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Exhibit 10(h)
LOAN AGREEMENT
dated as of February 24, 1997
between
P.H. GLATFELTER COMPANY
as Borrower
and
GWS VALUCH, INC.
as Lender
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TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS............................. 1
SECTION 1.1. Definitions.................................................. 1
SECTION 1.2. Interpretation............................................... 12
ARTICLE 2
THE BORROWING............................ 14
SECTION 2.1. Commitment to Lend........................................... 14
SECTION 2.2. Method of Borrowing.......................................... 14
SECTION 2.3. Note......................................................... 14
SECTION 2.4. Maturity of Loan............................................. 14
SECTION 2.5. Interest Rate................................................ 14
SECTION 2.6. Optional Prepayments......................................... 15
SECTION 2.7. Mandatory Prepayments........................................ 16
SECTION 2.8. Changes in Tax Laws.......................................... 16
SECTION 2.9. General Provisions as to Payments............................ 17
SECTION 2.10. Computation of Interest..................................... 17
SECTION 2.11. Interest on Reimbursable and Other Amounts.................. 17
ARTICLE 3
CONDITIONS............................. 17
SECTION 3.1. Conditions to Borrowing...................................... 17
ARTICLE 4
REPRESENTATIONS AND WARRANTIES................... 18
SECTION 4.1. Organization and Qualification............................... 18
SECTION 4.2. Authorization; No Contravention; Binding Effect.............. 19
SECTION 4.3. Litigation................................................... 19
SECTION 4.4. Regulatory Restrictions on Borrowing......................... 19
SECTION 4.5. [RESERVED]................................................... 19
SECTION 4.6. Representations in Collateral Documents True
and Correct................................................ 20
SECTION 4.7. Other Representations and Warranties as to
Mortgaged Property......................................... 20
SECTION 4.8. Representations and Warranties of Lender..................... 21
ARTICLE 5
COVENANTS.............................. 22
SECTION 5.1. Mortgage Delivery............................................ 22
SECTION 5.2. Information.................................................. 23
SECTION 5.3. Transfers.................................................... 24
SECTION 5.4. Liens........................................................ 25
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SECTION 5.5. Mortgage Recording: Further Assurances....................... 25
SECTION 5.6. Title Insurance Upon Material Event of
Default or Downgrade....................................... 26
SECTION 5.7. Environmental Covenant....................................... 27
SECTION 5.8. Impositions.................................................. 28
SECTION 5.9. Legal and Insurance Requirements............................. 28
SECTION 5.10. Permitted Contests.......................................... 28
SECTION 5.11. Insurance................................................... 29
SECTION 5.12. Additional Covenants........................................ 29
ARTICLE 6
DEFAULTS.............................. 33
SECTION 6.1. Events of Default............................................ 33
SECTION 6.2. Remedies..................................................... 35
ARTICLE 7
MISCELLANEOUS............................ 36
SECTION 7.1. Notices...................................................... 36
SECTION 7.2. No Waivers................................................... 36
SECTION 7.3. Expenses..................................................... 37
SECTION 7.4. Indemnification.............................................. 37
SECTION 7.5. Amendments and Waivers....................................... 40
SECTION 7.6. Successors and Assigns....................................... 40
SECTION 7.7. Substitution and Release of Collateral....................... 40
SECTION 7.8. Transfers and Release of Certain Minor Parcels............... 43
SECTION 7.9. Estoppel Certificates........................................ 45
SECTION 7.10. WAIVER OF JURY TRIAL........................................ 45
SECTION 7.11. SUBMISSION TO JURISDICTION.................................. 45
SECTION 7.12. GOVERNING LAW............................................... 45
SECTION 7.13. Counterparts Integration.................................... 45
SECTION 7.14. [RESERVED].................................................. 46
SECTION 7.15. Lost Notes.................................................. 46
SECTION 7.16. Termination................................................. 46
EXHIBIT A - Form of Note
EXHIBIT B - Form of Mortgage
EXHIBIT C - Lender's Wire Transfer Instructions
SCHEDULE 1 - Non-Recording States
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LOAN AGREEMENT (this "Agreement") dated as of February 24,
1997 by and between P.H. Glatfelter Company (the "Borrower") and GWS Valuch,
Inc. (the "Lender").
W I T N E S S E T H:
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. Definitions. As used in this Agreement, unless
otherwise specified, the following terms have the following meanings:
"actual knowledge" means the then actual knowledge of any
officer of a Borrower or Lender (as applicable) having oversight of the
transactions contemplated by the Loan Documents and, as to any matter relating
to an Individual Property, any other officer of a Borrower or Lender (as
applicable) having oversight as to such Individual Property.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
For purposes of this definition, the term "control" (including the correlative
meanings of the terms "controlling, "controlled by" and "under common control
with"), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
policies of such Person, whether through the ownership of voting securities or
by contract or otherwise, provided (but without limiting the foregoing) that no
pledge of voting securities of any Person without the current right to exercise
voting rights with respect thereto shall by itself be deemed to constitute
control over such Person. For purposes of this Agreement, Borrower and Lender
shall not be considered Affiliates of each other.
"Agreements" means as to any Individual Property, all leases
and subleases, restrictive covenants, deed restrictions and easements (including
any applicable Permitted Encumbrances and Permitted Easements), all insurance
policies (including all unearned premiums and dividends thereunder), all
guarantees and warranties, all supply and service contracts for water, sanitary
and storm sewer, drainage, electricity, steam, gas, telephone or other utilities
and all other documents, agreements and instruments, in all of such cases now or
hereafter relating to any Individual Property and all other contract rights, now
or hereafter relating to the use or operation of any Individual Property.
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"Applicable Laws" means as to any Individual Property all
applicable laws (including Environmental Laws and subdivision laws), rules,
regulations, statutes, treaties, codes, ordinances, and Permits, of any
Governmental Authority, and applicable judgments, decrees, injunctions, writs,
orders or other action of any court, binding arbitrator or other administrative,
judicial or quasi-judicial tribunal or agency of competent jurisdiction
(including those pertaining to health or safety and those pertaining to the
construction, use or occupancy of any Individual Property), whether now or
hereafter in effect.
"Award" means the entire award, compensation or other payment,
if any, on account of any Condemnation, including all amounts received or
receivable with respect to any voluntary or involuntary sale, conveyance or
other transfer in lieu or anticipation of a Condemnation or in connection with
any agreement with any Governmental Authority which has been made in settlement
of any proceeding relating to a Condemnation.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
amended.
"Borrower" means P.H. Glatfelter, a Pennsylvania corporation,
and any other Owner to the extent such Owner shall become a party to this
Agreement and the Note (or any replacement thereof) pursuant to the provisions
of Section 4.7 hereof provided that nothing herein shall constitute a
representation or warranty of any Owner unless and until such Owner becomes
subject to this Agreement.
"Borrowing" means the borrowing of the Loan made to Borrower
pursuant to Article 2.
"Business Day" means any day other than a Saturday, Sunday or
other day on which banks are authorized to be closed in New York, New York.
"Casualty" means any material damage to or the destruction of
all or a material portion of any Individual Property by any casualty or cause,
other than any intentional demolition of any Improvements or harvesting of
timber that, pursuant to the terms of the Loan Documents, Borrower is permitted
to perform in connection with the making of any alterations to such Improvements
permitted under the Loan Documents.
"Claims" means liabilities, obligations, damages, losses,
demands, penalties, fines, claims, actions, suits, judgments, settlements,
costs, expenses and disbursements (including, without limitation, reasonable
legal fees and expenses and costs of investigation by engineers, environmental
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consultants and similar technical personnel) of any kind and nature whatsoever
(but limited in the case of damages, losses and claims resulting from
diminutions in Fair Market Value to actual pecuniary losses resulting from
diminutions in Fair Market Value).
"Closing Date" means the date on which the Loan is made
pursuant to Section 2.1.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor statute, and the regulations promulgated thereunder, as in effect
from time to time.
"Collateral" means collateral subject to the Collateral
Documents.
"Collateral Documents" means, the Mortgage and any other
pledges, security agreements, financing statements, mortgages, deeds of trust,
guaranties or similar documents delivered pursuant to any Loan Document.
"Condemnation" means any condemnation or other taking or
temporary (subject to the next sentence) or permanent requisition of any
Individual Property or material part thereof, any material interest therein or
material right appurtenant thereto, as the result of the exercise by any
Governmental Authority of any right of condemnation or eminent domain. The term
"Condemnation" shall not include a Temporary Condemnation. A voluntary or
involuntary sale, conveyance, assignment, lease or other transfer to a
Governmental Authority in lieu or anticipation of Condemnation shall be deemed
to be a Condemnation.
"Default Rate" means, with respect to any amount payable by
Borrower hereunder which is not paid when due, a rate per annum equal to the
lesser of (i) the highest interest rate permitted by applicable law and (ii) the
Interest Rate plus 2% per annum.
"Downgrade Event" means (A) the announcement by S&P and
Moody's of a reduction in the rating of the unsecured long-term debt securities
of Borrower to less than BB- and Ba3, respectively; or if either Rating Agency
ceases to perform rating services, the relevant announcement by the other Rating
Agency; or, if both Rating Agencies cease to perform such services, the
announcement by another nationally recognized credit rating service selected by
Lender and reasonably acceptable to Borrower of the comparable reduction in the
rating of the unsecured long-term debt securities of Borrower; or (B) in the
event Borrower has no unsecured, long-term debt securities outstanding, the
announcement by S&P of a reduction in the implied rating of
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unsecured long-term debt securities of Borrower, or if S&P ceases to perform
such rating services, the announcement by another nationally recognized credit
rating service selected by Lender and reasonably acceptable to Borrower of the
comparable reduction in the implied rating of the unsecured long-term debt
securities of Borrower.
"Eligible Indebtedness" means indebtedness that will (i) have
an interest rate greater than each of (a) the yield as of the date of prepayment
of the United States Treasury Security whose maturity is closest to that of such
Eligible Indebtedness plus 50 basis points and (b) 91% of the initial yield of
the Note; (ii) have a fixed principal amount which, is not less than the
principal amount of the Note or Eligible Indebtedness that is being prepaid;
(iii) have the same seniority as the Note or then existing Eligible
Indebtedness, as applicable; (iv) have restrictive covenants and other terms and
conditions no less favorable to the Lender than the terms of, at Borrower's
Option, either this Agreement or of the then most recently issued rated senior
indebtedness of Borrower; (v) be secured by real estate assets of Borrower or
its Affiliate, that, but for requirements of Section 5.1, would qualify as
Mortgaged Property and which assets together with all other Mortgaged Property
will have a Fair Market Value as of the date of issuance of such Eligible
Indebtedness which equals or exceeds the Required Value; and (vi) qualify in its
entirety as an interest in a mortgage on real property for purposes of Section
856(c)(6)(B) of the Code.
"Environmental Laws" means any and all applicable federal,
state and local statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, injunctions, permits and other governmental restrictions,
whether now or hereafter in effect, relating to (i) the environment, (ii) the
effect of Hazardous Substances on human health or natural resources, (iii)
emissions, discharges or releases of Hazardous Substances into the environment
including, without limitation, ambient air, surface water, ground water, or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Substances or the clean-up
or other remediation thereof.
"Fair Market Value" means, with respect to the Mortgaged
Property or any Individual Property, as the context shall require, the estimated
value, as reasonably determined and represented by Borrower, that would be
expected to be obtained in an arm's-length transaction for cash between informed
and willing parties, each having reasonable knowledge of all relevant facts,
neither of whom is under any compulsion to buy or to sell, for the purchase or
sale of such Mortgaged Property or Individual Property, as the case may be,
based on the assumption that the
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Mortgaged Property or such Individual Property, as applicable, is not encumbered
by the Mortgage.
"Governmental Action" means all permits, authorizations,
registrations, approvals, waivers, exceptions, variances, orders, judgments,
decrees, licenses, exemptions, and declarations of or with, or required by, any
Governmental Authority, or required by any Applicable Law in connection with the
use, occupancy, zoning and operation of the Mortgaged Properties, and shall
include, without limitation, all environmental and operating permits and
licenses.
"Governmental Authority" means any federal, state, county,
municipal or other governmental or regulatory authority, agency, board,
commission, instrumentality or court.
"Governmental Obligations' means obligations issued or
guaranteed by, and constituting full faith and credit obligations of, the United
States of America.
"Hazardous Substances" means any pollutant, contaminant or
chemical, any toxic, explosive, corrosive, flammable, radioactive, caustic or
otherwise hazardous substance, waste or material or any substance, waste or
material, having any constituent elements displaying any of the foregoing
characteristics, including, without limitation, petroleum, its derivatives,
by-products or other hydrocarbons, asbestos or asbestos-containing material.
"Impositions" means all Taxes, in each case whether general or
special, ordinary or extraordinary, foreseen or unforeseen, of every character
(including all interest and penalties thereon), which at any time may be
assessed, levied, confirmed or imposed on or in respect of, or be a Lien upon,
(i) the Mortgaged Property or any interest therein, (ii) any occupancy, use or
possession of, or activity conducted on, the Mortgaged Property, (iii) the rents
from the Mortgaged Property or the use or occupancy thereof, or (iv) the Secured
Obligations or the Loan Documents. Anything in this Agreement to the contrary
notwithstanding, Impositions shall not include any Taxes that are based on net
or gross income (including any capital gain) or any excess profits, value added,
franchise, estate, inheritance, capital, doing business, transfer or similar
Taxes, in each case, of Lender, unless and to the extent such Taxes are in lieu
of or a substitute for ad valorem real or personal property taxes, or any
assessments upon or with respect to the Mortgaged Property which, if such other
Taxes were in effect would be payable by Borrower hereunder; provided, however,
Borrower shall pay and discharge any Taxes which are or are in the nature of
sales or use or license Taxes.
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"Improvements" means all buildings, structures, fixtures,
facilities and other improvements of every kind and description now or hereafter
located on the Land described in the Mortgage but excluding any standing timber.
"Individual Property" shall have the meaning set forth in the
Mortgage.
"Insurance Proceeds" means, at any time, all proceeds (except
proceeds of business interruption insurance) or payments to which Borrower may
be or become entitled by reason of any Casualty under any insurance policies or
coverages maintained by Borrower with respect to the Mortgaged Property. The
term "Insurance Proceeds" shall include all deductible, self retained and self
insured amounts, all of which shall be paid by Borrower in the same manner and
to the same Person as Insurance Proceeds are required to be paid under the
applicable Loan Documents.
"Insurance Requirements" means all provisions of the insurance
policies applicable to any Individual Property, all requirements of the issuer
of any of the Insurance Policies and all orders, rules, regulations and any
other requirements of the National Board of Fire Underwriters (or any other body
exercising similar functions) binding upon Borrowers or applicable to such
Individual Property, any adjoining vaults, sidewalks, parking areas or driveways
or any use or condition thereof.
"Interest Rate" shall have the meaning set forth in Section
2.5 hereof.
"Land" means the parcel or parcels of land referred to in the
Mortgage.
"Legal Requirements" means all provisions of Applicable Laws,
Permits and Agreements.
"Lender" means GWS Valuch, Inc., a Delaware corporation, and
its successors and assigns.
"Lien" means, with respect to any asset, any mortgage, deed of
trust, lien, pledge, charge, security interest or encumbrance of any kind,
including any thereof arising under any conditional sale agreement, capital
lease or other title retention agreement.
"Loan" means the loan made by Lender pursuant to Section 2.1,
the Borrower's obligations with respect to which are evidenced by the Note or if
substituted for the Note, Eligible Indebtedness.
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"Loan Documents" means this Agreement, the Note, and the
Collateral Documents.
"Loss" means any Casualty or Condemnation.
"Material Adverse Effect" means, with respect to the Mortgaged
Property, a material adverse effect on (i) the Fair Market Value of the
Mortgaged Property that results in, as reasonably determined by Borrower, the
then outstanding principal amount of the Loan exceeding 91% of the then
aggregate Fair Market Value of the Mortgaged Property, or (ii) Lender's Liens,
taken as a whole, on or in the Mortgaged Property or any of Lender's rights or
remedies under the Loan Documents.
"Material Casualty" means, with respect to the Mortgaged
Property, a Casualty with respect to which the estimated cost, as reasonably
determined by Borrower, of Restoration of any Improvements to the Mortgaged
Property is fifty percent (50%) or more of the estimated Fair Market Value of
the Mortgaged Property taken as a whole before the Casualty.
"Material Condemnation" means a Condemnation that affects or
would affect 50% or more of the Fair Market Value of the Mortgaged Property
taken as a whole prior to such Condemnation.
"Material Event of Default" means any Event of Default, other
than an Event of Default described in Section 6.1(c), (f) or (g) that does not
have a Material Adverse Effect.
"Moody's" means Moody's Investors Service, Inc., and its
successors.
"Mortgage" means, with respect to the Mortgaged Property, a
mortgage, deed of trust and fixture filing substantially in the form of Exhibit
B hereto; provided, however, that the parties hereto agree to revise and adopt
such mortgage to a form suitable for the state in which the Mortgaged Property
(or portion thereof) is located.
"Mortgage Delivery Date" means the date on which, pursuant to
Section 5.1(a), Lender shall receive from Borrower or the applicable Owner duly
executed counterparts of the Mortgage and any other Collateral Documents and,
Borrower otherwise complies with the provision of Section 5.1 hereof.
"Mortgaged Property" means, collectively, (i) those properties
which are to be designated by Borrower pursuant to Section 5.1(a) as properties
subject to the Mortgage and in which Borrower or the applicable Owner has a fee
simple interest, and which properties are to be more particularly described in
the
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Mortgage and (ii) any Substitute Property from and after the Release Date which
becomes subject to the lien of the Mortgage pursuant to Section 7.7(c).
"Net Award" means any Award or Insurance Proceeds, less any
out-of-pocket expenses (including, but not limited to, reasonable attorneys'
fees and expenses), that are reasonably incurred in collecting such award,
compensation, insurance proceeds or other payment (which, unless expressly
prohibited by this Agreement or any other Loan Document, may be paid or
reimbursed from such award, compensation, insurance proceeds or other payments).
The term "Net Award" shall include all deductible, self retained and self
insured amounts all of which shall be required to be paid by Borrower in the
same manner and to the same party as Insurance Proceeds are required to be paid.
"Non-Recording States" means the States listed on Schedule I
annexed hereto.
"Note" means the promissory note of Borrower in favor of
Lender, substantially in the form of Exhibit A hereto, evidencing the obligation
of Borrower to repay the Loan.
"Notice Recording" means the recording of the Mortgage in a
Non-Recording State as to only a portion of the principal balance of the Loan,
not to exceed the lesser of (A) $300,000 with respect to any Individual Property
or (B) the Fair Market Value of such Individual Property.
"Owners" means, collectively, the holders of the fee simple
interest in the Mortgaged Property as of the Mortgage Delivery Date.
"Permits" means, as to any Individual Property, all licenses,
authorizations, certificates, variances, concessions, grants, franchises,
registrations, consents, permits and other approvals now or hereafter pertaining
to the ownership, management, occupancy, use or operation of such Individual
Property, including certificates of occupancy.
"Permitted Disposition" means as to any Individual Property,
any (i) Transfer of such Individual Property pursuant to a Condemnation, (ii)
harvesting and using and harvesting and selling, or entering into contracts for
the harvesting and sale, of timber located on the Land, (iii) Transfer in the
ordinary course of business of used, surplus or worn out equipment or other
personal property which is not necessary to operate such Individual Property,
(iv) Permitted Easements, (v) occupancy agreements made in connection with the
conduct of Borrower's business at the Mortgaged Property, or (v) lease of all or
any portion of an Individual Property as long as such lease (A) is
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subordinate to the Mortgage, which subordination will, upon Borrower's request
at the time of execution of the lease, include a non-disturbance agreement,
reasonably satisfactory to the Borrower, by the Lender that provides that so
long as lessee performs all the terms, covenants and conditions of the lease and
agrees to attorn to Lender, lessee's right to possession under the lease will
not be disturbed; and (B) shall provide that in the event of any exercise of
foreclosure or power of sale or similar remedies by Lender under the Mortgage,
Lender may, at its option, take over all right, title and interest of the
applicable Owner, as lessor, under such lease and the lessee shall, at Lender's
option, if a subordination, attornment and non-disturbance agreement has not
been executed pursuant to (A) above, attorn to Lender pursuant to the then
executory provisions of such lease, provided that Lender shall not be (i) liable
for any previous act or omission of the applicable Owner under such lease, (ii)
subject to any credit, offset, counterclaim or defense, (iii) bound by any
modification of such lease made without Lender's consent or by any previous
prepayment of more than one month's rent, (iv) bound to complete any
construction with respect to the leased premises, and (v) required to pay any
funds to such lessee except for the return of any security deposit of the lessee
actually received by Lender (if Lender shall be required to return the same
pursuant to the lease).
"Permitted Easements" means, as to any Mortgaged Property,
easements, covenants and restrictions agreement, leases, licenses (including,
but not limited to hunting and recreational licenses or leases), rights of way
or similar encumbrances with respect to such Mortgaged Property that (i) do not
materially interfere with the then current use and operation of such Individual
Property as of the Mortgage Delivery Date and (ii) do not have a Material
Adverse Effect on the Mortgaged Property.
"Permitted Encumbrances" means the Loan Documents, any other
documents delivered at Closing or on the Mortgage Delivery Date pursuant to the
Loan Documents and all title exceptions (including recorded leasehold
interests), defects and other matters of record as of the Mortgage Delivery Date
relating to the Mortgaged Property and any Permitted Disposition that would
constitute an encumbrance.
"Permitted Liens" means, with respect to the Mortgaged
Property, (i) liens for Taxes either not yet due or being contested in
accordance with Section 5.10, (ii) materialmen's, mechanics', workers',
repairmen's or other like Liens for amounts either not yet due or being
contested in accordance with Section 5.10, (iii) Liens arising out of judgments
or awards with respect to which at the time an appeal or proceeding for review
is being prosecuted in good faith and if a Downgrade Event shall have
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occurred and be continuing, either which have been bonded or which adequate
reserves for the payment thereof (in the reasonable determination of Lender)
shall have been established on its books, so long as there is not any material
risk of loss of the priority of the Lien of the Loan Documents and the Mortgage
or any material danger of the sale, forfeiture or loss of any material part of
the Mortgaged Property or title thereto, (iv) Permitted Encumbrances, (v)
Permitted Easements, (vi) Liens permitted by any Loan Document, (vii) any right
or claim of any third party under a written contract with respect to subsurface
minerals located under the Land, (viii) any Lien or other matter to which Lender
has consented in writing, (ix) Liens that are the subject of a permitted contest
pursuant to Section 5.10, but only during the pendency of the permitted contest,
and (x) the respective rights and interests of Borrower and Lender in this
Agreement.
"Person" means an individual, a corporation, a limited
liability company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Quarterly Date" means the Business Day immediately preceding
each March 30, June 30, September 30 and December 30 occurring after the date
hereof and prior to the payment in full of the Secured Obligations.
"Rating Agencies" means S&P and Moody's.
"Recording Documents" means any Loan Document or Collateral
Document, including, any mortgage, UCC financing statement or fixture filing
(including with respect to timber) or assignment intended for recordation or in
recordable form, other than any Notice Recording.
"REIT" means a real estate investment trust under Section 856
of the Code.
"Required Value" means, with respect to the Mortgaged
Property, or if applicable, the real estate described in clause (v) of the
definition of Eligible Indebtedness, at least 110% of (A) the then outstanding
principal amount of the Loan, plus (B) any other monetary obligations secured by
or encumbering the Mortgaged Property.
"Restoration" means the restoration, repair, replacement or
rebuilding of an Improvement located on an Individual Property after a Casualty
or Condemnation (including any demolition in whole or in part of the
Improvements located on such Individual Property after such Casualty or
Condemnation to the extent permitted under the Loan Documents), and "Restore"
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means to restore, repair, replace or rebuild an Individual Property after a
Casualty or Condemnation (including, to demolish in whole or in part any of the
Improvements located on such Individual Property after such Casualty or
Condemnation to the extent permitted under the Loan Documents).
"S&P" means Standard & Poor's Ratings Services, a subsidiary
of McGraw-Hill Companies, Inc., and its successors.
"Secured Obligations" means: (i) (a) all principal of and
interest (including any interest which accrues after the commencement of any
case, proceeding or other action relating to the bankruptcy, insolvency or
reorganization of Borrower) on the Note; (b) all other amounts payable by
Borrower hereunder or under any other Loan Document; and (c) any renewals or
extensions of any of the foregoing; and (ii) the performance and observance of
each other term, covenant, agreement, obligation, requirement, condition and
provision to be performed or observed by Borrower hereunder or under any other
Loan Document.
"State" means the state or commonwealth in which any
applicable portion of the Mortgaged Property is located.
"Taxes" means all taxes (including, without limitation,
property (real or personal, tangible or intangible) sales, use, transfer,
transfer gains, capital, gross income and receipts taxes), assessments
(including all assessments for public improvements or benefits, whether or not
commenced or completed prior to the date hereof), water, sewer or other rents,
rates and charges, excises, levies, license fees, permit fees, inspection fees
and other authorization fees and other charges, general and special, ordinary or
extraordinary, foreseen and unforeseen imposed by any Governmental Authority in
the United States.
"Temporary Condemnation" means any condemnation or other
taking or requisition of any Mortgaged Property or any part thereof or any
interest therein or right appurtenant thereto, as the result of the exercise of
any right of condemnation or eminent domain, for a period of less than twelve
(12) consecutive months.
"Title Company" means Chicago Title Insurance Company or such
other title insurance company or companies acceptable to Lender.
"Transfer" means, when used as a noun, any sale, conveyance,
assignment, lease, mortgage, encumber, pledge or other transfer or disposition
and, when used as a verb, to sell, convey, assign, lease, mortgage, encumber,
pledge or otherwise transfer or dispose of, in each case (i) whether voluntary
or involuntary, and (ii) whether direct or indirect.
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"UCC" means the Uniform Commercial Code in effect in the State
in which any applicable portion of the Mortgaged Property is located.
"Unavoidable Delays" means delays due to acts of God, fire,
flood, drought, earthquake, explosion or other Casualty, inability to procure or
shortage of labor, equipment, facilities, sources of energy (including
electricity, steam, gas or gasoline), materials or supplies, failure of
transportation, strikes, lockouts, action of labor unions, Condemnation,
litigation relating to Legal Requirements, inability to obtain Permits or other
causes beyond the reasonable control of Borrower, provided that Borrower's lack
of funds shall not be deemed to be a cause beyond the control of Borrower and
that Borrower shall take all action reasonably necessary to mitigate or limit
the duration of such Unavoidable Delay.
"United States" means the United States of America, including
the States and the District of Columbia, but excluding its territories and
possessions.
SECTION 1.2. Interpretation. (a) In this Agreement,
unless otherwise specified or the context otherwise requires:
(i) singular words include the plural and plural words
include the singular;
(ii) words which include a number of constituent parts,
things or elements shall be construed as referring separately to each
constituent part, thing or element thereof, as well as to all of such
constituent parts, things or elements as a whole;
(iii) words importing any gender include any other gender;
(iv) references to any Person include such Person's
successors and assigns and in the case of an individual, the word
"successors" includes such Person's heirs, devisees, legatees,
executors, administrators and personal representatives;
(v) references to any statute or other law include all
applicable rules, regulations and orders adopted or made thereunder and
all statutes or other laws amending, consolidating or replacing the
statute or law referred to;
(vi) the words "consent", "approve", "agree" and
"request", and derivations thereof or words of similar import, mean the
prior written consent, approval, agreement or request of the Person in
question;
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(vii) the words "include" and "including", and words of
similar import, shall be deemed to be followed by the words "without
limitation";
(viii) the words "hereto", "herein", "hereof" and
"hereunder", and words of similar import, refer to this Agreement in
its entirety;
(ix) references to Articles, Sections, Schedules,
Exhibits, subsections, paragraphs and clauses are to the Articles,
Sections, Schedules, Exhibits, subsections, paragraphs and clauses of
this Agreement;
(x) the Schedules and Exhibits to this Agreement are
incorporated herein by reference;
(xi) the titles and headings of Articles, Sections,
Schedules, Exhibits, subsections, paragraphs and clauses are inserted
as a matter of convenience and shall not affect the construction of
this Agreement;
(xii) all obligations of Borrower hereunder shall be
satisfied by Borrower, at Borrower's sole cost and expense;
(xiii) all rights and powers granted to Lender hereunder
shall be deemed to be coupled with an interest and be irrevocable; and
(xiv) references to this Agreement or any other Loan
Document include all amendments, supplements, consolidations,
replacements, restatements, extensions, renewals and other
modifications thereof in whole or in part.
(b) Borrower acknowledges that it was represented by counsel
in connection with this Agreement, that it and its counsel reviewed and
participated in the preparation and negotiation of this Agreement and that any
rule of construction to the effect that ambiguities are to be resolved against
the drafting party or lender shall not be employed in the interpretation of this
Agreement.
ARTICLE 2
THE BORROWING
SECTION 2.1. Commitment to Lend. On the terms and conditions
set forth in this Agreement, Lender agrees to make a loan to Borrower on the
date hereof in the principal amount of TWO HUNDRED SEVENTY MILLION
($270,000,000.00) DOLLARS.
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SECTION 2.2. Method of Borrowing. (a) Borrower shall give
Lender notice (the "Notice of Borrowing") on or prior to the date of the
Borrowing hereunder, specifying the date (which shall be a Business Day) of the
Loan, unless waived by Lender.
(b) Not later than 12:00 Noon (New York City time) on the date
of the Borrowing, Lender shall make available the amount of the Loan in Federal
or other funds immediately available in New York City to Borrower.
SECTION 2.3. Note. The Loan to Borrower shall be evidenced by
a single Note of Borrower payable to the order of Lender in the amount of the
Loan.
SECTION 2.4. Maturity of Loan. The Loan shall be interest-only
through the Maturity Date. The Loan shall mature, and the principal amount
thereof shall be due and payable, on December 30, 2027 (the "Maturity Date").
Any overdue principal of the Loan shall bear interest, payable on demand, for
each day such principal is overdue until such principal of the Loan is paid, at
the Default Rate as in effect for such day; provided that the foregoing shall
not impair or limit in any way Lender's rights under Article 6 or under any
other Loan Document.
SECTION 2.5. Interest Rate. (a) Subject to the provisions of
paragraph (b) below, the Loan shall bear interest, for each day from the date
the Loan is made until it becomes due, at a rate per annum equal to 8.62% (the
"Interest Rate"). Such interest shall be payable quarterly in arrears on each
Quarterly Date.
(b) The Loan shall bear interest at the Default Rate for each
day that Borrower shall be in default under the requirements of Section 5.1
hereof until such default is cured.
(c) Any overdue interest on the Loan shall bear interest,
payable on demand, for each day such interest is overdue until it is paid at the
Default Rate as in effect for such day; provided that the foregoing shall not
impair or limit in any way Lender's rights under Article 6 or under any other
Loan Document.
(d) Notwithstanding anything herein to the contrary, the
interest payable by Borrower with respect to the Loan shall not exceed the
maximum amount permitted by Applicable Law and, to the extent that any payments
in excess of such permitted amount are received by Lender, such excess shall be
considered payments in respect of the principal amount of the Note.
SECTION 2.6. Optional Prepayments. (a) Borrower may prepay the
Loan in whole at any time, or in part from time to
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time, on any Quarterly Date occurring (each such date, a "Prepayment Date") not
earlier than thirty (30) days after Lender's receipt of the Prepayment Notice,
either (i) in cash in an amount equal to the principal amount to be prepaid, as
set forth in the Prepayment Notice, together with all accrued interest on the
Note or Eligible Indebtedness, if applicable, through the Prepayment Date and
all other amounts then due and payable under the Loan Documents, or (ii) "in
kind" in accordance with the procedures outlined in Section 2.6(c).
(b) If Borrower has elected to prepay all or a portion of the
Loan pursuant to Section 2.6(a), Borrower shall deliver to Lender an irrevocable
notice (the "Prepayment Notice") which shall include the following information:
(i) the Prepayment Date, (ii) the principal amount of the Loan to be prepaid,
and whether in cash or "in kind" (in accordance with Section 2.6(c)) and (iii)
if any of the Mortgaged Property is to be released, a description of such
Mortgaged Property to be released and a certificate of Borrower meeting the
requirements of Section 7.7(b). If any of the Mortgaged Property is to be
released, the Prepayment Notice shall be accompanied by requisite release
documents (in recordable form) to be executed and acknowledged by Lender.
(c) If Borrower has elected to prepay all or a portion of the
Loan Indebtedness "in kind", Borrower shall deliver to Lender on or prior to the
Prepayment Date (i) Eligible Indebtedness, (ii) all amounts then due and payable
under the Loan Documents (other than principal of the Note or then existing
Eligible Indebtedness, as applicable, and interest thereon), in cash, (iii) an
opinion of counsel reasonably satisfactory to Lender to the effect that such
prepayment "in kind" will not adversely affect the ability of Lender to qualify
as a REIT and will not subject Lender to registration under the Investment
Company Act of 1940, as amended, and (iv) an opinion of counsel reasonably
satisfactory to Lender that such prepayment "in kind" by Borrower will not be
deemed a fraudulent conveyance under Applicable Law or create a preference
within the meaning of the Bankruptcy Code.
(d) Upon receipt of the Prepayment Notice and the release
documents accompanying the Prepayment Notice and upon compliance by Borrower
with the other requirements set forth in this Section 2.6 (including the
appropriate prepayment in cash or "in kind" and all accrued interest on the Note
or Eligible Indebtedness through the Prepayment Date and all other amounts then
due and payable under the Loan Documents other than principal and interest
thereon not yet due and payable), Lender shall execute and acknowledge and
return to Borrower on the Prepayment Date such release documents and Borrower
shall cause
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such documents to be recorded in the appropriate records, if required.
(e) [RESERVED]
SECTION 2.7. Mandatory Prepayments. If at any time a
Condemnation or Casualty occurs and, following the Restoration of the applicable
Individual Property in question, the Fair Market Value of such Mortgaged
Property as Restored is an amount that results in there occurring a Material
Adverse Effect and Borrower shall elect not to substitute a Substitute Property
or such Individual Property pursuant to Section 7.7 in order to "cure" such
Material Adverse Effect, and there shall be remaining any portion of the Net
Award pertaining to such Condemnation, or any portion of the Insurance Proceeds
pertaining to such Casualty, Borrower, promptly following the request of Lender,
shall prepay a portion of the Loan equal to the amount of the remaining portion
of the Net Award or Insurance Proceeds, as applicable, in cash, on the next
occurring Quarterly Date, together with all accrued interest on the Note or
Eligible Indebtedness, as the case may be, as of such Quarterly Date. To the
extent such Condemnation or Casualty and Restoration does not result in a
Material Adverse Effect, Borrower shall be entitled to retain any remaining
portion of the Net Award or Insurance Proceeds, as applicable.
SECTION 2.8. Changes in Tax Laws. If, after the date hereof,
there shall be enacted any Applicable Law deducting from the value of the
Mortgaged Property for the purpose of taxation the Lien of any Collateral
Document or changing in any way the Applicable Law for the taxation of
mortgages, deeds of trust or other Liens or loans or other obligations secured
thereby, or of any interest of Lender in the Mortgaged Property, or the manner
of collection of such taxes, so as to materially and adversely affect the
Mortgage or the Secured Obligations, then promptly following demand by Lender,
Borrower shall pay all taxes, assessments or other charges resulting therefrom
unless Borrower shall not, under Applicable Law, be permitted to pay such taxes,
assessments or other charges, in which case Lender shall be entitled to declare
the Secured Obligations immediately due and payable.
SECTION 2.9. General Provisions as to Payments. Borrower shall
make each interest payment on the Loan not later than 1:00 P.M. (New York City
time) on the date when due, by wire or electronic transfer in Federal or other
funds immediately available, to Lender at the account established by or for the
benefit of Lender in accordance with the instructions set forth on Exhibit C, or
to such other account or accounts in the continental United States as Lender may
from time to time
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designate by not less than fifteen days prior written notice to Borrower.
SECTION 2.10. Computation of Interest. Interest on the Loan
hereunder shall be computed on the basis of a year of 360 days consisting of
twelve 30-day months (including the first day but excluding the last day). The
number of days contained in the period from any Quarterly Date to the next
succeeding Quarterly Date shall be deemed to be ninety (90) days, and the
interest on the Loan shall be payable in four equal quarterly installments on
each Quarterly Date occurring during any calendar year, through and including
the last calendar day of the calendar month in which such Quarterly Date occurs,
notwithstanding the fact that such payment is being made on the Business Day
immediately preceding the 30th day of the applicable calendar month.
Notwithstanding anything else stated herein to the contrary, with respect to the
period from the Closing Date to the first occurring Quarterly Date, interest on
the Loan shall accrue based upon the actual number of days contained in each
such period.
SECTION 2.11. Interest on Reimbursable and Other Amounts. If,
pursuant to the terms of any Loan Document, Lender shall have the right to make
and shall make any payment on behalf of Borrower, or shall have the right to
incur and shall incur any expense for which Lender is entitled to reimbursement
pursuant to the terms of the Loan Document, Borrower shall reimburse Lender for
the amount so paid or incurred by Lender within three (3) Business Days after
demand therefor, or, if an Event of Default has occurred and is continuing, on
demand, and any amounts not paid when due shall bear interest, payable on
demand, for each day they remain due and unpaid at the Default Rate as in effect
for such day. Such interest, and any other interest on the obligations under the
Loan Documents payable at the Default Rate pursuant to the terms of the Loan
Documents, shall accrue through the date paid notwithstanding any intervening
judgment of foreclosure or sale.
ARTICLE 3
CONDITIONS
SECTION 3.1. Conditions to Borrowing. The obligation of Lender
to make the Loan on the date of the Borrowing is subject to the satisfaction of
the following conditions by Borrower:
(a) receipt by Lender of a duly executed Note of Borrower
payable to the order of Lender, in the form of Exhibit A hereto, dated on or
before the Closing Date;
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(b) receipt by Lender of opinions of counsel covering such
matters reasonably requested by and in form and substance reasonably
satisfactory to Lender;
(c) receipt by Lender of such other documents Lender may
reasonably request relating to the corporate existence of Borrower, the
corporate authority for and the validity of the Loan Documents, and any other
matters relevant to the transactions contemplated by the Loan Documents, all in
form and substance reasonably satisfactory to Lender;
(d) receipt by Lender of the Notice of Borrowing pursuant to
Section 2.2, unless waived by Lender;
(e) the fact that the representations and warranties of
Borrower contained in this Agreement shall be true in all material respects on
and as of the Closing Date except that any such representations and warranties
which are made as of a day other than the Closing Date shall be true in all
material respects as of such date; and
(f) the delivery of such other documents or instruments or
taking of such other actions as Borrower is required to deliver or take under
the Loan Documents or as Lender shall reasonably request to effectuate the
transactions contemplated by the Loan Documents in accordance with the
provisions thereof.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants, for itself and on behalf of
each Owner, if applicable, that:
SECTION 4.1. Organization and Qualification. Borrower is a
corporation duly formed, validly existing and in good standing under the laws of
the State of Pennsylvania and is, and will be as of the Mortgage Delivery Date,
duly qualified to do business in and in good standing in the State where the
Mortgaged Property (or any portion thereof) is located to the extent required
under the laws of such State and has all requisite corporate power and authority
to carry on its business as now conducted and to execute and deliver, and
perform its obligations under, the Loan Documents to which it is a party.
SECTION 4.2. Authorization; No Contravention; Binding Effect.
(a) The execution, delivery and performance by Borrower of the Loan Documents,
to which it is a party, are, in each case, within its corporate powers; have
been duly authorized by all necessary corporate action; require no Governmental
Action, except such filings as have been made and as to which any
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required waiting periods have elapsed; do not contravene, or constitute a
default under, any provision of Applicable Law or of its certificate of
incorporation or bylaws or result in the creation or (except for the Liens
created by the Collateral Documents) imposition of any Lien on any of its
assets, and do not contravene, or constitute a default under, any agreement,
judgment, injunction, order, decree or other instrument binding upon it in a
manner which would have a material adverse effect on (i) the ability of Borrower
to conduct its business in the ordinary course, (ii) the financial condition of
Borrower considered on a consolidated basis, (iii) the ability of Borrower to
perform its obligations under this Agreement or any other Loan Document or (iv)
the validity of the Liens created by the Loan Documents.
(b) When executed and delivered, each of the Loan Documents
will constitute valid and binding agreements of Borrower and each of the Owners,
to the extent that it is a party thereto, and the Note, when executed and
delivered in accordance with this Agreement, will constitute a valid and binding
obligation of Borrower and, if applicable, to each of the Owners, in each case
enforceable in accordance with its terms except as the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws relating to the
enforcement of creditors' rights generally and by general equitable principles
(regardless of whether such matter is considered in a proceeding at law or in
equity).
SECTION 4.3. Litigation. Except as described in Borrower's
Current Report on Form 8-K dated January 30, 1997 and Borrower's Forms 10-K and
10-Q, there is no action, suit or proceeding pending against, or, to the actual
knowledge of Borrower, threatened against or affecting Borrower before any court
or arbitrator or any governmental body, agency or official in which there is a
substantial likelihood of an adverse decision which would materially adversely
affect the ability of Borrower to perform its obligations under the Loan
Documents.
SECTION 4.4. Regulatory Restrictions on Borrowing. Borrower is
not an "investment company" within the meaning of the Investment Company Act of
1940, as amended, or a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
SECTION 4.5. [RESERVED]
SECTION 4.6. Representations in Collateral Documents True and
Correct. Each of the representations and warranties of Borrower and the Owners,
if applicable, to be contained in the Collateral Documents will be true and
correct in all material respects on and as of the date of execution thereof.
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SECTION 4.7. Other Representations and Warranties as to
Mortgaged Property. With respect to the Mortgaged Property, Borrower represents
and warrants for itself and on behalf of each of the applicable Owners, that as
of the Mortgage Delivery Date:
(i) To the extent that Borrower is not the record owner of
all of the Mortgaged Property on such date, it shall have caused the
applicable Owner of such fee interest in such Mortgaged Property or
Individual Property, as the case may be, to become a party to this
Agreement by executing a counterpart signature page hereof and to
become an Obligor under the Note, or a replacement thereof,
substantially in the form of Exhibit A, in an amount not to exceed the
Fair Market Value of such Owner's Mortgaged Property or Individual
Property, as applicable.
(ii) The Borrower or the Owners, as applicable, will have
good, marketable and valid record title to and be lawfully seized of an
indefeasible fee simple estate in all of the Mortgaged Property, free
and clear of any liens or encumbrances except for Permitted Liens and
Permitted Encumbrances and will warrant and for so long as Borrower's
obligations hereunder remain outstanding defend the title thereof unto
Lender against any and all claims whatsoever, subject to Permitted
Liens and Permitted Encumbrances and Borrower further warrants that the
Mortgage shall constitute a valid lien upon the Mortgaged Property.
(iii) The Fair Market Value of the Mortgaged Property
shall be equal to not less than the Required Value.
(iv) There will be no agreements pursuant to which a right
of reversion, option to purchase, right of first refusal or first
offer, right of approval of a purchaser or occupant or similar right
exists or by which Borrower or any Owner of any Mortgaged Property is
bound relating to the sale of any material portion of the Mortgaged
Property or the right to purchase or obligation to sell any material
portion of the Mortgaged Property.
(v) There are no agreements pursuant to which any third
party has purchased, or has a right or option to purchase, cut or
convey the standing timber located upon any material portion of the
Mortgaged Property, and there are no UCC-1 Financing Statements filed
or recorded against any material portion of the Mortgaged Property that
constitutes "fixtures" or "goods" under the UCC, including timber.
(vi) Neither Borrower nor any of the Owners will have
taken any action which would cause any Lien (other
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than Permitted Liens or Permitted Encumbrances and Liens being
contested pursuant to Section 5.10) to attach to any Mortgaged Property
nor will they have failed to take any action which would prevent any
Lien (other than Permitted Liens and Liens being contested pursuant to
Section 5.10) from attaching to any Mortgaged Property.
(vii) The Mortgaged Property will be in compliance in all
material respects with all Applicable Laws to the extent the failure to
be in compliance would have a Material Adverse Effect, and to
Borrower's actual knowledge, there will be no suits, actions, writs,
decrees, injunctions, orders, judgments, claims or proceedings pending
or threatened or contemplated, against or with respect to the Mortgaged
Property which would have a Material Adverse Effect.
(viii) Any information, books, records and other documents
regarding the Mortgaged Property delivered to Lender by Borrower or its
agents are, to Borrower's actual knowledge, true and correct in all
material respects and fairly present the information contained therein.
SECTION 4.8. Representations and Warranties of Lender. Lender
represents and warrants to Borrower as of the Closing Date that:
(i) Lender is a corporation, duly formed, validly existing
and in good standing under the laws of the State of Delaware, is duly
qualified to do business in the States where the Mortgaged Property (or
any portion thereof) is located to the extent required under the laws
of such States, and has all requisite corporate power and authority to
carry on its business as now conducted and to execute, deliver and
perform this Agreement and the other Loan Documents to be executed and
delivered by Lender.
(ii) The execution, delivery and performance by Lender of
this Agreement and the other Loan Documents to be executed and
delivered by Lender are within its corporate powers, have been duly
authorized by all necessary corporate action, require no Governmental
Action by or in respect of, or filing with, any Governmental Authority;
except such filings as have been made and as to which any required
waiting periods have elapsed and do not contravene, or constitute a
default under, any Applicable Laws or any provision of its certificate
of incorporation or by-laws or of any material agreement, judgment,
injunction, order, decree or other instrument binding upon it or result
in the creation or imposition of any Lien on any of its assets.
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(iii) This Agreement is a valid and binding agreement of
Lender, enforceable against Lender in accordance with its terms except
as the enforceability thereof may be limited by bankruptcy, insolvency
or other similar laws relating to the enforcement of creditor's rights
generally and by general equitable principles (regardless of whether
such matter is considered in a proceeding at law or in equity). When
executed and delivered, the Loan Documents to be executed and delivered
by Lender will be valid and binding agreements of Lender, enforceable
against Lender in accordance with their respective terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or
other similar laws relating to the enforcement of creditor's rights
generally and by general equitable principles (regardless of whether
such matter is considered in a proceeding at law or in equity).
ARTICLE 5
COVENANTS
Borrower covenants and agrees that so long as any amount
payable hereunder or under the Note remains unpaid:
SECTION 5.1. Mortgage Delivery. Borrower shall deliver or
cause to be delivered to Lender:
(a) not later than 180 days after the Closing Date, with
respect to sufficient Mortgaged Property as shall be necessary to meet or exceed
the Required Value, a (A) duly executed counterpart of the Mortgage in
recordable form executed by the applicable Owners of such Mortgaged Property,
with respect to such Mortgaged Property; and (B) duly executed counterparts of
any other Collateral Documents.
(b) at least five (5) Business Days prior to the Mortgage
Delivery Date, a copy of a last owner search or title report with respect to
each Individual Property comprising the Mortgaged Property identifying the
Borrower or applicable Owner as the current legal fee owner and holder of record
title to the applicable Individual Property.
(c) a certificate (a "Certificate") by each Owner, if
applicable, representing and warranting that as of the date of execution of the
Certificate and the Mortgage Delivery Date:
(i) The Owner is a corporation, limited partnership or
other entity, as the case may be, duly formed, validly existing and in
good standing under the laws of the State of its formation, and is, and
will be as of the Mortgage Delivery Date, duly qualified to do business
and in
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good standing in the State in which the Individual Property comprising
the Mortgage Property is located, to the extent required by the laws of
such State, and has all requisite organizational power and authority to
carry on its business as now conducted and to execute and deliver, and
perform its obligations under the Loan Documents;
(ii) That each of the representations and warranties
contained in Section 4.2, Section 4.3, Section 4.4, Section 4.6 and
Section 4.7 (as appropriately qualified or revised to reflect issues
not applicable to any such Owner) of this Agreement is true and correct
in all material respects on and as of the date of execution of the
Certificate and the Mortgage Delivery Date; and
(iii) Owner agrees to be and as of the Mortgage Delivery
Date will be subject to this Agreement and the Loan Documents upon
execution of such documents;
(d) with respect to all of the Mortgaged Property, an opinion
of counsel or counsels reasonably satisfactory to Lender, dated as of the
Mortgage Delivery Date, covering such matters reasonably requested by, and in
form and substance reasonably satisfactory to, Lender; and
(e) on or before the Mortgage Delivery Date, with respect to
all of the Mortgaged Property, any environmental transfer or disclosure forms
required by the State or the municipality in which any Individual Property is
located.
SECTION 5.2. Information. Borrower shall deliver or cause to
be delivered to Lender:
(a) within thirty (30) days of obtaining actual knowledge
thereof, notice of the occurrence of any of the following events: (i) the
failure of any of the Mortgaged Property to comply with any applicable
Environmental Law the result of which such failure to comply would reasonably be
expected to have a Material Adverse Effect; (ii) the issuance to any Borrower or
any lessee of any Mortgaged Property (or portion thereof) or any assignee of any
Borrower by any Governmental Authority of any request for information (other
than in the ordinary course of Borrower's business), complaint, citation,
summons, order, or notice of any violation, noncompliance or liability of any
nature whatsoever with regard to such Mortgaged Property or the use thereof with
respect to any applicable Environmental Laws; (iii) the receipt by Borrower of
any written notice from any Governmental Authority of a pending or threatened
investigation (other than routine inspection) by any Governmental Authority as
to the failure of the operations of any Mortgaged Property to be in compliance
with or under any applicable
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Environmental Law; or (iv) the occurrence of an event or the existence of a
situation which would result in a violation of or any material liability of
Borrower under any applicable Environmental Law or which is likely to result in
Borrower being liable to Lender for any amount by virtue of the indemnity given
by Borrower pursuant to Section 7.4(a);
(b) within five (5) days after Borrower obtains actual
knowledge of any Event of Default, if such Default is then continuing, a
certificate of Borrower setting forth the details thereof and the action which
Borrower is taking or proposes to take with respect thereto.
SECTION 5.3. Transfers. (a) From and after the Mortgage
Delivery Date Borrower shall not Transfer, nor shall Borrower suffer or permit
any Transfer of, the Mortgaged Property or any part thereof or interest therein,
except, provided no Event of Default has occurred and is continuing: (i)
Permitted Dispositions (other than Permitted Easements), (ii) Permitted
Easements, subject to Borrower's compliance with Section 5.3(b), (iii) Transfers
to any Subsidiary or Affiliate of Borrower; provided, that such Transfer shall
be subject to the lien of the Mortgage and all of the terms and conditions of
this Agreement and the other Loan Documents; and provided, further, that
Borrower shall, upon the request of Lender, promptly cause to be executed and
delivered to Lender an assignment and assumption agreement with respect to the
obligations of Borrower under the Loan Documents, between the applicable Owner
and such transferee, in form and substance reasonably satisfactory to Lender and
(iv) other Transfers permitted by Section 5.12(e), Section 7.7 and Section 7.8
hereof.
(b) Provided that no Material Event of Default shall have
occurred and be continuing, (i) Borrower may, from time to time, execute and
deliver Permitted Easements, plats or replans with respect to the Mortgaged
Property, and release existing Permitted Easements with respect to any Mortgaged
Property, and (ii) Lender shall, within ten (10) Business Days after Borrower's
request, execute and deliver to the grantee of any Permitted Easement, a
subordination agreement, subordinating the Lien of the Mortgage to such easement
or similar agreement.
(c) Lender shall have no obligation to pay and Borrower shall
pay (to the extent that non-payment by Borrower could result in an obligation to
Lender) any fees or expenses directly related to the granting or entering into
or the release (as the case may be) of any Permitted Easement, plat or re-plat
or other agreement (such as recording fees and transfer taxes) or to the
platting process (such as plat preparation costs, governmental fees and
recording costs). Within ten (10) Business Days of Borrower's receipt of the
executed documentation required
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for a transfer, platting or release, Borrower shall reimburse Lender for all of
Lender's reasonable out-of-pocket expenses incurred in connection with its
review of a Permitted Easement, plat, re-plat or other agreement or a release of
any thereof (as the case may be). Lender agrees to execute documents in
connection with re-platting of Mortgaged Property to facilitate Releases and
Substitutions as permitted hereunder.
SECTION 5.4. Liens. Borrower shall not create or permit to be
created or to remain, and shall promptly discharge or cause to be discharged,
any Lien on any Mortgaged Property or any interest therein, in each case (i)
whether voluntarily or involuntarily created, and (ii) whether subordinated
hereto, except, in each case, Permitted Liens.
SECTION 5.5. Mortgage Recording: Further Assurances. (a)
Notwithstanding anything to the contrary contained herein or in the Mortgage or
any other Loan Document, no Recording Documents (other than the Notice
Recording) shall be recorded or filed against or with respect to any Individual
Property located in a Non-Recording State without the consent of the Borrower
unless and until (i) either a Material Event of Default or a Downgrade Event
shall occur and be continuing, (ii) Lender shall have delivered to Borrower five
(5) Business Days prior notice of Lender's intent to so record or file any of
the Recording Documents and (iii) within such five (5) Business Day period, such
Material Event of Default or Downgrade Event shall not have been cured or
Borrower shall have failed to provide Lender with such additional security or
Collateral for the payment and performance of the obligations of Borrowers under
the Note and the other Loan Documents as shall be satisfactory to Lender.
(b) Subject to the provisions of paragraph (a) above Lender
(to the extent applicable) and Borrower shall execute and acknowledge and
deliver, and Borrower shall cause to be recorded or filed in the manner and
place required by any present or future law the Recording Documents. Upon the
happening and during the continuation of an Event of a Default, Borrower hereby
irrevocably appoints for such duration Lender as its attorney-in-fact (with a
power to substitute any other Person in its place as such attorney-in-fact) to
act in Borrower's own name, to execute, acknowledge, deliver and record the
documents described above upon the failure of Borrower to do so, and Borrower
hereby irrevocably authorizes and directs any other Person to rely and act on
behalf of the foregoing appointment and a certificate of the Person appointed to
act under this subsection that such Person is authorized to act under this
subsection. Subject to any applicable notice and cure provisions, the previous
sentence shall not prevent any default in the observance of this Section 5.5(b)
by Borrower from constituting an Event of Default. Borrower shall pay all costs
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and expenses in connection with the recording of any such Recording Documents.
(c) Borrower shall at its sole cost and expense, do, execute,
acknowledge and deliver all such further acts, deeds, conveyances, mortgages,
deeds of trust, assignments, notices of assignment and transfers as Lender shall
from time to time request, which may be necessary in the reasonable judgment of
Lender from time to time, to assure, perfect, convey, assign and transfer to
Lender the property and rights intended by the parties to be conveyed or
assigned pursuant to the Collateral Documents, or the filing, registering or
recording of such Collateral Documents.
(d) All costs and expenses in connection with the grant to
Lender of any Liens or security interests under the Collateral Documents,
including mortgage, document, stamp, intangible, recording, filing and other
taxes, fees and charges, Lender's reasonable legal fees and reasonable other
costs and expenses in connection with the granting, perfecting and maintenance
of any Liens or security interests under the Collateral Documents or the
preparation, execution, delivery, recordation or filing of documents and any
other acts as Lender may reasonably request in connection with the grant of such
Liens or security interests shall be paid by Borrower promptly upon demand.
(e) Borrower shall execute an acknowledgment and reaffirmation
of the Loan or other obligation hereunder or under any other Loan Document, in
such form and substance and at such times from time to time, as reasonably
requested by Lender.
SECTION 5.6. Title Insurance Upon Material Event of Default or
Downgrade. If at any time a Material Event of Default or a Downgrade Event shall
have occurred and be continuing and as a result thereof the Mortgage has been
recorded against the Mortgaged Property for the entire outstanding principal
amount of the Loan in any Non-Recording State, Borrower shall, upon demand by
Lender, deliver as soon as practicable to Lender or its designee, with respect
to the Mortgaged Property or such Individual Property as designated by Lender, a
mortgagee's policy or policies of title insurance on American Land Title
Association or local equivalent forms and in form and substance reasonably
satisfactory to Lender, issued by the Title Company, insuring the Lien created
under the Mortgage encumbering such Mortgaged Property in such amounts as are
designated by Lender (which shall not, in the aggregate exceed the then
outstanding principal amount of the Loan), subject only to Permitted Liens and
Permitted Encumbrances, and containing such reinsurance agreements, affirmative
assurances and endorsements, including a first-dollar endorsement, a last-dollar
endorsement and a tie-in
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endorsement, as are reasonably and customarily required by lenders for similar
transactions secured by properties similar to the Mortgaged Property in size,
location and utility, if available in the State where such portion of the
Mortgaged Property is located, with all premiums, expenses and fees paid or
caused to be paid by Borrower. Borrower shall execute and deliver to the Title
Company an owner's affidavit typically required by such companies in connection
with the issuance of such policy of title insurance and sufficient to permit the
customary omission of the standard exceptions. To the extent there has occurred
and is continuing a Material Event of Default, if a Substitute Property is
substituted for a Released Property for the Mortgaged Property as to which a
mortgagee's title policy has been issued pursuant to this Section 5.6, then a
like amount of title insurance shall be purchased for such Substitute Property
at Borrower' cost and expense.
SECTION 5.7. Environmental Covenant. Borrower shall not cause
or permit or suffer, and shall require its subtenants and its and their
respective agents, employees, contractors, licensees and invitees not to cause
or permit or suffer, the existence, use or release (including a release as
defined in 42 U.S.C. Sections 9601(22), a "Release"), generation, treatment,
storage, recycling, transportation or disposal of any Hazardous Substances
(each, a "Regulated Activity") on or in any Mortgaged Property in a manner which
could reasonably be expected to have a Material Adverse Effect on the Mortgaged
Property under any Environmental Law. Borrower shall comply, and shall require
its employees and its subtenants and assigns and its and their respective
agents, employees, contractors, licensees and invitees to comply, in all
material respects, with all applicable Environmental Laws. In the event that any
portion of the Mortgaged Property is not in compliance in all material respects,
with all applicable Environmental Laws, Borrower covenants that it shall either
(A) within thirty (30) days of Borrower's actual knowledge of such event, effect
a Release or Substitution of such portion of the Mortgaged Property pursuant to
Section 7.7 hereof, in accordance with all of the applicable criteria set forth
in 7.7 for a Release or Substitution, as the case may be, or (B) use all
commercially reasonable efforts to remedy, or cause to be remedied in a timely
manner (and in any event within the time period permitted by applicable
Environmental Laws), such non-compliance, subject, however to Borrower's right
to contest alleged non-compliance of such Environmental Laws in accordance with
Section 5.10. Borrower shall require that any Alterations of any Mortgaged
Property undertaken by, through or under the Borrower be done in material
compliance with applicable Environmental Laws.
SECTION 5.8. Impositions. Borrower shall (i) subject to
Section 5.10, duly and punctually pay all Impositions prior to
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the delinquency date thereof; (ii) subject to Section 5.10, duly and punctually
file all returns and other statements required to be filed with respect to any
Imposition prior to the delinquency date thereof (iii) within five (5) Business
Days after their receipt thereof, notify Lender of the receipt by Borrower of
any notice of default in the payment of any Imposition or in the filing of any
return or other statement relating to any Imposition and simultaneously furnish
to Lender a copy of such notice of default; and (iv) not make deduction from or
claim any credit on any Secured Obligation by reason of any Imposition and, to
the extent permitted under Applicable Law, Borrower hereby irrevocably waives
any right to do so.
SECTION 5.9. Legal and Insurance Requirements. (a) Borrower
represents and warrants that as of the Mortgage Closing Date, (i) the Mortgaged
Property and the use and operation thereof will comply, in all material
respects, with all Legal Requirements and Insurance Requirements, (ii) to the
actual knowledge of Borrower, there will be no material default under any Legal
Requirement or Insurance Requirement, and (iii) the execution, delivery and
performance of the Mortgage with respect to the Mortgaged Property will not
contravene any provision of or constitute a violation of any Legal Requirement
or Insurance Requirement the result of which failure to comply would reasonably
be expected to have a Material Adverse Effect.
(b) Borrower shall (i) duly and punctually comply with and
cause the Mortgaged Property to comply in all material respects with all Legal
Requirements and Insurance Requirements the result of which failure to comply
would reasonably be expected to have a Material Adverse Effect, other than Legal
Requirements and Insurance Requirements, the validity or applicability of which
are being contested pursuant to Section 5.10; and (ii) procure, maintain and
duly and punctually comply in all material respects with all Permits required
for any construction, reconstruction, repair, alteration, addition, improvement,
maintenance, use and operation of the Mortgaged Property as conducted from time
to time other than Permits, the necessity of which are being contested pursuant
to Section 5.10.
SECTION 5.10. Permitted Contests. Borrower may contest and/or
settle at its expense, by appropriate proceedings conducted in good faith and
with due diligence, with respect to any Mortgaged Property, any Legal
Requirement, any Insurance Requirement or any Imposition without Lender's
consent; provided that (i) no Material Event of Default shall have occurred and
be continuing at any time during such contest; (ii) such Mortgaged Property is
not in material danger of being sold (or be subject to imminent sale), forfeited
or lost, as a result of such contest or proceedings; (iii) if the Mortgage shall
have been recorded, there shall not be a material risk of the loss of priority
of the
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Lien of the Mortgage with respect to such Mortgaged Property; (iv) in the case
of any Legal Requirement, Lender is not in danger of any criminal or material
civil penalty or any other material liability for failure to comply therewith
unless, in the case of any such civil penalty or other material liability or
risk of loss of priority, Borrower furnishes to Lender security reasonably
satisfactory to Lender against such penalty or liability.
SECTION 5.11. Insurance. (a) Borrower shall have the right to
self-insure against loss or damage to the Mortgaged Property as a result of fire
or other casualty and against liability for death or injury to persons thereon
(except if self insurance is prohibited by Applicable Laws) and shall notify
Lender in writing of its election to self-insure. Borrower shall pay all
self-insured and deductible amounts in the same manner and to the same Persons
as and when such amounts are to be paid under the applicable Loan Documents if
such amounts were Insurance Proceeds and such self-insurance must afford the
same benefits and coverages that Lender would have if Borrower had maintained
the insurance required under this Section 5.11 with third-party insurers.
(b) In the event Borrower does not elect to self-insure under
Section 5.11(a) above, Borrower shall maintain or cause to be maintained in full
force and effect casualty and liability insurance policies (including a blanket
policy of coverage) with respect to the Mortgaged Property and in the amounts
and covering such risks as are usually covered by prudent owners or operators
engaged in similar businesses involving similar properties in the same general
area as the Mortgaged Property.
SECTION 5.12. Additional Covenants. (a) Borrower shall duly
and promptly (i) pay the principal and interest on the Note or Eligible
Indebtedness, as applicable, and all other monetary obligations hereunder or
under any other Loan Document, on the dates due and in the manner provided
herein, and (ii) duly and punctually observe and/or perform all of the other
covenants or conditions set forth herein as in the other Loan Documents to be
observed or performed by Borrower.
(b) Borrower may not, and may not permit any Affiliate or
Subsidiary to, issue, incur, assume, guarantee or suffer to exist any
indebtedness for borrowed money secured by a pledge of, lien on, or security
interest in, the Mortgaged Property that is not subordinate to the lien of the
Mortgage, except for Permitted Liens and Permitted Encumbrances.
(c) Borrower will not, and will not permit any Subsidiary to,
directly or indirectly, create, incur, assume or
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suffer to exist, any mortgage, pledge, security interest or lien (a "Financing
Lien") of or upon any of their respective properties or assets, whether real or
personal, tangible or intangible, or otherwise, whether owned at the Closing
Date or thereafter acquired ("Property"). This limitation does not apply,
however, to any of the following: (1) the Mortgage to be granted in favor of the
Lender to secure the Note; (2) Financing Liens on any Property created or
assumed contemporaneously with (or within 120 days after) the acquisition of
such Property to secure or provide for the payment or refinancing of all or any
substantial part of the purchase price of such Property or the cost of
improvements to such Property; provided that (i) the principal amount of the
Indebtedness secured by such Financing Liens does not exceed 100% of the costs
of such Property and/or improvements and (ii) such Financing Liens shall not
apply to any Property of Borrower or any Subsidiary, other than the acquired
Property and any improvements with respect thereto; (3) Financing Liens on any
Property existing at the time of acquisition thereof; provided, that such
Financing Liens (i) shall not extend to any Property of Borrower or any
Subsidiary other than the Property so acquired and (ii) are not incurred in
connection with or in contemplation of the acquisition of the Property acquired;
(4) Financing Liens on any Property to secure Indebtedness of a Subsidiary to
Borrower or to another Subsidiary; (5) Financing Liens for Impositions not yet
due or which are being contested in accordance with Section 5.10 hereof; (6)
warehousemen's, mechanics', carriers', materialmen's, repairmen's and other like
Financing Liens incurred in the ordinary course of business, and Financing Liens
securing reimbursement obligations with respect to trade letters of credit,
banker's acceptances and sight drafts incurred in the ordinary course of
business which encumber documents and other property relating to such letters of
credit, banker's acceptances and sight drafts; (7) Financing Liens existing on
the date of this Agreement; (8) in addition to Financing Liens incurred in
connection with any Indebtedness permitted by any other provision of this
Section 5.12(c), Financing Liens securing indebtedness in an aggregate principal
amount which does not in the aggregate at the time any such Financing Lien is
incurred, exceed 10% of Consolidated Net Tangible Assets; (9) Financing Liens on
any Property in favor of the United States of America or any State thereof or
the Commonwealth of Puerto Rico, or any department, agency or instrumentality or
political subdivision of the United States of America or any State thereof or
the Commonwealth of Puerto Rico, to secure partial, progress, advance or other
payments, or other obligations pursuant to any contract or statute or to secure
any indebtedness or other obligations incurred for the purpose of financing all
or any part of the cost of acquiring, constructing or improving the Property
subject to such Financing Liens (including Financing Liens incurred in
connection with pollution control, industrial revenue, Title XI maritime
financings or
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similar financings); (10) Financing Liens on timberlands in connection with an
arrangement under which Borrower and/or one or more Subsidiaries are obligated
to cut or pay for timber in order to provide the lienholder with a specified
amount of money, however reasonably determined; or (11) any extension, renewal
or replacement (or successive extensions, renewals or replacements) in whole or
in part, of any Financing Lien referred to in the foregoing clauses (1) to (10)
inclusive; provided, however, that the principal amount of Indebtedness secured
thereby shall not be in excess of the outstanding principal amount of
Indebtedness so secured at the time of such extension, renewal or replacement,
and that such extension, renewal or replacement shall be limited to all or a
part of the Property which secured the Financing Lien so extended, renewed or
replaced (plus improvements on such property).
(d) Borrower will not, nor will it permit any Subsidiary to,
enter into directly or indirectly any arrangement with any person (other than
Borrower or any Subsidiary) providing for the leasing by Borrower or a
Subsidiary of any Property (except for temporary leases for a term, including
any renewal thereof, of not more than three years), which Property has been or
is to be sold or transferred by the Borrower or such Subsidiary to such person
(herein referred to as a "Sale and Lease-Back Transaction"), unless either (1)
Borrower or such Subsidiary would be entitled under Section 5.12(c) hereof to
incur Indebtedness secured by a Financing Lien on the Property to be leased
equal to or exceeding the amount of the net proceeds received by Borrower or
such Subsidiary with respect to such Sale and Lease-Back Transaction or (2)
within 90 days after the effective date of any such Sale and Lease-Back
Transaction, Borrower or such Subsidiary applies an amount (net of applicable
taxes) equal to the greater of (x) the net proceeds of such sale or transfer and
(y) the fair value at the time of the transaction (as determined by the Board of
Directors) of the property so leased to the retirement (other than any mandatory
retirement) of any funded Indebtedness of Borrower or any Subsidiary which by
its terms is senior to, or pari passu with, the Note.
(e) Borrower shall not consolidate with or merge into any
other corporation or sell, lease, convey, transfer or otherwise dispose of all
or substantially all of its properties or assets in one transaction or a series
of related transactions to any person unless:
(1) the corporation formed by such consolidation or into
which the Borrower is merged or the person which acquires by conveyance
or transfer the properties and assets of the Borrower substantially as
an entirety shall be a corporation organized and existing under the
laws of the United States of America, any State thereof or the District
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of Columbia, and the transferee or successor corporation, if other than
the Borrower, shall expressly assume, by an agreement supplemental
hereto, executed and delivered to the Lender for the Note, in form
satisfactory to such Lender, the due and punctual payment of the
principal of and interest, if any, (including all additional amounts,
if any, payable pursuant to this Agreement) on the Note and the
performance of every covenant of this Agreement on the part of the
Borrower to be performed or observed;
(2) immediately after giving effect to such transaction,
no Event of Default with respect to the Note, and no event which, after
notice or lapse of time or both, would become an Event of Default with
respect to any series of the Note, shall have happened and be
continuing; and
(3) the Borrower has delivered to the Lender a certificate
by an officer of Borrower, in a form and substance reasonably
satisfactory to Lender, and an opinion of counsel, in a form and
substance reasonably satisfactory to Lender, each stating that such
consolidation, merger, conveyance or transfer and such supplemental
agreement comply with the applicable provisions of this Agreement and
that all conditions precedent provided for in this Section 5.12(e)
relating to such transaction have been complied with.
For purposes of this Section 5.12 hereof,
"Capitalized Lease Obligation" means obligations under a lease
that are required to be capitalized for financial reporting purposes in
accordance with generally accepted accounting principles, and the amount of
Indebtedness represented by such obligations shall be the capitalized amount of
such obligations determined in accordance with generally accepted accounting
principles.
"Consolidated Net Tangible Assets" means the aggregate amount
of assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) total current liabilities (excluding debt or any
guaranty thereof due within 12 months), (b) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth in the most recent consolidated balance sheet of
Borrower and its consolidated subsidiaries and computed in accordance with
generally accepted accounting principles.
"Indebtedness" of any person shall mean, at any date, any of
the following (without duplication): (a) all obligations unconditional or
contingent, of such person for borrowed money or evidenced by bonds, debentures,
notes or other similar
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instruments or letters of credit; (b) all obligations of such person to pay the
deferred purchase price of property or services, except accounts payable and
accrued liabilities, in each case, arising in the ordinary course of business;
(c) Capitalized Lease Obligations of such person; (d) reimbursement obligations
of such person with respect to letters of credit; (e) all Indebtedness of others
secured by a lien on any asset of such person, whether or not such indebtedness
is assumed or guaranteed by such person; and (f) all Indebtedness of others
guaranteed by such person; and the amount thereof shall be the outstanding
principal balance of any such unconditional obligations as described in (a)
through (f) and the maximum liability of any such conditional obligations at
such date.
"Subsidiary" means any corporation, partnership or other
entity the outstanding securities or interests of which having ordinary voting
power to elect a majority of the board of directors or similar governing body of
such corporation, partnership or other entity (whether or not any other class of
securities has or might have voting power by reason of the happening of a
contingency) are at the time owned or controlled directly or indirectly by the
Issuer or one or more Subsidiaries or by the Issuer and one or more
Subsidiaries.
ARTICLE 6
DEFAULTS
SECTION 6.1. Events of Default. Any of the following
occurrences or acts shall constitute an "Event of Default":
(a) Borrower shall fail to pay when due hereunder or under the
Note or Eligible Indebtedness, as applicable, (i) any interest on the Loan and
such failure shall continue for thirty (30) days or (ii) the principal amount of
the Loan;
(b) Borrower shall fail to make any payment due under the Loan
Documents other than as described in Section 6.1(a) when the same shall become
due and such failure shall continue for sixty (60) days after Lender shall have
given Borrower written notice specifying such default and demanding the same be
cured;
(c) Except as to Section 6.1(h), Borrower shall fail to
observe or perform any other covenant contained herein or in any other Loan
Document, including any Transfer of the Mortgaged Property in violation of the
provisions of any of the Loan Documents, for sixty (60) days after notice of
such failure has been given to Borrower by Lender; provided that if such failure
is susceptible to cure but not within such sixty (60)-day period then Borrower
shall have such additional time as shall be reasonably necessary to complete
such cure, as long as Borrower has commenced taking steps to cure such failure
within sixty (60)
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days of such notice and continues diligently and in good faith to pursue the
cure to completion, it being intended that the time within which to cure shall
be extended for such period as may be necessary to complete the curing of the
same in good faith and with due diligence;
(d) Either Borrower or any of the Owners shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing;
(e) an involuntary case or other proceeding shall be commenced
against Borrower or any of the Owners seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of ninety (90) days;
(f) any representation or warranty of Borrower or any of the
Owners set forth herein or in any other Loan Document to which it is a party, or
in any notice, certificate, demand, request or other document or instrument
delivered by the Borrower in connection with this Agreement or pursuant hereto
or in connection with or pursuant to any other Loan Document shall prove to have
been incorrect or misleading (x) in any material respect when made and (y) at
the time of discovery is material and is not cured within sixty (60) days of
notice thereof by Lender to Borrower specifying such default and demanding that
the same be cured (or, in the case of a default which is curable but cannot be
cured with the payment of money and which cannot with due diligence be wholly
cured within such sixty (60)-day period, if Borrower shall fail to commence to
cure the same within said sixty (60)-day period, or, having promptly so
commenced to cure the same shall fail thereafter to prosecute the curing thereof
in good faith and with all due diligence, it being intended that the time within
which to cure shall be extended for such period as may be necessary to complete
the curing of the same in good faith and with due diligence);
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(g) the estate or interest of Borrower in any material portion
of the Mortgaged Property shall be levied upon or attached in any proceeding and
such process shall not be vacated or discharged within ninety (90) days after
such levy or attachment, unless Borrower shall be contesting such levy or
attachment in accordance with the requirements of Section 5.10.
(h) Borrower shall fail to satisfy, in all material respects,
the requirements of Section 5.1 within 180 days of the Closing Date.
Notwithstanding anything contained in Sections 6.1(c) or
6.1(f) to the contrary, with respect to any representation or warranty referred
to in Section 6.1(c) or Section 6.1(f) or any other covenant relating to
Permitted Encumbrances, title or survey matters or any other similar documents
or agreements relating to the use of any Mortgaged Property, the fact that (a)
the representation or warranty was incorrect or misleading or (b) a covenant was
breached shall not (x) give rise to a right of Lender to cause Borrower to cure
any such breach of a covenant or (y) constitute an Event of Default, unless and
until the fact that the representation or warranty was incorrect or misleading
or the covenant was breached gives rise to a Material Adverse Effect.
SECTION 6.2. Remedies. Upon the occurrence of an Event of
Default, Lender may by notice to Borrower (i) declare the Loan and the Note or
Eligible Indebtedness, as applicable, to be, and the Loan shall thereupon
become, immediately due and payable without any additional presentment, demand,
protest or other notice of any kind, all of which are hereby waived by Borrower
and (ii) demand payment of the principal of and accrued and unpaid interest
(including interest on overdue interest in accordance with Section 2.5) on the
Note or Eligible Indebtedness, as applicable; provided that in the case of any
of any Event of Default specified in Section 6.1(d), 6.1(e), or 6.1 (h), without
any notice to Borrower or any other act by Lender, the Loan and the Note or
Eligible Indebtedness, as applicable (together with accrued interest thereon)
shall be immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by Borrower and (iii)
from and after the Mortgage Delivery Date, exercise any rights or remedies set
forth in the Mortgage.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1. Notices. (a) All notices, requests, demands,
consents, approvals and other communications hereunder shall be in writing and
shall be deemed to have been given (i) if mailed by first class registered or
certified mail, postage
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prepaid, upon actual receipt or refusal to accept, (ii) if deposited for
overnight delivery with a nationally recognized courier service, upon receipt or
refusal to accept, or (iii) if delivered by hand, upon receipt or refusal to
accept, in each case addressed or directed as follows:
(A) if to Borrower:
P.H. Glatfelter Company
228 South Main Street
Spring Grove, Pennsylvania 17362
Attention: Corporate Secretary
with copies to:
Ballard Spahr Andrews & Ingersoll
1735 Market Street
Philadelphia, Pennsylvania 19103
Attention: Morris Cheston, Jr.
(B) if to Lender:
GWS Valuch, Inc.
P.O. Box 7048
Wilmington, Delaware 19803
Attention: Corporate Secretary
(b) On the Closing Date, or thereafter upon not less than
fifteen (15) days' written notice to the other party, Lender and Borrower shall
have the right to (i) add a copy party or copy address to those specified above,
(ii) change its address specified above and (iii) change its copy addressee or
copy address specified above or specified in a notice delivered pursuant to
clause (i) above.
SECTION 7.2. No Waivers. No failure or delay by Lender in
exercising any right, power or privilege hereunder or under the Note or Eligible
Indebtedness, if applicable, or any Collateral Document shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein and therein provided shall be
cumulative and not exclusive of any rights or remedies provided at law or in
equity.
SECTION 7.3. Expenses. Borrower shall pay to Lender within ten
(10) days after receipt of Lender's demand therefor: (a) all reasonable
out-of-pocket expenses of Lender, including fees and disbursements of counsel
for Lender, mortgage, document, stamp, intangible, recording, filing and other
taxes, fees and charges in connection with the preparation, recording, filing
and
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administration of the Loan Documents, including, subject to the other provisions
of this Agreement, the amount of any Impositions which Lender may have paid by
reason of the Lien of any of the Mortgages or to free any of the Mortgaged
Property from any Lien thereon (other than Permitted Liens or any Lien arising
by, through or under Lender or any Secured Party), any waiver or consent
thereunder or any amendment thereof or any Event of Default or alleged Event of
Default thereunder; (b) the amount of any and all reasonable out-of-pocket
expenses, including the fees and disbursements of outside counsel, the allocated
costs and disbursements of inside counsel and of any other experts or agents,
which Lender may incur, in connection with preserving the validity, perfection,
rank and value of the Lien of any Collateral Document or in connection with any
prepayment under Section 2.6 or 2.7, or any substitution of Collateral under
Section 7.7; and (c) if an Event of Default shall have occurred and be
continuing, all reasonable out-of-pocket expenses incurred by Lender, including
(without duplication) the fees and disbursements of outside counsel, the
allocated costs and disbursements of inside counsel for work on any matters
relating to such Event of Default and the fees and disbursements of any other
experts or agents, in connection with such Default and collection, bankruptcy,
insolvency and other enforcement proceedings resulting therefrom.
SECTION 7.4. Indemnification. (a) Borrower shall be liable for
and pay and shall indemnify, hold harmless and defend Lender and its Affiliates
and the directors, officers, agents, employees, partners, members, principals
and shareholders of each of them and each of their successors and assigns (each
an "Indemnified Party") from and against all Claims by a third party, Claims
arising from facts or circumstances occurring prior to the making of the Loan,
during the period that any portion of the Loan is outstanding, or after the Loan
has been repaid in full from or in connection with any of the following: (i)
this Agreement, the other Loan Documents, the Mortgaged Property, the Mortgage
or the performance or non-performance of any of the terms hereof or thereof by
Borrower or any other Person (other than an Indemnified Party), or the
enforcement of any of the terms hereof or thereof; (ii) the ownership,
possession, use, operation, condition, transfer of title, abandonment, sale or
other disposition of the Mortgaged Property; (iii) any accident, injury to or
death of persons or loss of property occurring on, in or about the Mortgaged
Property or any part thereof or on the adjoining sidewalks, curbs, adjacent
property or adjacent parking areas, street or ways; (iv) the performance of any
labor or services or the furnishing of any materials or other property in
respect of the Mortgaged Property or any part thereof; (v) any other act,
omission, conduct or misconduct of Borrower, any lessee of any of the Mortgaged
Property, or any of their respective agents, contractors, subcontractors,
servants,
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employees, licensees or invitees, to the extent the same relate to a specific
Mortgaged Property and arise as a result of an event occurring prior (a) to any
foreclosure and sale of such Mortgaged Property by Lender pursuant to any
Collateral Document or (b) Lender having actual and immediate possession custody
or control of the Mortgaged Property; (vi) any contest conducted pursuant to
Section 5.10 or 7.4(b); (vii) any matters arising under or relating to any
applicable Environmental Law; (viii) the occurrence of any Regulated Activity at
any time; (ix) the actual or alleged Release, threatened Release or presence of
any Hazardous Substances at, on, in, from or under the Mortgaged Property at any
time; (x) the failure of any Mortgaged Property to comply with Applicable Laws,
Agreements and Permits; (xi) the failure of Borrower to remove and discharge of
record, in accordance with the provisions of this Agreement, any Liens affecting
any Mortgaged Property, or the existence of any Liens affecting, or any defects
in Owner's fee title to the Mortgaged Property, in any case, other than
Permitted Liens or Permitted Encumbrances; and (xii) any exercise by any Person
of any right to use the surface or subsurface of any Property for the extraction
or development of minerals (including oil and gas), in each case other than any
Claim based upon any Permitted Encumbrances or any Permitted Dispositions.
Notwithstanding the foregoing, neither Borrower nor any Owner shall be liable to
pay or indemnify, hold harmless or defend any Indemnified Party from and against
any Claim (x) related to a change in interest rates, property values or other
general economic conditions or (y) to the extent such Claim arises out of the
willful misconduct or gross negligence of any Indemnified Party or accrues
during any period of time Lender has actual and immediate possession, custody or
control of the Mortgaged Property; provided, however, that the term "gross
negligence' shall not include negligence imputed as a matter of law to such
Indemnified Party solely by reason of such Indemnified Party's interest in any
Mortgaged Property or Lender's failure to act in respect of matters which are
the obligations of Borrower under the Loan Documents or by reason of the
negligence or willful misconduct of Borrower, their Affiliates and their
respective shareholders, directors, officers, employees and agents regardless of
whether such Persons or parties are acting as agent of Lender or on its behalf.
(b) Lender or the applicable Indemnified Party shall notify
Borrower in writing as soon as practicable after it learns that a Claim or
potential Claim with respect to which Borrower's indemnification obligation
under Section 7.4(a) applies or has been alleged to apply. Borrower and its
insurers shall have the right (in each such case at Borrower's sole cost and
expense) to investigate such Claim or potential Claim and, provided that:
(i) as soon as required in order to respond in a timely
manner, including, without limitation, within a time
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period sufficient to respond to any notice of any Claim for which any
Indemnified Party seeks indemnification hereunder, but in any event
within thirty (30) days of Borrower's receipt of written notice
thereof, Borrower shall notify Lender in writing whether or not it
intends to defend such Claim; and
(ii) a Material Event of Default shall not be continuing
on either the date upon which Borrower shall send notice under clause
(i) above or the date upon which Borrower seeks to commence the defense
in question;
to defend or contest any such Claim for which indemnification is sought pursuant
to this Section 7.4 with counsel selected by Borrower and reasonably acceptable
to such Indemnified Party (in the case of an insurer, counsel selected by the
insurer shall be deemed acceptable), and each Indemnified Party potentially
entitled to indemnification with respect to such Claim, at the request of
Borrower, shall reasonably cooperate at Borrower's sole cost and expense with
Borrower or its insurers with respect thereto, and provided, further, that if,
in the opinion of such counsel or any Indemnified Party, an actual material
conflict of interest exists between the interests of Borrower and the
Indemnified Party where it is advisable for such Indemnified Party to be
represented by separate counsel, such Indemnified Party may participate in the
conduct of the defense of proceedings relating to such Claim and shall be
represented by counsel selected by such Indemnified Party and reasonably
acceptable to Borrower. In such event, Borrower shall pay the reasonable costs
and expenses of such Indemnified Party's separate counsel. Except as otherwise
described in this paragraph, where Borrower or the insurers under a policy of
insurance maintained by Borrower undertake the defense of an Indemnified Party
with respect to such a proceeding relating to a Claim, no additional legal fees
or expenses of such Indemnified Party in connection with the defense of any such
proceeding relating to such Claim shall be indemnified hereunder unless the fees
or expenses were incurred at the written request of Borrower or such insurers.
Subject to the requirement of any policy of insurance applicable to a Claim, an
Indemnified Party may participate at its own expense at any judicial proceeding
controlled by Borrower or its insurers pursuant to the preceding provision to
the extent that such party's participation does not, in the reasonable opinion
of the counsel for Borrower or its insurers conducting such proceedings,
interfere with such control or, unless such Indemnified Party shall have
executed a confidentiality agreement reasonably acceptable to Borrower, result
in the disclosure of confidential information. Such participation shall not
constitute a waiver of the indemnification provided in this Section 7.4.
Borrower shall not enter into any settlement or compromise which Borrower has
not
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agreed to discharge or with respect to which Borrower has not agreed to
indemnify such Indemnified Party to such Indemnified Party's satisfaction. No
Indemnified Party shall enter into any settlement or other compromise with
respect to any Claim described in this Section 7.4 without the prior written
consent of Borrower, unless such Indemnified Party waives its right to be
indemnified under this Section 7.4 with respect to such Claim. Notwithstanding
anything to the contrary contained herein, if a Material Event of Default shall
occur at any time after Borrower shall have commenced to defend any Claim,
Borrower shall immediately (or at such time thereafter specified by Lender) upon
the demand of Lender cease defending such Claim and cooperate with Lender, in
all respects, to enable Lender to defend such Claim, at Borrower's cost, with
counsel selected by Lender.
(c) Subject to the right of Borrower and its insurer to
investigate or contest the same as set forth in this Section 7.4, any amount
determined to be payable under this Section 7.4 will be deemed an obligation
payable within fifteen (15) Business Days from the date on which the Indemnified
Party gives Borrower written notice of the Claim for indemnification hereunder,
or if an Event of Default shall have occurred and is continuing, on the date of
such notice. Any amounts payable pursuant to this Section 7.4 shall bear
interest pursuant to Section 2.11 from the date on which they become due and
payable to the date of payment. The obligations of Borrower under this Section
7.4 shall survive the termination of this Agreement.
SECTION 7.5. Amendments and Waivers. Any provision of any of
the Loan Documents to which Borrower is a party may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed by Borrower and
each Owner that is a party thereto and Lender.
SECTION 7.6. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
SECTION 7.7. Substitution and Release of Collateral. Borrower
may at any time from time to time (i) substitute as Collateral one or more of
Borrower's or its Affiliates' properties for the Mortgaged Property or any
portion thereof (a "Substitution") that exceeds the De minimus Transfer
Threshold (as defined in Section 7.8 below) or (ii) have a portion of the
Mortgaged Property that exceeds the De minimus Transfer Threshold released from
the Lien of the Mortgage without the substitution of additional Collateral (a
"Release"), and in that connection Borrower may obtain the release of the Lien
on such Mortgaged Property, by giving written notice to Lender of its intent to
do
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so and upon satisfaction of the following conditions on or before the date of
the Substitution or Release (the "Release Date"):
(a) no Material Event of Default shall have occurred and then
be continuing;
(b) in the case of a Release, (i) receipt by Lender of a
certificate from an authorized officer of Borrower identifying the Mortgaged
Property to be released as Collateral (each, a "Released Property"), and (ii)
Borrower shall have provided to Lender a certificate executed by an authorized
officer of Borrower having sufficient familiarity with the Mortgaged Property,
as appropriate, and the valuation thereof, which shall be certified to Lender
and dated not more than ten (10) days prior to the Release Date and shall
indicate that the aggregate Fair Market Value of the Mortgaged Property
remaining subject to the Lien of the Mortgage following the Release of the
Released Property is equal to or greater than the Required Value (such Fair
Market Value of the remaining Mortgage Property being based on the assumption
that Borrower has been and is at such time in compliance with the Loan
Documents);
(c) in the case of a Substitution, (i) receipt by Lender of a
certificate from an authorized officer of Borrower having sufficient familiarity
with the Mortgaged Property and the valuation thereof, identifying the Released
Property, and identifying one or more properties located in the United States
owned by Borrower or one of its Affiliates to be added as Collateral (each, a
"Substitute Property") and (ii) Borrower shall have provided to Lender a
certificate executed by an authorized officer of Borrower with knowledge of the
valuation of the Mortgaged Property, which shall be certified to Lender and
dated not more than ten (10) days prior to the Release Date and shall indicate
that (A) if the Substitution is for less than all of the Mortgaged Property, the
aggregate Fair Market Value of the Substitute Property in question is equal to
or greater than the aggregate Fair Market Value of the Released Property as of
the date the Released Mortgage Property became subject to the Lien of the
Mortgage or (B) if the Substitution is for all of the Mortgaged Property, the
aggregate Fair Market Value of the Substitute Property on the date of
substitution is equal to or greater than the Required Value (such Fair Market
Value of the Substitute Property being based on the assumption that Borrower has
been and is at such time in compliance with the Loan Documents); provided in the
case of a substitution following and as the result of a Casualty or a
Condemnation, the Fair Market Value of the Released Property shall be determined
assuming no such Casualty or Condemnation shall have occurred;
(d) receipt by Lender of (i) with respect to each Substitute
Property, a duly executed counterpart of a Mortgage,
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in recordable form, granting a Lien on such Substitute Property securing the
outstanding principal balance of the Loan as of the date of the applicable
substitution, any such Substitute Property being subject only to Permitted Liens
and Permitted Encumbrance as of the date of substitution; (ii) duly executed
counterparts of each of the other Collateral Documents relating to such
Substitute Property subject to and in accordance with Section 5.5, and (iii) if
such Substitute Property is substituted for a Released Property as to which a
Mortgagee's title policy has been issued pursuant to Section 5.6, (A) a policy
of title insurance meeting the requirements of Section 5.6 hereof and (B)
evidence that (x) each such Mortgage has been or will promptly be duly filed for
record in the real estate records in the appropriate county of the State where
such Substitute Property covered thereby is located, (y) each of such other
Collateral Agreements has been or will be so promptly filed for record, and (z)
all recording, filing, mortgage, intangible and similar taxes, fees and charges
with respect to such mortgage and other Collateral Agreements have been paid by
Borrower or that Borrower has provided for the payment thereof;
(e) receipt by Lender, with respect to a Substitution of an
opinion of counsel reasonably satisfactory to Lender in the State where such
Substitute Property or the remaining Mortgaged Property, as applicable, is
located, dated the date of the Substitution in form and substance substantially
similar to the opinions first furnished to Lender pursuant to Section 5.1(d),
satisfactory to Lender, provided that if the Substitute Property is located in a
State with respect to which Lender has theretofore received an opinion of
counsel covering such matters, an update of such opinion reasonably satisfactory
to Lender shall be acceptable;
(f) receipt by Lender of an opinion of counsel reasonably
satisfactory to Lender to the effect that there has been no change in law after
the date hereof that would result in the applicable Substitution or Release
adversely affecting Lender's qualification as a REIT;
(g) receipt by Lender, with respect to each Substitute
Property, of any environmental transfer or disclosure forms required in
connection with the applicable Substitution by the State or municipality in
which such Substitute Property is located; and
(h) receipt by Lender of any other documents it may reasonably
request including those relating to the organizational authority of Borrower or
its Affiliates, as applicable, to grant a Mortgage on any Substitute Property,
and all other matters relevant thereto, all in form and substance reasonably
satisfactory to Lender; and
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Upon Borrower's compliance with the conditions to the Substitution or Release,
as applicable, Lender shall execute a release of the Released Property from the
Lien of the Mortgage held by it or them, which release shall be in recordable
form and otherwise in form and substance reasonably satisfactory to Borrower,
and any other documents that Borrower may reasonably request in order to ensure
the termination of the Lien held by Lender as to the Released Property.
Notwithstanding the foregoing, the obligations and liabilities of Borrower,
whether actual or contingent, under the Loan Documents that are expressly stated
herein to survive the termination of the Lien as to such Released Property
(including, without limitation, Section 7.4) shall survive such termination.
Borrower shall pay all costs and expenses in connection with such substitution,
including fees and disbursements of special counsel to Lender and mortgage,
document, stamp, intangible, recording, filing and other taxes, fees and
charges.
SECTION 7.8. Transfers and Release of Certain Minor Parcels.
(a) Anything in this Agreement to the contrary notwithstanding, provided that no
Material Event of Default shall have occurred and be continuing under the Loan
Documents at the time of the Transfer, Borrower shall be entitled to (i)
Transfer (in one or more transactions) (each, "a De minimis Transfer") a portion
of the Mortgaged Property that does not, when taken together with all other
prior De minimis Transfers from the date of issuance of the Note, exceed either
(i) 500 acres or (ii) a Fair Market Value of $1,000,000 (the "De minimis
Transfer Threshold") without the consent of Lender.
(b) Upon the consummation of a De minimis Transfer, the
portion of the Mortgaged Property so transferred shall be automatically released
from the Lien of the Mortgage pursuant to the express terms thereof, without the
need for any further instrument, provided, however, that Lender, at Borrower's
request and at Borrower's sole cost and expense, shall execute, acknowledge and
deliver a Satisfaction and any deeds, conveyances, mortgages, amendments,
assignments or releases which may be necessary or appropriate to assure the
conveyance of such portion of the Mortgaged Property free and clear of the Lien
of the Mortgage.
(c) For any calendar year in which a De minimus Transfer shall
have occurred, Borrower shall, within 30 days after the expiration of such
calendar year, (i) provide to Lender a certificate executed by an authorized
representative of Borrower having sufficient familiarity with the Mortgaged
Property and the valuation thereof which shall (A) identify, by legal
description sufficient for recordation, each portion of the Mortgaged Property
so transferred and released as Collateral pursuant to this Section 7.8, (B)
indicate the aggregate acreage
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and Fair Market Value of any portion of the Mortgaged Property so transferred
and released pursuant to this Section 7.8, both during the calendar year in
question and cumulatively since the date of the Borrowing and (C) certify that
the aggregate Fair Market Value of the Mortgaged Property remaining subject to
the Lien of the Mortgage following the De minimus Transfer is equal to or
greater than the Required Value (such Fair Market Value of the remaining
Mortgaged Property being based on the assumption that Borrower has been and is
at such time in compliance with the Loan Documents); and (ii) cause to be
recorded in the appropriate county or counties a duly executed release, to
reflect the release of such portion of the Mortgaged Property from the Lien of
the Mortgage.
(d) In any calendar year in which the aggregate of all De
minimus Transfers shall be equal to or greater than the De minimus Transfer
Threshold, Borrower shall, in addition to providing the certifications required
in clauses (A) and (B) of Section 7.8(c) above, within 30 days after the
expiration of such calendar year, (i) provide to Lender a certificate executed
by an authorized representative of Borrower having sufficient familiarity with
the Mortgaged Property and the valuation thereof which shall certify that the
aggregate Fair Market Value of the Mortgaged Property remaining subject to the
Lien of the Mortgage following the most recent De Minimis Transfer during such
calendar year is equal to or greater than the Required Value (such Fair Market
Value of the remaining Mortgaged Property being based on the assumption that
Borrower has been and is at such time in compliance with the Loan Documents);
provided, that, in the event that Borrower is unable to provide such
certification because the Fair Market Value of the Mortgaged Property
(subsequent to the most recent De Minimis Transfer) has fallen below the
Required Value solely as a result of a general decline in the market value of
timberland due to general economic conditions beyond the control of the Borrower
and not as a result of any such De Minimis Transfers, then it shall not be an
Event of Default hereunder if Borrower shall deliver, in lieu of the required
certification above, a certification substantiating the effect of the foregoing;
and (ii) cause to be recorded in the appropriate county or counties a duly
executed release, to reflect the release of such portion of the Mortgaged
Property from the Lien of the Mortgage.
SECTION 7.9. Estoppel Certificates. Each party hereto agrees
that, once each year within thirty (30) days after request by one of the other
parties hereto, it will execute, acknowledge and deliver to such other party or
a third party designated by such other party, a certificate stating (a) that the
Mortgage is unmodified and in force and effect (or if there have been
modifications, that the Mortgage is in force and effect as modified, and
identifying the modification agreements); (b) the
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48
outstanding principal amount of the Loan and the date to which interest payments
on the Loan have been paid; and (c) whether or not there is any existing Event
of Default by Borrower in the payment of interest payments on the Loan.
SECTION 7.10. WAIVER OF JURY TRIAL. BORROWER AND LENDER EACH
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 7.11. SUBMISSION TO JURISDICTION. BORROWER AND LENDER
HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) SUBMIT IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT TO THE NON-EXCLUSIVE GENERAL JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY, THE COURTS OF
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK SITTING IN
NEW YORK COUNTY AND APPELLATE COURTS FROM ANY THEREOF; (B) CONSENT THAT ANY SUCH
ACTION OR PROCEEDING MAY BE BROUGHT IN ANY SUCH COURTS AND WAIVE ANY OBJECTION
THAT THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURTS OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN
AN INCONVENIENT COURT AND AGREE NOT TO PLEAD OR CLAIM THE SAME; (C) AGREE THAT
SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED IN THE
MANNER SPECIFIED FOR NOTICES AND OTHER COMMUNICATIONS IN SECTION 7.1 AND SHALL
BE EFFECTIVE AS PROVIDED IN SECTION 7.1; AND (D) AGREE THAT NOTHING HEREIN SHALL
AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION OR COURT HAVING
JURISDICTION.
SECTION 7.12. GOVERNING LAW. THIS AGREEMENT AND THE NOTE SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE CONFLICT-OF-LAW PROVISIONS THEREOF.
SECTION 7.13. Counterparts Integration. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 7.14. [RESERVED].
SECTION 7.15. Lost Notes. Upon receipt by Borrower of evidence
reasonable and satisfactory to it of the loss, theft, destruction or mutilation
of the Note or Eligible Indebtedness, as applicable, and (in case of loss, theft
or destruction) of indemnity reasonably satisfactory to them, and upon surrender
and
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49
cancellation of such Note or Eligible Indebtedness, if mutilated, within three
(3) Business Days thereafter, Borrower will deliver to the Lender in lieu of
such Note or Eligible Indebtedness, a new note in a like unpaid principal
amount, dated as of the date to which interest has been paid thereon.
SECTION 7.16. Termination. (a) This Agreement shall cease,
terminate and thereafter be of no further force or effect (except as provided
otherwise in the Loan Documents) upon the payment in full of all Secured
Obligations (other than obligations that may arise from and after the date of
release under any indemnification provisions included in any of the Loan
Documents) and in the event that this Agreement is so terminated, the Mortgaged
Property shall become free and clear of the liens, grants, security interests
and conveyances evidenced by the Mortgage and the Lender shall release or cause
to be released without warranty the Mortgage and the Mortgage shall be void and
the terms thereof shall be of no further force and effect, except to the extent
any such terms shall, by the terms of this Agreement or any other Loan Document,
survive such payment in full of all the Secured Obligations and this release.
IN WITNESS WHEREOF, Borrower and Lender have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
Borrower:
P.H. GLATFELTER COMPANY
By:_______________________________
Name: R.P. Newcomer
Title: Senior Vice President,
Treasurer and Chief
Financial Officer
Lender:
GWS VALUCH, INC.
By:_______________________________
Name: Robert S. Wood
Title: Secretary and Treasurer
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EXHIBIT A
PROMISSORY NOTE
$_____________
February __, 1997
FOR VALUE RECEIVED, P.H. Glatfelter Company, a Pennsylvania
corporation ("Borrower") promises to pay to the order of GWS Valuch, Inc. a
Delaware corporation ("Lender"), the principal amount of _____________________
AND 00/100 DOLLARS ($________.00) (or such lesser principal amount of the Loan
made by Lender to Borrower pursuant to the Loan Agreement defined below as may
then be outstanding) on the Maturity Date. Borrower also promises to pay
interest on the unpaid principal amount of the Loan on the dates and at the
rates provided for in the Loan Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in federal or other
immediately available funds as specified in or pursuant to the Loan Agreement.
This Note is the Note referred to in the Loan Agreement dated
as of ___________, 1997, between Borrower and Lender (as the same may be
amended, supplemented or otherwise modified from time to time, the "Loan
Agreement"). Terms defined in the Loan Agreement are used herein with the same
meanings. Reference is made to the Loan Agreement for provisions for the
repayment of the principal hereof, the calculation and payment of interest on
the principal amount hereof, the prepayment of the principal amount hereof and
the acceleration of the maturity hereof. The terms, covenants, and provisions of
the Loan Agreement are incorporated herein by reference as if set forth in full
herein.
The obligations of Borrower under this Note and the Loan
Agreement are, or will be, secured by certain assets of Borrower pursuant to the
terms and conditions of the Loan Agreement and the Collateral Documents referred
to in the Loan Agreement, including certain Mortgages relating to certain
Mortgaged Property referred to in the Loan Agreement.
This Note and the obligations of Borrower under this Note
shall be governed by, and construed and interpreted in accordance with, the laws
of the State of New York, without regard to the conflict-of-law provisions
thereof.
__________________________________
By:_______________________________
Name: _________________________
Title: ________________________
51
NOTARY
52
EXHIBIT B
Form of Mortgage
B-1
53
This instrument was prepared by
the attorney below and, when
recorded, the recorded counterpart
should be returned to:
Harvey R. Uris, Esq.
Skadden Arps Slate Meager & Flom
919 Third Avenue
New York, New York 10022
================================================================================
BLANKET DEED OF TRUST, [DEED TO SECURE DEBT],
INDENTURE OF MORTGAGE AND FIXTURE FILING
dated as of __________, 1997
by
The parties listed on Schedule I hereto
Grantor,
[__________________],
Beneficiary
and
[__________________],
Trustee
Property:
______________________________
[County of _____________]
State of______________
================================================================================
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS. [AS MORE FULLY
PROVIDED IN SECTION 1.3, THE MAXIMUM PRINCIPAL IN-DEBTEDNESS THAT UNDER ANY
CONTINGENCY MAY BE SECURED BY THIS INDENTURE IS $ __________].
54
TABLE OF CONTENTS
PAGE
----
PREAMBLE.................................................................... 1
RECITALS ................................................................... 1
GRANTING CLAUSES............................................................ 2
GRANTING CLAUSE I........................................................... 2
GRANTING CLAUSE II.......................................................... 2
GRANTING CLAUSE III......................................................... 2
GRANTING CLAUSE IV.......................................................... 3
GRANTING CLAUSE V........................................................... 3
GRANTING CLAUSE VI.......................................................... 4
GRANTING CLAUSE VII......................................................... 4
GRANTING CLAUSE VIII........................................................ 4
GRANTING CLAUSE IX.......................................................... 4
ARTICLE I
DEFINITIONS, INTERPRETATION AND SECURED LOAN AMOUNT
SECTION 1.1. Definitions................................................. 6
SECTION 1.2. Interpretation.............................................. 6
SECTION 1.3. Limitation on Secured Loan Amount. ......................... 7
ARTICLE II
CERTAIN WARRANTIES AND COVENANTS OF GRANTOR
SECTION 2.1. Title....................................................... 8
SECTION 2.2. Secured Obligations......................................... 9
i
55
PAGE
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SECTION 2.3. Status and Care of the Property; Zoning
and Subdivision Changes.................................. 9
ARTICLE III
CASUALTY AND CONDEMNATION
SECTION 3.1. Casualty and Condemnation................................... 11
SECTION 3.2. Insurance Claims and Proceeds, Condemnation Awards.......... 12
ARTICLE IV
CERTAIN SECURED OBLIGATIONS
SECTION 4.1. Changes in the Laws Regarding Taxation...................... 13
ARTICLE V
DEFAULTS, REMEDIES AND RIGHTS
SECTION 5.1. Events of Default........................................... 14
SECTION 5.2. Remedies.................................................... 14
SECTION 5.3. Waivers by Grantor.......................................... 17
SECTION 5.4. Jurisdiction and Process.................................... 18
SECTION 5.5. Sales....................................................... 18
SECTION 5.6. Proceeds.................................................... 20
SECTION 5.7. [Reserved].................................................. 21
SECTION 5.8. Dealing With the Mortgaged Property......................... 21
SECTION 5.9. Right of Entry.............................................. 21
SECTION 5.10. Right to Perform Obligations................................ 22
SECTION 5.11. Agents...................................................... 22
SECTION 5.12. [RESERVED].................................................. 22
SECTION 5.13. Assignment of Agreements and Permits........................ 22
ii
56
PAGE
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ARTICLE Vl
FIXTURE FILING
SECTION 6.1. Security Interest and Fixture Filing........................ 23
SECTION 6.2. Limitation on Security Interest in Timber................... 24
SECTION 6.3. Executive Office............................................ 24
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Release of Mortgaged Property............................... 24
SECTION 7.2. Notices..................................................... 25
SECTION 7.3. Trustee..................................................... 25
SECTION 7.4. Amendments in Writing....................................... 27
SECTION 7.5 Severability.................................................27
SECTION 7.6. Binding Effect.............................................. 27
SECTION 7.7. WAIVER OF JURY TRIAL........................................ 28
SECTION 7.8. GOVERNING LAW............................................... 28
SECTION 7.9. JURISDICTION................................................ 28
SECTION 7.10. Counterparts: Integration................................... 28
SECTION 7.11. Consents by Beneficiary..................................... 28
ARTICLE VIII
STATE SPECIFIC PROVISIONS
SECTION 8.1. Incorporation by Reference ................................. 29
EXHIBIT A[1] Legal Description
EXHIBIT B Trustee Name and Address
EXHIBIT C State Specific Provisions
SCHEDULE 1 Grantors
SCHEDULE 2 Mortgage States
SCHEDULE 3 Trust States
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BLANKET DEED OF TRUST, [DEED TO SECURE DEBT], INDENTURE OF
MORTGAGE AND FIXTURE FILING (this "Indenture") dated as of __________, 1997 by
the parties listed on Schedule 1 (collectively and individually, as the case may
be, "Grantor") as mortgagor of interests in real property under this indenture
as a mortgage, if the real property encumbered hereby is located in one of the
States listed on Schedule 2 attached hereto (the "Mortgaged States"), as trustor
of the trusts hereinafter created under this Indenture as a deed of trust if the
property encumbered hereby is located in one of the States listed on Schedule 3
attached hereto (the "Trust States"), in favor of [__________], a [Delaware]
corporation, having an address at [c/o ____________________] (together with its
successors and assigns, the "Beneficiary"), as mortgagee of interests under this
Indenture as a mortgage in the Mortgaged States, as beneficiary of the trusts
hereinafter created under this Indenture as a deed of trust in the Trust States,
the person or persons or entity identified as "Trustee" on the cover page hereof
(herein together with his or its successors and assigns, the "Trustee").
W I T N E S S E T H:
RECITALS
A. Loan. Grantor is the owner of the fee simple interest in
the real property described in Exhibit A, annexed hereto. On __________, 1997
(the "Closing Date"), Beneficiary made a loan (the "Loan") to the Grantor in the
original principal amount of $[__________] pursuant to that certain Loan
Agreement (as amended, supplemented or otherwise modified from time to time, the
"Loan Agreement") dated as of the Closing Date, between Grantor and Beneficiary,
which Loan is evidenced by a certain promissory note, dated as of the Closing
Date (as amended, modified, supplemented or replaced, the "Note").
B. Indenture. This Indenture constitutes a deed of trust,
mortgage and fixture filing encumbering the Mortgaged Property, and the Lien of
this Indenture is being granted to secure the payment, performance and
observance of the Secured Obligations (it being understood that except to the
extent the Lien of this Indenture is limited to the Secured Loan Amount as set
forth on the Cover Page hereof and in Section 1.3 hereof, each of the Individual
Properties secures repayment of the full amount of the Secured Obligations):
(i) (a) all principal of and interest (including any
interest which accrues after the commencement of any case,
proceeding or other action relating to the bankruptcy,
insolvency or reorganization of Grantor) on the Note, and (b)
all other amounts payable by Grantor hereunder or under any
other Loan Document; and
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(ii) the performance and observance of each other
term, covenant, agreement, obligations, requirement, condition
and provision to be performed or observed by Grantor hereunder
or any other Loan Document.
C. The scheduled Maturity Date of the latest to mature of the
Secured Obligations is ____________________, 2027.
GRANTING CLAUSES
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, for the purpose of securing the due and punctual payment,
performance and observance of the Secured Obligations and intending to be
legally bound hereby, Grantor does hereby WARRANT, GRANT, BARGAIN, SELL, CONVEY,
ASSIGN, PLEDGE, TRANSFER AND SET OVER unto Beneficiary, with all POWERS OF SALE,
ASSENTS, RIGHTS OF ENTRY AND POSSESSION, AND STATUTORY RIGHTS AND COVENANTS in
the State where the applicable Individual Property is located, and (to the
extent covered by the UCC) does hereby GRANT AND WARRANT to Beneficiary a
continuing security interest in, all estate, right, title and interest of
Grantor in, to, under or derived from, all of the Grantor's property and rights
described in the following Granting Clauses (all of which property and rights
are collectively called the "Mortgaged Property" and such property and rights
with respect to any one parcel of Land and the Improvements thereon (as such
terms are defined below) is hereinafter referred to as an "Individual
Property"), to wit:
GRANTING CLAUSE I.
Land. The parcel or parcels of land more particularly
described in Exhibits A-1 through A-[_____ ] (the " Land").
GRANTING CLAUSE II.
Timber. All standing timber now or hereafter located on the
Land (the "Timber").
GRANTING CLAUSE III.
Improvements. All buildings, structures, facilities and other
improvements of every kind and description now or hereafter located on the Land
and owned by Grantor, including all parking areas, roads, driveways, walks,
fences, walls and beams; all drainage and lighting facilities and other site
improvements; all water, sanitary and storm sewer, drainage, electricity, steam,
gas, telephone, telecommunications and other utility equipment
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and facilities; all plumbing, lighting, heating, ventilating, air-conditioning,
refrigerating, incinerating, compacting, fire protection and sprinkler,
surveillance and security, vacuum cleaning, public address systems; all walls,
floor coverings, partitions, elevators, escalators, motors, electrical, and
communications wiring, machinery, pipes, fittings; and all other items of
fixtures (collectively, the "Fixtures"), (provided that, to the extent any vault
or similar improvement shall constitute a Fixture, the contents of any such
vault or similar improvement are specifically excluded from the grant hereby
made), in each case now or hereafter located on the Land or affixed to the
Improvements which by the nature of their location thereon or affixation thereto
are real property under Applicable Law (all of the foregoing, including the
Fixtures, being collectively called the "Improvements").
GRANTING CLAUSE IV.
Appurtenant Rights. All tenements, hereditaments and appurtenances now
or hereafter relating to the Mortgaged Property; the streets, roads, sidewalks
and alleys abutting the Land; all strips and gores within or adjoining the Land;
all land in the bed of any body of water adjacent to the Land; all air space and
rights to use air space above the Land; all development or similar rights now or
hereafter appurtenant to the Land; all rights of ingress and egress now or
hereafter appertaining to the Land; all easements and rights of way now or
hereafter appertaining to the Land; and all royalties and other rights now or
hereafter appertaining to the use and enjoyment of the Mortgaged Property
(provided that, "royalties", as aforesaid, shall not include royalties or
similar rights derived from the business conducted at the Mortgaged Property),
including alley, party walls, support, drainage, crop, timber, agricultural,
horticultural, oil, gas and other mineral, water stock, riparian and other water
rights.
GRANTING CLAUSE V.
Agreements. To the extent assignable, as to any Individual Property or
the streets, sidewalks, vaults, vault spaces, curbs or gutters adjoining such
Mortgaged Property, or the appurtenances to such Individual Property, or the
franchises and privileges connected with or in respect of Land or the
Improvements that constitute real property (collectively, the "Appurtenant
Property"), all leases and subleases, restrictive covenants, deed restrictions
and easements (including any applicable Permitted Encumbrances and Permitted
Easements), all insurance policies (including all unearned premiums and
dividends thereunder), all guarantees and warranties, all supply and service
contracts for water, sanitary and storm sewer, drainage, electricity, steam,
gas, telephone or other utilities and all other documents, agreements and
instruments, in all of such cases now or hereafter relating to any Individual
Property and all other contract rights, now or hereafter relating to the use or
operation of any Individual Property together with any and all amendments,
supplements, consolidations, replacements, extensions, renewals and other
modifications of any thereof, exclusive of contracts related to the business
conducted at the Mortgaged Property, to the extent not
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constituting contracts in respect of real property interests (the foregoing
being collectively called the "Agreements").
GRANTING CLAUSE VI.
Permits. To the extent assignable, all licenses (other than
Grantor's rights under any lease or license arrangement with an Affiliate of
Grantor or Parent), authorizations, certificates, variances, concessions,
grants, franchises, consents, approvals and other permits now or hereafter
pertaining and necessary to the ownership or operation of the Land or the
Improvements (the foregoing being collectively called the "Permits ").
GRANTING CLAUSE VII.
Proceeds and Awards. Subject to the provisions of Article III,
all Insurance Proceeds and Awards, including any amounts held by a Depositary
pursuant to Section 3.2(c) and including any unearned premiums, and title
insurance proceeds under any title insurance policy now or hereafter held by
Grantor, and all rights and other claims of any kind whatsoever (including
damage, secured, unsecured, priority and bankruptcy claims) now or hereafter
relating to any of the Mortgaged Property, all of which Grantor hereby
irrevocably directs be paid to Beneficiary to the extent provided hereunder, to
be held, applied and disbursed as provided in this Indenture.
GRANTING CLAUSE VIII.
Books and Records. All books and records of Grantor now or
hereafter pertaining and necessary to the ownership or operation of the
Mortgaged Property.
GRANTING CLAUSE IX.
Additional Property. All greater, additional or other estate,
right, title and interest of Grantor in, to, under or derived from the Mortgaged
Property now or hereafter acquired by Grantor which constitutes a real property
interest or right, including all extensions, improvements, betterments,
renewals, substitutions and replacements of, and additions and appurtenances to,
any of the Mortgaged Property hereafter acquired by or released to Grantor or
constructed or located on, or affixed to, the Mortgaged Property, in each case,
immediately upon such acquisition, release, construction, location or
affixation, to the extent any of the foregoing constitutes a real property
interest or right, required to be subjected to the Lien hereof and all other
property and rights which are by any instrument or otherwise subjected to the
Lien hereof by Grantor or anyone acting on its behalf.
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EXCLUDING HOWEVER, from the Mortgaged Property, the Lien
hereof and the foregoing assignments, pledges and grants of security interests,
all of Grantor's right, title and interest in and to any of the following
property (such property being collectively called the "Excluded Property"): (i)
any mineral resources (including coal) located beneath the surface of the Land
and (ii) any Permits or Agreements if, but only to the extent that, Grantor is
expressly prohibited thereunder or under any Applicable Law from granting a Lien
or security interest therein or any thereof or Applicable Law provides for a
default thereunder or the termination or forfeiture thereof in the event a Lien
or security interest is granted therein without the consent of the appropriate
Governmental Authority or other Person; provided that this provision does not
limit any of Borrower's representations under Section 4.1 of the Loan Agreement
and provided further that Grantor shall use reasonable efforts promptly to
obtain any such consent or the waiver or termination of any such prohibition or
condition requiring such consent and, upon obtaining the same, shall promptly
notify Beneficiary; and provided further that if any such consent is obtained or
any such prohibition or condition requiring such consent is waived, terminated
or eliminated to the extent sufficient to permit any Excluded Property to become
Mortgaged Property hereunder, to the fullest extent permitted under the
applicable Permit or Agreement or under Applicable Law, such Excluded Property
under clause (2) above only shall automatically be deemed to be included in the
Mortgaged Property hereunder; and provided further that if any such prohibition
or condition requiring such consent relates only to the foreclosure of a Lien or
security interest or the exercise of other rights or remedies upon a default but
not to the granting of a Lien or security interest, then the relevant Excluded
Property under clause (2) above only nevertheless shall be deemed included in
the Mortgaged Property but subject to the condition that the relevant consent
must be obtained prior to foreclosure or the exercise of any other rights or
remedies hereunder with respect to such Excluded Property. Nothing contained
herein shall be deemed to grant any interest in the business conducted upon the
Land or within or upon the Improvements and in no event shall Beneficiary or
Trustee be deemed to have any interest in any copyrights, trademarks,
servicemarks, logos or other intellectual property owned or licensed to or by
Grantor or any of its affiliates.
TO HAVE AND TO HOLD the Mortgaged Property, together with all
estate, right, title and interest of Grantor in, to, under or derived from the
Mortgaged Property, with all the privileges and appurtenances to the same
belonging, and with the possession and right of possession thereof,
SUBJECT, HOWEVER, to the Permitted Encumbrances.
WITH MORTGAGE COVENANTS and with all POWERS OF SALE, STATUTORY
POWERS OF SALE and other STATUTORY RIGHTS AND COVENANTS and upon the STATUTORY
CONDITIONS in the subject Mortgage State,
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UNTO Beneficiary, as mortgagee, and its successors and assigns
forever, subject to the terms hereof, forever, the Mortgaged Property if the
same is located in one of the Mortgage States;
OR
UNTO the Trustee, as trustee for the benefit of Beneficiary,
to the successors of said trustee in the trust created by this Indenture, and to
its or their respective successors and assigns forever, in trust, with POWER OF
SALE, the Mortgaged Property if the same is located in one of the Trust States;
TO HAVE AND TO HOLD the Mortgaged Property, with all the
privileges and appurtenances to the same belonging, and with the possession and
right of possession thereof, unto the Trustee for the benefit of Beneficiary, to
its and their successors in the trust created by this Indenture, and to its and
their respective assigns forever, in trust, however, upon the terms and
conditions set forth herein.
PROVIDED ALWAYS that this Indenture is upon the express
condition that the Mortgaged Property shall be released from the Lien of this
Indenture in full or in part in the manner and at the time provided in Section
7.1.
GRANTOR ADDITIONALLY COVENANTS AND AGREES WITH BENEFICIARY AS
FOLLOWS:
ARTICLE I
DEFINITIONS, INTERPRETATION AND SECURED LOAN AMOUNT
SECTION 1.1. Definitions. As used in this Indenture unless
otherwise specified, capitalized terms used but not defined herein have the
meanings assigned to them in the Loan Agreement.
SECTION 1.2. Interpretation. (a) In this Indenture, unless
otherwise specified, (i) singular words include the plural and plural words
include the singular; (ii) words which include a number of constituent parts,
things or elements, including the terms Secured Obligations, Mortgaged Property,
Land, Improvements, Property, Permits, Agreements, Leases and Rents shall be
construed as referring separately to each constituent part, thing or element
thereof, as well as to all of such constituent parts, things or elements as a
whole; (iii) words importing any gender include the other gender; (iv)
references to any Person include such Person's successors and assigns and in the
case of a natural Person, the word "successors" includes such Person's heirs,
devisees, legatees, executors, administrators
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and personal representatives; (v) references to any statute or other law include
all applicable rules, regulations and orders adopted or made thereunder and all
statutes or other laws amending, consolidating or replacing the statute or law
referred to; (vi) the words "consent," "approve," "agree" and "request," and
derivations thereof or words of similar import, mean the prior written consent,
approval, agreement or request of the Person in question; (vii) the words
"include" and "including," and words of similar import, shall be deemed to be
followed by the words "without limitation"; (viii) the words "hereto," "herein,"
"hereof" and "hereunder," and words of similar import, refer to this Indenture
in its entirety; (ix) references to Articles, Sections, Schedules or Exhibits
are to the Articles, Sections, Schedules and Exhibits of this Indenture; (x) the
Schedules and Exhibits to this Indenture are incorporated herein by reference;
(xi) the titles and headings of Articles, Sections, Schedules, Exhibits,
subsections, paragraphs and clauses are inserted as a matter of convenience and
shall not affect the construction of this Indenture; (xii) all obligations of
Grantor hereunder shall be satisfied by Grantor at Grantor's sole cost and
expense; (xiii) all rights and powers granted to Trustee or Beneficiary
hereunder shall be deemed to be coupled with an interest and be irrevocable
(subject to the provisions hereof; including Section 7.1) and (xiv) references
to this Indenture, any other Loan Agreement, the Permits, Agreements or Leases
include all amendments, supplements, consolidations, replacements, restatements,
extensions, renewals and other modifications thereof in whole or in part.
(b) Grantor acknowledges that it was represented by
counsel in connection with this Indenture, that it and its counsel reviewed and
participated in the preparation and negotiation of this Indenture and that any
rule of construction to the effect that ambiguities are to be resolved against
the drafting party, Trustee or Beneficiary shall not be employed in the
interpretation of this Indenture.
SECTION 1.3. Limitation on Secured Loan Amount.
Notwithstanding anything to the contrary contained herein or in any other Loan
Document, the maximum amount secured or which by any contingency may be secured
by this Indenture (the "Secured Loan Amount") is [$__________ ][plus interest as
provided in the Note and any amounts which may be advanced by Beneficiary to
protect the Mortgaged Property or Beneficiary's interest therein, including, but
not limited to, (a) taxes, charges or assessments which may be imposed by
Applicable Law upon the Mortgaged Property; (b) premiums on insurance policies
covering the Mortgaged Property; and (c) expenses incurred in upholding the lien
of this Indenture, including but not limited to, (1) the expenses of any
litigation to prosecute or defend the rights and lien created by this Indenture
and (2) any amount, cost or charge to which Beneficiary becomes subrogated, upon
payment, whether under recognized principles of law or equity, or under express
statutory authority.]
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ARTICLE II
CERTAIN WARRANTIES AND COVENANTS OF GRANTOR
SECTION 2.1. Title. (a) Grantor represents and warrants that,
as of the date hereof, (i) Grantor has good, marketable and valid record title
to and is lawfully seized of an indefeasible estate in fee simple in the Land
and the Improvements, in each case, free and clear of all Liens, encumbrances
and other exceptions in and to such title except Permitted Liens and Permitted
Encumbrances and (ii) this Indenture constitutes a valid, binding, enforceable
obligation of Grantor and, upon recordation (to the extent provided under the
Loan Agreement), will constitute a perfected mortgage Lien on the Mortgaged
Property free and clear of all Liens, encumbrances and claims except Permitted
Liens and Permitted Encumbrances.
(b) Grantor shall until the Loan is repaid or deemed
repaid in full in accordance with the provisions of the Loan Agreement preserve,
protect, warrant and defend (A) the estate, right, title and interest of Grantor
in and to the Mortgaged Property; (B) the validity and enforceability of the
Lien of this Indenture on the Mortgaged Property; and (C) the right, title and
interest of Trustee or Beneficiary and any purchaser at any sale of the
Mortgaged Property hereunder or relating hereto, in each case against all Liens
and claims whatsoever, except Permitted Liens and Permitted Encumbrances.
(c) Grantor, at its sole cost and expense, shall (i)
promptly correct any defect or error which may be discovered in this Indenture
or other document relating thereto; and (ii) promptly execute, acknowledge and
deliver, and, to the extent required under the Loan Agreement, record and
re-record, register and re-register and file and refile this Indenture and any
financing statements or other documents which Beneficiary may reasonably require
from time to time (all in form and substance reasonably satisfactory to
Beneficiary) in order (A) to effectuate, complete, perfect, continue or preserve
the Lien of this Indenture on the Mortgaged Property, whether now owned or
hereafter acquired, subject only to Permitted Liens, or (B) to effectuate,
complete, perfect, continue or preserve any right, power or privilege granted or
intended to be granted to Trustee or Beneficiary hereunder or otherwise
accomplish the purposes of this Indenture.
(d) Nothing herein shall be construed to subordinate the
Lien of this Indenture to any Permitted Lien to which the Lien of this Indenture
is not otherwise subordinate. Grantor shall pay within five (5) Business Days
after receiving a request therefor, the reasonable costs of, or incidental to,
any recording or filing (to the extent required under the Loan Agreement) of any
financing or continuation statement, or amendment thereto, to the extent
permitted or required under the Loan Agreement, concerning the Mortgaged
Property.
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SECTION 2.2. Secured Obligations. Grantor shall duly and
punctually pay, perform and observe the Secured Obligations in accordance with
the terms and provisions of the Loan Documents.
SECTION 2.3. Status and Care of the Property: Zoning and
Subdivision Changes. (a) Subject to the provisions of paragraph (b) below,
Grantor shall, at its cost and expense, keep and maintain the Mortgaged Property
in as safe condition as on the date of this Indenture (as reasonably determined
by Grantor) and in such repair and condition, ordinary wear and tear excepted,
as is necessary to prevent a Material Adverse Effect from occurring, and make
any structural and non-structural repairs and replacements which may be required
to be made upon or in connection with the Mortgaged Property in order to keep
the same in such condition.
(b) Grantor may make additions or improvements to the
Mortgaged Property with the consent of the Beneficiary, which consent shall not
be unreasonably withheld, delayed or conditioned. The foregoing to the contrary
notwithstanding, if Grantor complies with the requirements of clauses (i) - (v)
of this Section 2.3(b) and, if applicable, with Section 2.3(d), Grantor may,
without the consent of Beneficiary, at Grantor's own cost and expense, make
additions, improvements or alterations to the Mortgaged Property, including (A)
the construction of new Improvements and (B) the demolition of existing
Improvements (1) for the purpose of constructing new improvements, (2) to the
extent the continued use or operation of such existing Improvements is, as
reasonably determined by Grantor, no longer economically practicable in
furthering the business purposes of the Grantor or (3) in the ordinary course of
Grantor's business (such structural or nonstructural additions, improvements or
alterations and any such demolition in connection therewith are referred to as
"Alterations"):
(i) No Alterations shall adversely affect the structural
stability or integrity of the Improvements intended by Grantor to be
permanent structures;
(ii) No Alterations, upon completion of such Alterations
(including any demolition in connection therewith), shall reduce the
Fair Market Value of the Mortgaged Property if such reduction could
reasonably be expected to result in a Material Adverse Effect;
(iii) No Alterations shall violate, contravene or
interfere with any Permitted Encumbrance or Legal Requirement if such
violation, contravention or interference would cause a Material Adverse
Effect;
(iv) All Governmental Action required in connection with
each phase of the Alterations shall be obtained when required in
connection with such phase (and Beneficiary shall, at Grantor's
expense, join in the application
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for any such Governmental Action and execute and deliver any document
required by Applicable Laws in connection therewith, whenever such
joinder is necessary); and
(v) The making of any Alterations shall be performed in a
good and workmanlike manner and shall be completed in compliance with
all applicable Legal Requirements and any applicable Insurance
Requirements.
Notwithstanding the foregoing, if a Material Event of Default
shall have occurred and be continuing, Grantor shall not commence or continue
making any such Alteration without obtaining the prior written consent of
Beneficiary.
(c) [Reserved]
(d) Notwithstanding the restrictions set forth in paragraph
(ii) of Section 2.3(b) above, Grantor shall have the right, without the consent
of Beneficiary, to make Alterations which result in a Material Adverse Effect,
if, prior to the commencement of such Alterations, Grantor provides to
Beneficiary Substitute Property having a Fair Market Value equal to the
diminution in value (as reasonably estimated by Grantor) causing such Material
Adverse Effect and otherwise reasonably satisfactory to Beneficiary and in a
form that is reasonably satisfactory to Beneficiary and will not affect the
ability of Beneficiary to qualify as a REIT; provided, however, that such
Substitute Property shall consist of real property or interests therein and
Grantor shall provide to Beneficiary the applicable due diligence materials
described in Section 7.7 of the Loan Agreement with respect to such Substitute
Property. Grantor shall deliver to Beneficiary a certificate of an authorized
officer of Grantor with respect to any Alteration which Grantor reasonably
believes will cause a Material Adverse Effect. Such certificate shall describe
the proposed Alteration in reasonable detail and include an estimate of the
amount that the Fair Market Value will be reduced and an estimate of the
aggregate loan-to-value ratio (giving effect to the completion of the proposed
Alteration).
(e) Grantor, within thirty (30) days after obtaining actual
knowledge of any proposed change in the zoning that is likely to result in a
Material Adverse Effect, shall provide written notice to Beneficiary of any such
change and shall diligently contest the same, if the failure to so contest would
result in a Material Adverse Effect, in the manner described in Section 5.9 of
the Loan Agreement; provided, however, Grantor may abstain from contesting such
action if, prior to the expiration of the time within which a contest must be
commenced expires, Grantor shall provide to Beneficiary, in accordance with the
requirements set forth in Section 2.3(d), Substitute Property having a Fair
Market Value equal to the diminution in value (as reasonably estimated by
Grantor) causing such Material Adverse Effect. Without the prior written consent
of Beneficiary, which consent may be withheld in Beneficiary's sole and absolute
discretion, Grantor shall not execute or file any
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subdivision or other plat or map or seek any variance (or any change in any
variance) of the zoning if such action shall result in a Material Adverse
Effect; provided, however, Grantor may take such actions if a reduction in the
Fair Market Value of the Property would cause a Material Adverse Effect if,
prior to taking any such actions, Grantor shall, in accordance with the
requirements set forth in Section 2.3(d), provide to Beneficiary Substitute
Property having a Fair Market Value equal to the diminution of value (as
reasonably estimated by Grantor) causing such Material Adverse Effect.
(f) Grantor shall deliver to Beneficiary a certificate of an
authorized officer of Grantor with respect to any proposal to execute or deliver
any subdivision or other plat or map or proposal or any variance or change in
variance in the zoning which Grantor reasonably believes will materially reduce
the Fair Market Value of the Mortgaged Property and/or cause a Material Adverse
Effect. Such certificate shall describe the proposal in reasonable detail and
include an estimate of the amount that the Fair Market Value of such Mortgaged
Property will be reduced and an estimate of the aggregate loan-to-value ratio
(giving effect to the completion of the actions proposed to be taken by
Grantor).
ARTICLE III
CASUALTY AND CONDEMNATION
SECTION 3.1. Casualty and Condemnation. (a) Grantor represents
and warrants that, as of the date hereof, (i) there is no Material Casualty or
Material Condemnation, (ii) there are no negotiations or proceedings which might
result in a Material Condemnation and (iii) to the actual knowledge of Grantor,
no Material Condemnation is proposed or threatened.
(b) Promptly after Grantor acquires actual knowledge of
the occurrence of a Material Casualty or of any threat or pendency of a Material
Condemnation, Grantor shall give Beneficiary notice thereof. If any Material
Casualty occurs, Grantor shall immediately take such action as may reasonably be
necessary or appropriate to preserve the undamaged portion of the applicable
Individual Property and to protect against personal injury or property damage.
(c) Subject to Grantor's rights under the Loan Agreement,
if any Material Casualty or Material Condemnation occurs, Grantor shall, to the
extent necessary to prevent a Material Adverse Effect from occurring only,
promptly commence and diligently pursue to completion the Restoration of the
applicable Individual Property, subject to Unavoidable Delays provided that any
such required Restoration commenced by Grantor shall be effected with due
diligence, in a good and workmanlike manner, and in compliance with
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Section 2.3, and all applicable Legal Requirements and any Insurance
Requirements. The foregoing to the contrary notwithstanding, Grantor shall not
be required to undertake any Restoration necessary to prevent a Material Adverse
Effect from occurring provided Grantor delivers to Beneficiary Substitute
Property having a Fair Market Value equal to the diminution in value (as
reasonably estimated by Grantor) causing such Material Adverse Effect.
SECTION 3.2. Insurance Claims and Proceeds, Condemnation
Awards. (a) It any Material Casualty occurs, subject to Section 3.2(c), and if
Grantor is not then self-insuring against any resulting loss, (i) Grantor shall
promptly make proof of loss under the applicable insurance policies and
diligently pursue to conclusion its claim for the Insurance Proceeds payable
thereunder and any suit, action or other proceeding necessary or appropriate to
obtain payment of such Insurance Proceeds and (ii) the Net Award arising from
any such Insurance Proceeds shall be applied as provided for herein or in the
Loan Agreement. Subject to the provisions of the Loan Agreement, any such Net
Award received by Grantor shall be held in trust by Grantor for and as the
property of the Depositary (as hereinafter defined) and the Beneficiary and
shall not be commingled with any other funds or property of Grantor.
(b) If any Condemnation occurs, or if any negotiation or
proceeding is commenced which might result in a Condemnation, or if any
Condemnation is proposed or threatened, subject to Section 3.2(c), Grantor
shall, promptly after receiving notice or obtaining knowledge thereof, do all
things deemed necessary or appropriate by Grantor to preserve Grantor's interest
in such Individual Property, promptly make claim to the Awards payable with
respect thereto and diligently pursue to conclusion such claim for such Awards,
if the failure to take the aforesaid actions would cause a Material Adverse
Effect. Subject to Grantor's rights set forth in Section 2.6 and Section 2.7 of
the Loan Agreement, Net Awards with respect to any Condemnation shall be applied
as provided to herein. Subject to the provisions of the Loan Agreement, any such
Net Awards received by Grantor shall be held in trust by Grantor for and as the
property of Beneficiary and shall not be commingled with any other funds or
property of Grantor.
(c) In the event of any loss as a result of a Material
Casualty or Material Condemnation, (i) if a Material Event of Default has
occurred and is continuing either at the time such Loss occurs or at the time
any Awards or Insurance Proceeds are received (or would be payable but for the
fact that Grantor is self insuring), (A) Grantor shall have no right to settle,
and shall not settle, any claim or proceeding relating to such Loss or the
proceeds relating thereto without the consent of Beneficiary, not to be
unreasonably withheld or delayed, (B) Beneficiary shall be entitled to
participate in Grantor's exercise of or, if the Consent required under the
foregoing clause (A) is not given, exercise, such settlement rights (and Grantor
shall, upon demand thereof or by Beneficiary, reimburse Beneficiary for the
reasonable cost incurred by Beneficiary in exercising such rights), and
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(C) Beneficiary shall have the right, if the Net Awards in respect of a Material
Casualty or Material Condemnation, to require that such proceeds be deposited
with a bank, trust company or other institution (the "Depositary") selected by
Grantor and reasonably acceptable to Beneficiary and be applied towards the
repayment of the Loan or disbursed in connection with Restoration as provided in
Section 3.2(d), at Lender's discretion; and (ii) if no Material Event of Default
has occurred and is then continuing, (A) Grantor shall not have to obtain the
consent of Beneficiary to settle any claim for such proceeds and (B) the Net
Awards are in respect of a Material Casualty or Material Condemnation shall be
used by Grantor, at its election, but only to the extent necessary to prevent a
Material Adverse Effect from occurring, to pay the cost of Restoration of the
Mortgaged Property or to apply such proceeds towards the repayment of the Loan
in accordance with the terms of the Loan Agreement.
(d) If proceeds are deposited with the Depositary pursuant
to Section 3.2(c), the Depositary shall, and is hereby directed to, place such
proceeds into an interest-bearing account of the Depository designated by
Grantor and any interest earned on such proceeds shall be added to the funds
already on deposit. Upon the completion of the Restoration, any remaining
proceeds shall be paid to Grantor or Beneficiary as provided in the Loan
Agreement.
ARTICLE IV
CERTAIN SECURED OBLIGATIONS
SECTION 4.1. Changes in the Laws Regarding Taxation. If, after
the date hereof, there shall be enacted any Applicable Law deducting from the
value of the Mortgaged Property for the purpose of taxation the Lien of any
Collateral Document or changing in any way the Applicable Law for the taxation
of mortgages, deeds of trust or other Liens or Loans or other obligations
secured thereby, or of any interest of Beneficiary in the Mortgaged Property, or
the manner of collection of such taxes, so as to adversely affect this Indenture
or the Secured Obligations, then upon demand by Beneficiary, Grantor shall pay
all taxes, assessments or other charges resulting therefrom unless Grantor shall
not, under Applicable Law, be permitted to pay such taxes, assessments or other
charges, in which case Beneficiary shall be entitled to declare the Secured
Obligations immediately due and payable.
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ARTICLE V
DEFAULTS, REMEDIES AND RIGHTS
SECTION 5.1. Events of Default. Any Event of Default under the
Loan Agreement shall constitute an "Event of Default" hereunder. All notice and
cure periods provided in the Loan Agreement and the other Loan Documents shall
run concurrently with any notice or cure periods provided under Applicable Law.
SECTION 5.2. Remedies. (a) Upon the occurrence and continuance
of an Event of Default but subject to the last paragraph of Section 6.1 of the
Loan Agreement, Beneficiary shall have the right and power to exercise any of
the following remedies and rights, subject to mandatory provisions of Applicable
Law, to wit:
(i) to institute a proceeding or proceedings, by
advertisement, judicial process or otherwise as provided under
Applicable Law, for the complete or partial foreclosure of this
Indenture or the complete or partial sale of the Mortgaged Property
under the power of sale hereunder or under any provision of Applicable
Law; or
(ii) to sell the Mortgaged Property, and all estate,
right, title, interest, claim and demand of Grantor therein and
thereto, and all rights of redemption thereof, at one or more sales, as
an entirety or in parcels, with such elements of real or personal
property, at such time and place and upon such terms as Beneficiary,
(acting through Trustee, if applicable) may deem expedient or as may be
required under Applicable Law, and in the event of a sale hereunder or
under any Applicable Law of less than all of the Mortgaged Property,
this Indenture shall continue as a Lien on the remaining Mortgaged
Property; or
(iii) to institute a suit, action or proceeding for the
specific performance of any of the provisions of this Indenture; or
(iv) to be entitled to the appointment of a receiver,
supervisor, trustee, liquidator, conservator or other custodian (a
"Receiver") of the Mortgaged Property to the fullest extent permitted
by Applicable Law, as a matter of right and without regard to, or the
necessity to disprove, the adequacy of the security for the Secured
Obligations or the solvency of Grantor, and Grantor hereby, to the
fullest extent permitted by Applicable Law, irrevocably waives such
necessity and consents to such appointment, said appointee to be vested
with the fullest powers permitted under Applicable Law, including to
the extent permitted under Applicable Law those under clause (v) of
this subsection (a); or
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(v) to enter upon any of the Mortgaged Property, by
Beneficiary, Trustee or a Receiver (whichever is the Person exercising
the rights under this clause), and, to the extent permitted by
Applicable Law, exclude Grantor and its managers, employees,
contractors, agents and other representatives therefrom in accordance
with Applicable Law, without liability for trespass, damages or
otherwise, and take possession of the Mortgaged Property and all books,
records and accounts relating thereto, and upon demand Grantor shall
surrender possession of the Mortgaged Property and such books, records
and accounts to the Person exercising the rights under this clause; and
having and holding the same, the Person exercising the rights under
this clause may use, operate, manage, preserve, control and otherwise
deal therewith and conduct the business thereof, either personally or
by its managers, employees, contractors, agents or other
representatives, without interference from Grantor or its managers,
employees, contractors, agents and other representatives; and, upon
each such entry and from time to time thereafter, at the expense of
Grantor and the Mortgaged Property, without interference by Grantor or
its managers, employees, contractors, agents and other representatives,
the Person exercising the rights under this clause may, as such Person
deems expedient, (A) insure or reinsure the Mortgaged Property, (B)
make all necessary or proper repairs, renewals, replacements,
alterations, additions, Restorations, betterments and improvements to
the Mortgaged Property and (C) in such Person's own name or, at the
option of such Person, in Grantor's name as attorney-in-fact, exercise
all rights, powers and privileges of Grantor with respect to the
Mortgaged Property, including the right to enter into leases with
respect to the Mortgaged Property, including leases extending beyond
the time of possession by the Person exercising the rights under this
clause; and the Person exercising the rights under this clause shall
not be liable to account for any action taken hereunder, other than for
rents actually received by such Person, and shall not be liable for any
loss sustained by Grantor resulting from any failure to let the
Property or from any other act or omission of such Person, except to
the extent such loss is caused by such Person's own willful misconduct
or gross negligence; or
(vi) with or, to the fullest extent permitted by
Applicable Law, without entry upon the Mortgaged Property, in the name
of Beneficiary, the Trustee or a Receiver as required by Applicable Law
(whichever is the Person exercising the rights under this clause) or,
at such Person's option, in the name of Grantor, to collect, receive,
sue for and recover all rents and proceeds of or derived from the
Mortgaged Property, and after deducting therefrom all costs, expenses
and liabilities of every character incurred by the Person exercising
the rights under this clause in collecting the same and in using,
operating, managing, preserving and controlling the Mortgaged Property
and otherwise in exercising the rights under clause (vi) of this
subsection (a) or any other rights hereunder, including all amounts
necessary to pay Impositions, rents, insurance premiums and other
costs, expenses and liabilities relating to the Mortgaged Property, as
well as reasonable compensation for the services of such
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Person and its managers, employees, contractors, agents or other
representatives, to apply the remainder as provided in Section 5.6; or
(vii) to take any action with respect to any portion of
the Mortgaged Property permitted under the Uniform Commercial Code as
in effect in the State (the "UCC"); or
(viii) to declare the Loan or the portion thereof
allocated to the applicable Individual Property pursuant to Section 6.2
of the Loan Agreement (together with interest thereon) to be
immediately due and payable in accordance with Section 6.2 of the Loan
Agreement and to seek a judgment for the same; or
(ix) to take any other action, or pursue any other remedy
or right, as Beneficiary or Trustee may have under Applicable Law,
including the right to foreclosure through court action, and Grantor
does hereby grant the same to Beneficiary and Trustee.
(b) To the fullest extent permitted by Applicable Law,
(i) each remedy or right hereunder shall be in addition
to, and not exclusive or in limitation of, any other remedy or right
hereunder, under any other Loan Document, under Applicable Law, or in
equity;
(ii) every remedy or right hereunder, under any other Loan
Document or under Applicable Law may be exercised concurrently or
independently and whenever and as often as deemed appropriate by the
party exercising such remedy;
(iii) no failure to exercise or delay in exercising any
remedy or right hereunder, under any other Loan Document or under
Applicable Law shall be construed as a waiver of any default or Event
of Default or other occurrence hereunder or under any other Loan
Document;
(iv) no waiver of, failure to exercise or delay in
exercising any remedy or right hereunder, under any other Loan Document
or under Applicable Law upon any Default or other occurrence hereunder
or under any other Loan Document shall be construed as a waiver of, or
otherwise limit the exercise of, such remedy or right upon any other or
subsequent default or Event of Default or other or subsequent
occurrence hereunder or under any other Loan Document;
(v) no single or partial exercise of any remedy or right
hereunder, under any other Loan Document or under Applicable Law upon
any Event of Default or other occurrence hereunder or under any other
Loan Document shall preclude or
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otherwise limit the exercise of any other remedy or right hereunder,
under any other Loan Document or under Applicable Law upon such Event
of Default or occurrence or upon any other or subsequent default or
Event of Default or other or subsequent occurrence hereunder or under
any other Loan Document;
(vi) the acceptance by Beneficiary or any other Secured
Party of any payment less than the amount of the Secured Obligation in
question shall be deemed to be an acceptance on account only and shall
not be construed as a waiver of any default or Event of Default
hereunder or under any other Loan Document with respect thereto; and
(vii) the acceptance by Beneficiary or any other Secured
Party of any payment of, or on account of, any Secured Obligation shall
not be deemed to be a waiver of any default or Event of Default or
other occurrence hereunder or under any other Loan Document with
respect to any other Secured Obligation.
(c) If Beneficiary or Trustee has proceeded to enforce any
remedy or right hereunder or with respect hereto by foreclosure, sale, entry or
otherwise, it may compromise, discontinue or abandon such proceeding for any
reason without notice to Grantor or any other Person; and, if any such
proceeding shall be discontinued, abandoned or determined adversely for any
reason, Grantor, Trustee and Beneficiary shall retain and be restored to their
former positions and rights hereunder with respect to the Mortgaged Property,
subject to the Lien hereof except to the extent any such adverse determination
specifically provides to the contrary.
(d) For the purpose of carrying out any provisions of Section
5.2(a)(v), 5.2(a)(vi), 5.5, 5.10 or 6.1 or any other provision hereunder
authorizing Beneficiary, Trustee or any other Person to perform any action on
behalf of Grantor, Grantor hereby irrevocably appoints Beneficiary, Trustee or a
Receiver appointed pursuant to Section 5.2(a)(iv) or such other Person as the
attorney-in-fact of Grantor (with a power to substitute any other Person in its
place as such attorney-in-fact) to act in the name of Grantor or, at the option
of the Person appointed to act under this subsection, in such Person's own name,
to take the action authorized under Section 5.2(a)(v), 5.2(a)(vi), 5.5, 5.10 or
6.1 or such other provision, and to execute, acknowledge and deliver any
document in connection therewith or to take any other action incidental thereto
as the Person appointed to act under this subsection shall deem appropriate in
its discretion; and Grantor hereby irrevocably authorizes and directs any other
Person to rely and act on behalf of the foregoing appointment and a certificate
of the Person appointed to act under this subsection that such Person is
authorized to act under this subsection; provided, however, that the appointment
made hereby shall only be effective for any period following the happening of
and during the continuance of an Event of Default.
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SECTION 5.3. Waivers by Grantor. To the fullest extent
permitted under Applicable Law, Grantor shall not assert, and hereby irrevocably
waives, any right or defense Grantor may have under any statute or rule of law
or equity now or hereafter in effect relating to (i) appraisement, valuation,
homestead exemption, extension, moratorium, stay, statute of limitations,
redemption, marshalling of the Mortgaged Property or the other assets of
Grantor, sale of the Mortgaged Property in any order or notice (including,
without limitation, notice of intention to accelerate), presentment, demand,
protest or other formalities of any kind; (ii) impairment of any right of
subrogation, set-off, counterclaim, deduction or reimbursement; (iii) any
requirement that at any time any action must be taken against any other Person,
any portion of the Mortgaged Property or any other asset of Grantor or any other
Person; (iv) any provision barring or limiting the right of Beneficiary or
Trustee to sell any Mortgaged Property after any other sale of any other
Mortgaged Property or any other action against Grantor or any other Person; (v)
any provision barring or limiting the recovery by Beneficiary or Trustee of a
deficiency after any sale of the Mortgaged Property; or (vi) any other provision
of Applicable Law which might defeat, limit or adversely affect any right or
remedy of Beneficiary under or with respect to this Indenture or any other
Collateral Document as it relates to any Mortgaged Property.
SECTION 5.4. Jurisdiction and Process. (a) To the extent
permitted under Applicable Law, in any suit, action or proceeding arising out of
or relating to this Indenture or any other Collateral Document as it relates to
any Mortgaged Property, Grantor (i) irrevocably consents to the non-exclusive
jurisdiction of any state or federal court sitting in the State in which the
applicable Individual Property is located and irrevocably waives any defense or
objection which it may now or hereafter have to the jurisdiction of such court
or the venue of such court or the convenience of such court as the forum for any
such suit, action or proceeding; and (ii) irrevocably consents to the service of
(A) any process in any such suit, action or proceeding, or (B) any notice
relating to any sale, or the exercise of any other remedy by Beneficiary
hereunder by mailing a copy of such process or notice by United States
registered or certified mail, postage prepaid, return receipt requested to
Grantor at its address specified in or pursuant to Section 7.2. such service to
be effective when such process or notice is mailed as aforesaid.
(b) Nothing in this Section 5.4 shall affect the right of
Beneficiary or Trustee to bring any suit, action or proceeding arising out of or
relating to this Indenture or any other Collateral Document in any court having
jurisdiction under the provisions of any other Collateral Document or Applicable
Law or to serve any process, notice of sale or other notice in any manner
permitted by any other Collateral Document or Applicable Law.
SECTION 5.5. Sales. Except as otherwise provided herein, to
the fullest extent permitted under Applicable Law, at the election of
Beneficiary, the following provisions shall apply to any sale of the Mortgaged
Property hereunder, whether made
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pursuant to the power of sale hereunder, any judicial proceeding or any judgment
or decree of foreclosure or sale or otherwise:
(a) Beneficiary, Trustee or the court officer (whichever is
the Person conducting any sale) may conduct any number of sales from time to
time. The power of sale hereunder or with respect hereto shall not be exhausted
by any sale as to any part or parcel of the Mortgaged Property which is not
sold, unless and until the Secured Obligations shall have been paid in full, and
shall not be exhausted or impaired by any sale which is not completed or is
defective. Any sale may be as a whole or in part or parcels and, as provided in
Section 5.3, Grantor has waived its right to direct the order in which the
Mortgaged Property or any part or parcel thereof is sold.
(b) Any sale may be postponed or adjourned by public
announcement at the time and place appointed for such sale or for such postponed
or adjourned sale without further notice.
(c) After each sale, the Person conducting such sale shall
execute and deliver to the purchaser or purchasers at such sale a good and
sufficient instrument or instruments granting, conveying, assigning,
transferring and delivering all right, title and interest of Grantor in and to
the Mortgaged Property sold, and shall receive the proceeds of such sale and
apply the same as provided in Section 5.6. Grantor hereby irrevocably appoints
the Person conducting such sale as the attorney-in-fact of Grantor (with full
power to substitute any other Person in its place as such attorney-in-fact) to
act in the name of Grantor or, at the option of the Person conducting such sale,
in such Person's own name, to make without warranty by such Person any
conveyance, assignment, transfer or delivery of the Mortgaged Property sold, and
to execute, acknowledge and deliver any instrument of conveyance, assignment,
transfer or delivery or other document in connection therewith or to take any
other action incidental thereto, as the Person conducting such sale shall deem
appropriate in its discretion; and Grantor hereby irrevocably authorizes and
directs any other Person to rely and act upon the foregoing appointment and a
certificate of the Person conducting such sale that such Person is authorized to
act hereunder. Nevertheless, upon the request of such attorney-in-fact, Grantor
shall promptly execute, acknowledge and deliver any documentation which such
attorney-in-fact may require for the purpose of ratifying, confirming or
effectuating the powers granted hereby or any such conveyance, assignment,
transfer or delivery by such attorney-in-fact.
(d) Any statement of fact or other recital made in any
instrument referred to in Section 5.5(c) given by the Person conducting any sale
as to the nonpayment of any Secured Obligation, the occurrence of any Event of
Default, the amount of the Secured Obligations due and payable, the request to
Trustee or Beneficiary to sell, the notice of the time, place and terms of sale
and of the Mortgaged Property to be sold having been duly given, the refusal,
failure or inability of Trustee or Beneficiary to act, the appointment of
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any substitute or successor agent, any other act or thing having been duly done
by Grantor, Trustee, Beneficiary or any other such Person, shall be taken as
conclusive and binding against all other Persons as evidence of the truth of the
facts so stated or recited.
(e) The receipt by the Person conducting any sale of the
purchase money paid at such sale shall be sufficient discharge therefor to any
purchaser of any Mortgaged Property sold, and no such purchaser, or its
representatives, grantees or assigns, after paying such purchase price and
receiving such receipt, shall be bound to see to the application of such
purchase price or any part thereof upon or for any trust or purpose of this
Indenture or the other Loan Documents, or, in any manner whatsoever, be
answerable for any loss, misapplication or nonapplication of any such purchase
money or be bound to inquire as to the authorization, necessity, expediency or
regularity of such sale.
(f) Subject to mandatory provisions of Applicable Law, any
sale shall operate to divest all of the estate, right, title, interest, claim
and demand whatsoever, whether at law or in equity, of Grantor in and to the
Mortgaged Property sold, and shall be a perpetual bar both at law and in equity
against Grantor and any and all Persons claiming such Mortgaged Property or any
interest therein by, through or under Grantor.
(g) At any sale, Beneficiary may bid for and acquire the
Mortgaged Property sold and, in lieu of paying cash therefor, may make
settlement for the purchase price by causing the Beneficiary to credit against
the Secured Obligations, including the expenses of the sale and the cost of any
enforcement proceeding hereunder, the amount of the bid made therefor to the
extent necessary to satisfy such bid.
(h) If Grantor or any Person claiming by, through or under
Grantor shall transfer or fail to surrender possession of the Mortgaged
Property, after the exercise by Beneficiary of Beneficiary's remedies under
Section 5.2(a)(v) or after any sale of the Mortgaged Property pursuant hereto,
then Grantor or such Person shall be deemed a tenant at sufferance of the
purchaser at such sale, subject to eviction by means of summary process for
possession of land, or subject to any other right or remedy available hereunder
or under Applicable Law.
(i) Upon any sale, it shall not be necessary for the Person
conducting such sale to have any Mortgaged Property being sold present or
constructively in its possession.
(j) If a sale hereunder shall be commenced by Trustee or
Beneficiary, Beneficiary may at any time before the sale abandon the sale, and
may institute suit for the collection of the Secured Obligations or for the
foreclosure of this Indenture; or if Beneficiary shall institute a suit for
collection of the Secured Obligations or the foreclosure of this Indenture,
Beneficiary may at any time before the entry of final judgment in said suit
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dismiss the same and sell or cause Trustee to sell the Mortgaged Property in
accordance with the provisions of this Indenture.
SECTION 5.6. Proceeds. Except as otherwise provided herein or
required under Applicable Law, the proceeds of any sale of, or other realization
upon, the Mortgaged Property hereunder, whether made pursuant to the power of
sale hereunder, any judicial proceeding or any judgment or decree of foreclosure
or sale or otherwise, shall be applied and paid as follows:
(a) First: to the payment of all expenses of such sale or
other realization, including reasonable compensation for the Person conducting
such sale (which may include Trustee or Beneficiary), the cost of title
searches, foreclosure certificates and reasonable attorneys' fees and expenses
incurred by such Person;
(b) Second: to the payment of all expenses and other amounts
payable under Sections 4.1, 5.10 and 5.12;
(c) Third: to the payment of the other Secured Obligations in
such order and manner as Beneficiary shall determine in its sole discretion,
until all Secured Obligations shall have been paid in full; and
(d) Fourth: to pay to Grantor or its successors and assigns
any surplus then remaining from such proceeds.
SECTION 5.7. [Reserved].
SECTION 5.8. Dealing With the Mortgaged Property. Subject to
Section 7.1, Beneficiary shall have the right to release any portion of the
Mortgaged Property, or grant or consent to the granting of any Lien affecting
any portion of the Mortgaged Property, to or at the request of Grantor, for such
consideration as Beneficiary may require without, subject to Grantor's rights
with respect to a Substitution and Release as set forth herein and in the Loan
Agreement, as to the remainder of the Mortgaged Property, in any way impairing
or affecting the Lien or priority of this Indenture, or improving the position
of any subordinate lienholder with respect thereto, or the position of any
guarantor, endorser, co-maker or other obligor of the Secured Obligations,
except to the extent that the Secured Obligations shall have been reduced by any
actual monetary consideration received for such release and applied to the
Secured Obligations, and may accept by assignment, pledge or otherwise any other
property in place thereof as Beneficiary may require without being accountable
therefor to any other lienholder.
SECTION 5.9. Right of Entry. To the extent permitted under
applicable law, Beneficiary and the representatives of Beneficiary shall have
the right, (i) without notice, if
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an Event of Default has occurred and is continuing, or (ii) after reasonable
notice, in all other cases, to enter upon any Individual Property at reasonable
times, and with reasonable frequency, to inspect such Individual Property or,
subject to the provisions hereof, to exercise any right, power or remedy of
Beneficiary hereunder, provided that any Person so entering such Individual
Property shall not unreasonably interfere with the ordinary conduct of Grantor's
or any occupant's business, and provided further that no such entry on the
Property, for the purpose of performing obligations under Section 5.10 or for
any other purpose, shall be construed to be (x) possession of such Individual
Property by such Person or to constitute such Person as a mortgagee in
possession, unless such Person exercises its right to take possession of such
Individual Property under Section 5.2(a)(v), or (y) a cure of any Event of
Default or a waiver of any default or Event of Default or Secured Obligation.
The costs and expenses of any inspection pursuant to clause (ii) above shall be
borne by Beneficiary unless an Event of Default shall have occurred and be
continuing at the time of such inspection, in which case Grantor shall pay, or
reimburse Beneficiary for, such costs and expenses.
SECTION 5.10. Right to Perform Obligations. If Grantor fails
to pay or perform any obligation of Grantor hereunder or under any other Loan
Document, Beneficiary and the representatives of Beneficiary shall have the
right to pay or perform such obligation (i) with simultaneous notice, if an
Event of Default has occurred and is continuing, or if such payment or
performance is necessary in the reasonable opinion of Beneficiary to preserve
Beneficiary's rights under this Indenture or with respect to the Mortgaged
Property (unless, in light of the exigent circumstances, it shall be impractical
to give such notice) or (ii) after notice given reasonably in advance to allow
Grantor an opportunity to pay or perform such obligation if such payment or
performance is not pursuant to clauses (i) or (ii) above, provided that Grantor
is not contesting payment or performance in accordance with the terms hereof or
of any other Loan Document and further provided that no such payment or
performance shall be construed to be a cure of any Event of Default or a waiver
of any default or Event of Default or Secured Obligation. Grantor shall
reimburse Beneficiary on demand for the reasonable costs of performing any such
obligations and any amounts not paid on demand shall bear interest, payable on
demand, for each day until paid at the Default Rate for such day.
SECTION 5.11. Agents. At any time or times, in order to comply
with any legal requirement in any jurisdiction, Beneficiary may appoint a bank
or trust company or one or more other Persons, either to act as co-agent or
co-agents, jointly with Beneficiary, or to act as separate agent or agents on
behalf of Lender with such power and authority as may be necessary for the
effectual operation of the provisions hereof and may be specified in the
instrument of appointment (which may, in the discretion of Beneficiary, include
provisions for the protection of such co-agent or separate agent similar to the
provisions of this Section 5.11). References to Beneficiary in Section 5.12 and
elsewhere herein shall be deemed to
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include any co-agent or co-agents or separate agent or agents appointed pursuant
to this Section 5.11.
SECTION 5.12. [RESERVED]
SECTION 5.13. Assignment of Agreements and Permits. (a)
Subject to paragraph (b) of this Section 5.13, the assignments of the Agreements
and the Permits under Granting Clauses IV and V are collateral assignments by
the Grantor of its right and interest in the Agreements and the Permits to the
Beneficiary. Unless a Material Event of Default shall have occurred and be
continuing, the Grantor shall retain the right to enforce the terms of the
Agreements and the Permits, to exercise all of the Grantor's rights thereunder
and to collect all sums due to the Grantor thereunder. Upon the occurrence and
during the continuance of any Material Event of Default, at the request of the
Beneficiary, the Trustee or a Receiver appointed pursuant to Section 5.2(a)(iv)
(whichever is the Person exercising the rights under this Section 5.13), the
Grantor shall promptly execute, acknowledge, deliver, record, register and file
any additional general assignment of the Agreements or the Permits or specific
assignment of any Agreement or Permit which the Beneficiary, the Trustee or such
Receiver may reasonably require from time to time (all in form and substance
satisfactory to the Beneficiary, the Trustee or such Receiver) to effectuate,
complete, perfect, continue or preserve the assignments of the Agreements and
the Permits under Granting Clauses IV and V. Grantor hereby irrevocably appoints
Beneficiary as the attorney-in-fact of Grantor (with a power to substitute any
other Person in its place as such attorney-in-fact) exercisable only upon and
during the continuance of a Material Event of Default, to act in the name of
Grantor to execute, acknowledge and deliver any such documents upon the failure
by the Grantor to do so.
(b) Nothing herein shall be construed to be an assumption by
the Person exercising rights pursuant to this Section 5.13, or otherwise make
such Person liable for the performance, of any of the obligations of the Grantor
under the Agreements or the Permits.
ARTICLE Vl
FIXTURE FILING
SECTION 6.1. Security Interest and Fixture Filing. To the
extent that any portion of the Mortgaged Property defined as Timber in Granting
Clause 11 or Fixtures in Granting Clause III hereof constitutes fixtures under
the UCC or Applicable Law, and to the extent permitted under Applicable Law,
Grantor hereby grants a security interest therein and this Indenture shall be
construed as a pledge and security agreement with respect to such Timber and
Fixtures; and, upon the filing of this Indenture in the real estate records of
the
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appropriate county in the State in which the Mortgaged Property (or the
applicable Individual Property) is located shall also operate from the time of
filing as a fixture filing with respect to the Timber and Fixtures located
thereon. In connection with any such filing, the debtor and record owner is the
Grantor and the secured party is the Beneficiary and their addresses are those
set forth at the beginning of this Indenture. Upon the occurrence and during the
continuance of a Material Event of Default, the Trustee or Beneficiary, as
applicable, shall be entitled to exercise with respect to such Timber and
Fixtures all remedies available under the UCC or Applicable Law. At any time and
from time to time, upon the occurrence and during the continuance of an Event of
Default, Beneficiary shall be the attorney-in-fact of Grantor (with a power to
substitute any other Person in its place as such attorney-in-fact) with respect
to any and all matters pertaining to such Timber and Fixtures with full power
and authority to give instructions with respect to the collection and remittance
of payments, to endorse checks, to enforce the rights and remedies of Grantor
and to execute on behalf of Grantor and in Grantor's name any instruction,
agreement or other writing required therefor. Grantor acknowledges and agrees
that a disposition of the Timber and Fixtures in accordance with Beneficiary's
rights and remedies with respect to the Mortgaged Property as heretofore
provided is a commercially reasonable disposition thereof.
SECTION 6.2. Limitation on Security Interest in Timber.
Grantor acknowledges that Beneficiary may be required by the provisions of the
UCC to file separate UCC financing statements with respect to the perfection of
Beneficiary's security interest in the Timber. Notwithstanding anything to
contrary contained in Granting Clause 11, Section 6.1 or elsewhere in this
Indenture, Beneficiary and Grantor acknowledge and agree that it is the intent
of the parties hereto that Beneficiary's security interest in the Timber
pursuant to this Indenture and the UCC shall be limited to a security interest
in the proceeds derived by Grantor from the harvesting and/or sale of such
Timber and that so long as no Material Event of Default shall have occurred and
be continuing hereunder, Grantor shall be entitled to continue to operate its
business on the Land, including the harvesting and use of the Timber thereon, in
the ordinary course; including, but not limited to, (i) cutting and using and
cutting and selling, or entering into contracts for the cutting and sale, of the
Timber, (ii) granting easements or constructing roads to facilitate any of the
foregoing, (iii) exploiting all mineral resources now or hereafter located on
the Land, (iv) granting licenses or leases with respect to the Land, such as
hunting and recreational licenses; and (v) retaining any proceeds in connection
with the granting of such licenses, leases or easements, in each case, without
the consent or approval of Beneficiary.
SECTION 6.3. Executive Office. Grantor represents and warrants
Grantor maintain its principal executive offices, at the address of Grantor
first set forth above and in Burbank California and Grantor's books and records
in respect of the Mortgaged Property are kept at such locations. Grantor
covenants and agrees with Beneficiary that, in the event Grantor changes the
address of its executive offices or place where Grantor's books and
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records in respect of the Mortgaged Property are kept, Grantor shall notify
Beneficiary of any such change of address within ten (10) days thereafter.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Release of Mortgaged Property. (a) This Indenture
shall cease, terminate and thereafter be of no further force or effect upon any
of the following events: (i) the payment in full of all Secured Obligations
(other than obligations that may arise from and after the date of release under
any indemnification provisions included in any Loan Document); (ii) a
substitution of the entire Mortgaged Property by the Mortgagor pursuant to
Section 7.7 of the Loan Agreement; (iii) the optional or mandatory, as
applicable, prepayment in full of the Loan by Grantor in respect of the
Mortgaged Property pursuant to Section 2.6(a) or Section 2.7(a) of the Loan
Agreement or Section 4.1 hereof; and (iv) with respect to the applicable
Individual Property, the prepayment of the Loan by Grantor in respect of such
Individual Property pursuant to Section 2.7(a) of the Loan Agreement.
(b) At any time and from time to time prior to such
termination of this Indenture, Beneficiary shall, or shall cause the Trustee to,
release from the Lien of this Indenture a portion of the Mortgaged Property in
connection with a Substitution or Release with respect to such portion in
accordance with Section 7.7 of the Loan Agreement.
(c) Beneficiary shall release, or cause Trustee to release,
any and all Mortgaged Property required in connection with any transaction, or
sale, Transfer, assignment or other disposition of the Mortgaged Property
consummated by Grantor as permitted by the Loan Agreement or any other Loan
Document, and shall be fully protected in relying on a certificate of an
authorized officer of Grantor to such effect.
(d) Any termination or release under this Section 7.1 shall be
at Grantor's request and expense and either in the statutory form or in form and
substance reasonably satisfactory to Beneficiary, Trustee and Grantor and
legally sufficient to accomplish the release.
SECTION 7.2. Notices. All notices, approvals, requests,
demands, consents, approvals and other communications hereunder shall be in
writing and shall be deemed given to Grantor or Beneficiary as the case may be,
in the manner and at its address for notices specified in or pursuant to Section
7.1 of the Loan Agreement. All notices and other communications hereunder to be
given to Trustee shall be given to Trustee in the manner specified in such
Section 7.1 addressed or directed as set forth in Exhibit B annexed hereto.
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Trustee may change its address specified above as provided in Section 7.1 of the
Loan Agreement.
SECTION 7.3. Trustee. To the extent that the Mortgaged
Property or any Individual Property (or such portion thereof as shall be
applicable) is located is a Trust State, the following provisions, and all
references here to the Trustee, shall be applicable:
(a) Grantor hereby acknowledges the appointment of Trustee to
act as trustee for the benefit of Beneficiary and its successors and assigns
Trustee.
(b) Trustee may, at its option, resign as trustee hereunder by
notice given to Beneficiary and Grantor and such resignation shall be effective
on the earlier to occur of (i) the date which is 30 days after the date on which
Trustee gives such notice to Beneficiary and Grantor or (ii) the date on which a
successor trustee is appointed by Beneficiary and accepts such appointment.
(c) Beneficiary may, at its option, with or without cause or
notice, remove Trustee, appoint a successor trustee or appoint an additional
trustee or trustees (including a separate trustee for each jurisdiction in which
an Individual Property is located) hereunder by an instrument in writing
executed and acknowledged by Beneficiary and accepted by such successor or
additional trustee and recorded, registered or filed in the real estate records
of the jurisdiction in which the Mortgaged Property affected by such instrument
is located; and, thereupon, without further act, deed or conveyance, such
substitute or additional trustee shall be fully vested with an estate, right,
title and interest of its predecessor or co-trustee in, to, under or derived
from the Mortgaged Property and all rights, powers, privileges and obligations
of such predecessor or co-trustee, with the same effect as if such successor or
additional trustee had originally been named as trustee or co-trustee hereunder.
The execution, acknowledgement and recording, registration or filing of such an
instrument shall be conclusive evidence against Grantor and all other Persons of
the proper removal of Trustee and/or substitution or addition of the successor
or additional trustee; and, if Beneficiary or such successor or additional
trustee is a corporation, the execution and acknowledgement by an officer of
such corporation shall be conclusive evidence against all other Persons of the
due authorization, execution and delivery thereof by such corporation.
(d) Notwithstanding anything herein to the contrary, Trustee
shall not exercise or waive the exercise of any of its rights, powers or
remedies hereunder or otherwise act or refrain from acting hereunder unless
directed to do so by Beneficiary, and Trustee shall exercise or waive the
exercise of any of its rights, powers or remedies hereunder and otherwise act or
refrain from acting when and in the manner directed by Beneficiary, provided
that Trustee (i) shall not be required to follow any direction of Beneficiary if
Trustee has been advised by counsel that such action would violate Applicable
Law, (ii) shall not be required to expend or risk its own funds or otherwise
incur any financial liability in
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connection with such action if it has grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not assured
to it, and (iii) shall be entitled to exercise its rights under subsection (b)
and (e) of this Section without such direction by Beneficiary.
(e) Trustee shall be entitled to receive, and Grantor shall
pay, reasonable and customary compensation to Trustee for its services rendered
hereunder after any Event of Default and reimbursement to Trustee for its
expenses (including attorneys' fees and expenses) in connection herewith or the
exercise of any right, power or remedy hereunder.
(f) Trustee shall not be liable with respect to any act taken
or omitted by it in good faith in accordance with any direction of Beneficiary.
Except for willful misconduct or gross negligence, Trustee shall not be liable
(i) in acting upon any direction, demand, request, notice, statement or other
document believed by it in good faith to be genuine and delivered by the Person
empowered to do so, (ii) for any error in judgment or mistake of fact or law
made in good faith, or (iii) for any action taken or omitted by it in accordance
with the provisions of this Indenture. Trustee shall not be responsible to see
to the recording, registration or filing of this Indenture or any financing
statement relating hereto in any jurisdiction or for the payment of any fees,
charges or taxes in connection therewith. No co-trustee hereunder shall be
liable for any act or omission of any other co-trustee.
All moneys received by Trustee hereunder (other than amounts
payable to Trustee pursuant to subsection (e) of this Section 7.3) shall be held
by Trustee in trust for the purposes for which such moneys were received; and,
except as provided herein or under mandatory provisions of Applicable Law,
Trustee need not segregate such moneys from any other moneys and shall have no
liability to pay interest thereon, except such interest as it may actually earn
thereon.
SECTION 7.4. Amendments in Writing. No provision of this
Indenture shall be modified, waived or terminated, and no consent to any
departure by Grantor from any provision of this Indenture shall be effective,
unless the same shall be by an instrument in writing, signed by Grantor and
Beneficiary in accordance with Section 7.5 of the Loan Agreement. Any such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
SECTION 7.5. Severability. All rights, powers and remedies
provided in this Indenture may be exercised only to the extent that the exercise
thereof does not violate Applicable Law, and all the provisions of this
Indenture are intended to be subject to all mandatory provisions of Applicable
Law and to be limited to the extent necessary so that they will not render this
Indenture illegal, invalid, unenforceable or not entitled to be recorded,
registered or filed under Applicable Law. If any provision of this Indenture or
the application thereof to any Person or circumstance shall, to any extent, be
illegal, invalid or
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unenforceable, or cause this Indenture not to be entitled to be recorded,
registered or filed, the remaining provisions of this Indenture or the
application of such provision to other Persons or circumstances shall not be
affected thereby, and each provision of this Indenture shall be valid and be
enforced to the fullest extent permitted under Applicable Law.
SECTION 7.6. Binding Effect. (a) The provisions of this
Indenture shall be binding upon and inure to the benefit of each of the parties
hereto and their respective successors and assigns.
(b) To the fullest extent permitted under Applicable Law, the
provisions of this Indenture binding upon Grantor shall be deemed to be
covenants which run with the land.
(c) Nothing in this Section 7.6 shall be construed to permit
Grantor to Transfer or grant a Lien upon the Mortgaged Property (or any portion
thereof) contrary to the provisions of the Loan Agreement.
SECTION 7.7. WAIVER OF JURY TRIAL. GRANTOR HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 7.8. GOVERNING LAW. THIS INDENTURE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE
APPLICABLE INDIVIDUAL PROPERTY IS LOCATED WITHOUT REGARD TO THE CONFLICT-OF-LAW
PROVISIONS THEREOF.
SECTION 7.9. JURISDICTION. GRANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY: (A) SUBMITS IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
INDENTURE TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE
IN WHICH THE PROPERTY IS LOCATED AND THE COURTS OF THE UNITED STATES OF AMERICA
FOR THE DISTRICT IN WHICH THE PROPERTY IS LOCATED AND APPELLATE COURTS FROM ANY
THEREOF; (B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN ANY
SUCH COURT AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM
THE SAME; (C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED IN THE MANNER SPECIFIED FOR NOTICES AND OTHER COMMUNICATIONS IN
SECTION 7.1 AND SHALL BE EFFECTIVE AS PROVIDED IN SECTION 7.1; AND (D) AGREES
THAT NOTHING HEREIN SHALL AFFECT
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THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION OR COURT HAVING
JURISDICTION.
SECTION 7.10. Counterparts: Integration. This Indenture may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Indenture together with the other Loan Documents constitutes
the entire understanding among the parties hereto with respect to the subject
matter hereof and supersedes any and all prior understandings, oral or written,
relating to the subject matter hereof.
SECTION 7.11. Consents by Beneficiary. If Beneficiary is
determined to have been unreasonable in withholding any consent or approval to
any action where Beneficiary is required to be reasonable in granting or
withholding such consent or approval, the sole remedy available to Grantor shall
be declaratory relief.
ARTICLE VIII
STATE SPECIFIC PROVISIONS
SECTION 8.1. Incorporation by Reference. The provisions of
Exhibit C annexed hereto are hereby incorporated by reference herein as though
set forth in full herein.
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IN WITNESS WHEREOF, Grantor has executed and delivered this
Indenture as of the day first set forth above.
Grantor
[ ]
By: ______________________________
Name:
Title:
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[Add Appropriate State Acknowledgement]
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EXHIBIT A[_____]
Legal Description[s]
89
EXHIBIT B
Trustee Name and Address
90
EXHIBIT C
State Specific Provisions
91
SCHEDULE I
Grantors
92
EXHIBIT C
Lender's Wire Transfer
Instructions
93
Schedule 1
Non-Recording States*
(* Subject to revision to reflect changes in law from the Closing Date
through the Mortgage Delivery Date)
Alabama
District of Columbia
Florida
Georgia
Hawaii
Kansas
Louisiana (Only in Orleans Parish)
Maryland
Minnesota
New York
Oklahoma
Puerto Rico
Tennessee
Virginia
Any jurisdiction outside the United States whose laws with respect to the
recording and enforcement of the Mortgage are substantially similar in effect to
the laws of the State of New York.