhere in the Notes, this Mortgage, the Credit Agreement, the Term Loan
Agreement or any of the other Credit Documents, nor shall any waiver of a prior
Event of Default operate to waive any subsequent Event(s) of Default. All
remedies provided in this Mortgage, in the Notes, in the Credit Agreement, in
the Term Loan Agreement and in the other Credit Documents are cumulative and
may, at the election of the Administrative Agent, be exercised alternatively,
successively, or in any manner and are in addition to any other rights provided
by law.
5.4 Delivery of Possession After Foreclosure. In the event there is a
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foreclosure sale hereunder and at the time of such sale, the Mortgagor or the
Mortgagor's heirs, devisees, representatives, successors or assigns are
occupying or using the Premises, or any part thereof, each and all immediately
shall become the tenant of the purchaser at such sale, which tenancy shall be a
tenancy from day to day, terminable at the will of either landlord or tenant, at
a reasonable rental per day based upon the value of the property occupied, such
rental to be due daily to the purchaser; and to the extent permitted by
applicable law, the purchaser at such sale, notwithstanding any language herein
apparently to the contrary, shall have the sole option to demand possession
immediately following the sale or to permit the occupants to remain as tenants
at will. In the event the tenant fails to surrender possession of said property
upon demand, the purchaser shall be entitled to institute and maintain a summary
action for possession of the property (such as an action for forcible detainer)
in any court having jurisdiction.
ARTICLE VI
General Conditions
6.1 Terms. The singular used herein shall be deemed to include the
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plural; the masculine deemed to include the feminine and neuter; and the named
parties deemed to include their heirs, successors and assigns. The term
"Lender" shall include any of the Persons identified as a "Lender" on the
signature pages to the Credit Agreement and the Term Loan Agreement, and any
Person which may become a Lender by way of assignment in accordance with the
terms of the Credit Agreement and the Term Loan Agreement, together with their
successors and permitted assigns.
6.2 Notices. All notices and other communications required to be given
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hereunder shall have been duly given and shall be effective (i) when delivered,
(ii) when transmitted via telecopy (or other facsimile device) to the number set
out below, (iii) the Business Day following the day on which the same has been
delivered prepaid to a reputable national overnight air courier service, or (iv)
the third Business Day following the day on which the same is sent by certified
or registered mail, postage prepaid, in each case to the respective parties at
the address or telecopy numbers set forth below, or at such other address as
such party may specify by written notice to the other parties hereto.
to the Mortgagor:
Policy Management Systems Corporation
One PMSC Center
Blythewood, South Carolina 29016
Attention: General Counsel
Telephone: (803) 333-4000
Telecopy: (803) 333-5560
to the Administrative Agent:
Bank of America, N.A.
100 N. Tryon Street
Business Services Group
NC1-007-17-15
Charlotte, North Carolina 28255
Attn: Michael J. McKenney
Telephone: (704) 388-5920
Telecopy: (704) 388-0960
6.3 Severability. If any provision of this Mortgage is determined to be
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illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
6.4 Headings. The captions and headings herein are inserted only as a
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matter of convenience and for reference and in no way define, limit, or describe
the scope of this Mortgage nor the intent of any provision hereof.
6.5 Conflicting Terms. In the event the terms and conditions of this
------------------
Mortgage conflict with the terms and conditions of the Credit Agreement or the
Term Loan Agreement, the terms and conditions of the Credit Agreement or the
Term Loan Agreement, as applicable, shall control and supersede the provisions
of this Mortgage with respect to such conflicts.
6.6 Governing Law. This Mortgage shall be governed by and construed in
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accordance with the internal law of the state where the Premises is located.
6.7 Special South Carolina Provisions.
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(a) In the event of any inconsistencies between the terms and
conditions of the other provisions of this Mortgage and this Section 6.7, the
terms of this Section 6.7 shall control and be binding.
(b) Mortgagor agrees to the full extent permitted by law that in
case of an Event of Default on its part hereunder, neither Mortgagor nor anyone
claiming through or under it shall or will set up, claim or seek to take
advantage of any appraisal, valuation, stay, 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 Premises or the final and absolute
putting into possession thereof, immediately after such sale, of the purchaser's
thereat, and Mortgagor, for itself and all who may at any time claim through or
under it, hereby waives, to the full extent that it may lawfully so do the
benefit of such laws, and any and all right to have the assets comprising the
Premises marshalled upon any foreclosure of the lien hereof or appraised for the
purpose of reducing any deficiency judgment obtained by Administrative Agent
against Mortgagor and agrees that Administrative Agent or any court having
jurisdiction to foreclose such lien may sell the Premises in part or as an
entirety. Mortgagor further waives, to the full extent permitted by law, the
right to petition for the appointment of appraisers following foreclosure for
the purpose of seeking to reduce a deficiency judgment or for any reason.
(c) The maximum of all indebtedness outstanding at any one time
secured hereby shall not exceed $250 million plus interest thereon, all charges
and expenses of collection incurred by Administrative Agent including court
costs and reasonable attorneys' fees. Interest hereunder may be deferred,
accrued or capitalized.
(d) This Mortgage also secures, in accordance with Section
29-3-50, Code of Laws of South Carolina 1976, as amended, all future advances
and re-advances that may subsequently be made to Mortgagor by Administrative
Agent pursuant to this Mortgage and the other Credit Documents.
PROVIDED ALWAYS, and it is the true intent and meaning of the Mortgagor and
the Administrative Agent, that if the Mortgagor, the Guarantors, or their
successors and assigns, shall pay or cause to be paid and discharged unto the
Administrative Agent, its successors and assigns, the obligations secured hereby
according to the terms of this Mortgage, and the Credit Documents, then this
Mortgage shall cease, determine and be void, otherwise it shall remain in full
force and virtue. And it is agreed, by and between the Mortgagor and the
Administrative Agent, that the Mortgagor is to hold and enjoy the said premises
until an Event of Default be made in the terms of this Mortgage.
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The laws of South Carolina provide that in any real estate foreclosure
proceeding a defendant against whom a personal judgment is taken or asked may
within thirty days after the sale of the Premises apply to the court for an
order of appraisal. The statutory appraisal value as approved by the court
could be substituted for the high bid and may decrease the amount of any
deficiency owing in connection with the transaction. THE UNDERSIGNED MORTGAGOR
HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE
HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS
OF ANY APPRAISED VALUE OF THE PREMISES.
IN WITNESS WHEREOF, the Mortgagor has executed this Mortgage under seal as
of the above written date.
POLICY MANAGEMENT SYSTEMS CORPORATION,
WITNESS: a South Carolina corporation
/S/ Lynn W. Dillard By: /S/ Stephen G. Morrison
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Title: Executive Secretary and General Counsel
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/S/ Katherine E. Daniels
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STATE OF SOUTH CAROLINA )
ACKNOWLEDGMENT
COUNTY OF RICHLAND )
I, Cynthia R. Dowie, Notary Public for the State of South Carolina, do
hereby certify that the above-named Policy Management Systems Corporation, by
its duly authorized officer, personally appeared before me this day and
acknowledged the due execution of the foregoing instruments.
Witness my hand an official seal this the 28th day of April 2000.
/S/ Cynthia R. Dowie
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Notary Public for South Carolina
My Commission Expires: March 2, 2002
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CHAR1\532061_ 2
Administrative Agent hereby joins in the execution of this Mortgage and Security
Agreement with the intention that it shall serve as a financing statement
pursuant to Section 36-9-402 of the Code of Laws of South Carolina 1976.
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WITNESS: ADMINISTRATIVE AGENT:
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BANK OF AMERICA, N.A.
By:/S/ Christopher M. Chamness By: /S/ Michael J. McKenney
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Title:__________________________
WITNESS:
By: /S/ Naomi Simms
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EXHIBIT A
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All that certain piece, parcel, or lot of land, with improvements thereon,
situate, lying and being in the County of Richland, State of South Carolina,
near the City of Columbia, located at the intersection of U.S. Interstate 77 and
U.S. Highway 21, as shown on that certain ALTA/ACSM Land Title Survey prepared
for Policy Management Systems Corporation by Leon Campbell & Associates, dated
April 26, 2000, last revised May 02, 2000, and recorded in the office of the
Richland County ROD in Book 00406, Pages 2764 and 2765. Reference to said plat
is craved for a fuller description, with all measurements being a little more or
less.
~Doc# 5162924.01 ~