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EXHIBIT 10.15
[FORM OF] MORTGAGE, SECURITY AGREEMENT
AND ASSIGNMENT OF LEASES AND RENTS
THIS MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND
RENTS dated as of April [ ], 1997 (this "Mortgage"), by NEENAH
FOUNDRY COMPANY, a Wisconsin corporation, having an office at 2121
Brooks Avenue, Neenah, WI 54956] (the "Mortgagor"), to THE CHASE
MANHATTAN BANK, a New York banking corporation ("Chase"), having an
office at 270 Park Avenue, New York, New York 10017, as collateral
agent (in such capacity, the "Collateral Agent") for the benefit of
the Secured Parties (as defined below) (the "Mortgagee");
WITNESSETH THAT:
A. Reference is made to the Credit Agreement dated as of April [ ], 1997
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Neenah Corporation (the "Borrower"), NFC Castings, Inc., the
financial institutions party thereto as lenders (the "Lenders") and Chase, as
administrative agent (in such capacity, the "Administrative Agent"), as
Collateral Agent and as issuing bank (in such capacity, the "Issuing Bank"). As
used herein, the term "Secured Parties" shall mean (i) the Lenders, (ii) the
Administrative Agent, (iii) the Collateral Agent, (iv) the Issuing Bank, (v)
each counterparty to an Interest Rate Protection Agreement entered into with the
Borrower if such counterparty was a Lender at the time the Interest Rate
Protection Agreement was entered into, (vi) the beneficiaries of each
indemnification obligation undertaken by the Borrower under any Loan Document
and (vii) the successors and permitted assigns of each of the foregoing.
Pursuant to the Credit Agreement, (i) the Lenders have lent or agreed to lend to
the Borrower (a) on a term basis, Tranche A Term Loans (such term and each other
capitalized term used herein but not defined herein shall have the meaning
assigned to such term in the Credit Agreement) in an aggregate principal amount
not in excess of $30,000,000, (b) on a term basis, Tranche B Term Loans in an
aggregate principal amount not in excess of $25,000,000 and (c) on a revolving
basis, Revolving Loans, at any time and from time to time prior to the Revolving
Credit Maturity Date, in an aggregate principal amount at any time outstanding
not in excess of $30,000,000 and (ii) the Issuing Bank has issued and has agreed
to issue Letters of Credit in an aggregate face amount at any time outstanding
not in excess of $15,000,000 in each case on the terms and subject to the
conditions of the Credit Agreement.
B. The Borrower has entered into a Merger Agreement whereby the Borrower
will merge with and into Neenah Corporation, a Wisconsin corporation ("Neenah"),
with Neenah as the surviving corporation. Following the consummation of the
Merger, the Mortgagor will become a wholly owned subsidiary of the Borrower and
will derive substantial benefit from the making of the Loans by the Lenders and
the issuing of the Letters of Credit by the Issuing Bank. In order to induce the
Lenders to make Loans and the Issuing Bank to issue Letters of Credit, the
Mortgagor has agreed to guarantee pursuant to the Guarantee Agreement the due
and punctual payment and performance of Obligations (as defined in paragraph D
below).
C. The proceeds of the Term Loans will be used by the Borrower, together
with proceeds of Revolving Loans to be made on the Closing Date, the proceeds of
the Senior Subordinated Notes and the
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Equity Contribution solely (a) to pay the Merger Consideration and (b) to pay
related fees and expenses. The remaining proceeds of the Revolving Loans and the
Letters of Credit will be used for general corporate purposes in the ordinary
course of the Borrower's business.
D. The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit under the Credit Agreement are conditioned upon, among
other things, the execution and delivery by the Mortgagor of this Mortgage in
the form hereof, to secure the due and punctual payment of (a) the principal of
and premium, if any, and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (b) each payment required to be made
by the Borrower under the Credit Agreement in respect of any Letter of Credit,
when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral, (c)
all other monetary obligations, including fees, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise (including
deficiency judgments and monetary obligations incurred during the pendency of
any bankruptcy, insolvency, receivership or other similar proceeding, regardless
of whether allowed or allowable in such proceeding), of the Mortgagor and the
Borrower to the Secured Parties under the Credit Agreement, this Mortgage and
the other Loan Documents to which the Mortgagor or the Borrower is or is to be a
party, (d) the due and punctual performance of all covenants, agreements,
obligations and liabilities of the Mortgagor and the Borrower under or pursuant
to the Credit Agreement, this Mortgage and the other Loan Documents to which the
Mortgagor or the Borrower is or is to be a party and (e) the due and punctual
payment and performance of all obligations of the Borrower under each Interest
Rate Protection Agreement entered into with a counterparty that was a Lender at
the time such Interest Rate Protection Agreement was entered into (all the
obligations referred to in the preceding clauses (a) through (e) being referred
to collectively, as the "Obligations").
E. Pursuant to the requirements of the Credit Agreement, the Mortgagor is
entering into this Mortgage to create a security interest in the Mortgaged
Property (as defined herein) to secure the performance and payment by the
Mortgagor and the Borrower of the Obligations. The Credit Agreement also
requires the granting by Borrower and other Domestic Subsidiaries (the "Other
Mortgages") that create security interests in certain Mortgaged Properties other
than the Mortgaged Property to secure the performance of the Obligations.
Granting Clauses
NOW THEREFORE, IN CONSIDERATION OF the foregoing and in order to secure
(A) the due and punctual payment and performance of the Obligations, (B) the due
and punctual payment by the Mortgagor of all taxes and insurance premiums
relating to the Mortgaged Property and (C) all disbursements made by Mortgagee
for the payment of taxes, common area charges or insurance premiums, all fees,
expenses or advances in connection with or relating to the Mortgaged Property,
and interest on such disbursements and other amounts not timely paid in
accordance with the terms of the Credit Agreement, this Mortgage and the other
Loan Documents, Mortgagor hereby grants, conveys, mortgages,
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assigns and pledges to the Mortgagee, for the ratable benefit of the Secured
Parties, a security interest in, all the following described property (the
"Mortgaged Property") whether now owned or held or hereafter acquired:
(1) all Mortgagor's right, title and interest in all the fee estate
in the land more particularly described on Exhibit A hereto (the "Land"),
together with all rights appurtenant thereto, including the easements over
certain other adjoining land granted by any easement agreements, covenant
or restrictive agreements and all air rights, mineral rights, water
rights, oil and gas rights and development rights, if any, relating
thereto, and also together with all of the other easements, rights,
privileges, interests, hereditaments and appurtenances thereunto belonging
or in anyway appertaining and all of the estate, right, title, interest,
claim or demand whatsoever of Mortgagor therein and in the streets and
ways adjacent thereto, either in law or in equity, in possession or
expectancy, now or hereafter acquired (the "Premises");
(2) all Mortgagor's right, title and interest in all buildings,
improvements, structures, paving, parking areas, walkways and landscaping
now or hereafter erected or located upon the Land, and all fixtures of
every kind and type affixed to the Premises or attached to or forming part
of any structures, buildings or improvements and replacements thereof now
or hereafter erected or located upon the Land (the "Improvements");
(3) all Mortgagor's right, title and interest in all apparatus,
movable appliances, building materials, equipment, fittings, furnishings,
furniture, machinery and other articles of tangible personal property of
every kind and nature, and replacements thereof, now or at any time
hereafter placed upon or used in any way in connection with the use,
enjoyment, occupancy or operation of the Improvements or the Premises,
including all of Mortgagor's books and records relating thereto and
including all pumps, tanks, goods, machinery, tools, equipment, lifts
(including fire sprinklers and alarm systems, fire prevention or control
systems, cleaning rigs, air conditioning, heating, boilers, refrigerating,
electronic monitoring, water, loading, unloading, lighting, power,
sanitation, waste removal, entertainment, communications, computers,
recreational, window or structural, maintenance, truck or car repair and
all other equipment of every kind), restaurant, bar and all other indoor
or outdoor furniture (including tables, chairs, booths, serving stands,
planters, desks, sofas, racks, shelves, lockers and cabinets), bar
equipment, glasses, cutlery, uniforms, linens, memorabilia and other
decorative items, furnishings, appliances, supplies, inventory, rugs,
carpets and other floor coverings, draperies, drapery rods and brackets,
awnings, venetian blinds, partitions, chandeliers and other lighting
fixtures, freezers, refrigerators, walk-in coolers, signs (indoor and
outdoor), computer systems, cash registers and inventory control systems,
and all other apparatus, equipment, furniture, furnishings, and articles
used in connection with the use or operation of the Improvements or the
Premises, it being understood that the enumeration of any specific
articles of property shall in no way result in or be held to exclude any
items of property not specifically mentioned (the property referred to in
this subparagraph (3), the "Personal Property");
(4) all Mortgagor's right, title and interest in all general
intangibles relating to design, development, operation, management and use
of the Premises or the Improvements, all certificates of occupancy, zoning
variances, building, use or other permits, approvals, authorizations and
consents obtained from and all materials prepared for filing or filed with
any governmental agency in connection with the development, use, operation
or management of the Premises and
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Improvements, all construction, service, engineering, consulting, leasing,
architectural and other similar contracts concerning the design,
construction, management, operation, occupancy and/or use of the Premises
and Improvements, all architectural drawings, plans, specifications, soil
tests, feasibility studies, appraisals, environmental studies, engineering
reports and similar materials relating to any portion of or all of the
Premises and Improvements, and all payment and performance bonds or
warranties or guarantees relating to the Premises or the Improvements, all
to the extent assignable (the "Permits, Plans and Warranties");
(5) Mortgagor's interest in and rights under any and all now or
hereafter existing leases or licenses (under which Mortgagor is landlord
or licensor) and subleases (under which Mortgagor is sublandlord),
concession, management, mineral or other agreements of a similar kind that
permit the use or occupancy of the Premises or the Improvements for any
purpose in return for any payment, or the extraction or taking of any gas,
oil, water or other minerals from the Premises in return for payment of
any fee, rent or royalty (collectively, "Leases"), and all agreements or
contracts for the sale or other disposition of all or any part of the
Premises or the Improvements, now or hereafter entered into by Mortgagor,
together with all charges, fees, income, issues, profits, receipts, rents,
revenues or royalties payable thereunder ("Rents");
(6) all Mortgagor's right, title and interest in and to all real
estate tax refunds and all proceeds of the conversion, voluntary or
involuntary, of any of the Mortgaged Property into cash or liquidated
claims ("Proceeds"), including Proceeds of insurance maintained by the
Mortgagor and condemnation awards, any awards that may become due by
reason of the taking by eminent domain or any transfer in lieu thereof of
the whole or any part of the Premises or Improvements or any rights
appurtenant thereto, and any awards for change of grade of streets,
together with any and all moneys now or hereafter on deposit for the
payment of real estate taxes, assessments or common area charges levied
against the Mortgaged Property, unearned premiums on policies of fire and
other insurance maintained by the Mortgagor covering any interest in the
Mortgaged Property or required by the Credit Agreement; and
(7) all Mortgagor's right, title and interest in and to all
extensions, improvements, betterments, renewals, substitutes and
replacements of and all additions and appurtenances to, the Land, the
Premises, the Improvements, the Personal Property, the Permits, Plans and
Warranties and the Leases, hereinafter acquired by or released to the
Mortgagor or constructed, assembled or placed by the Mortgagor on the
Land, the Premises or the Improvements, and all conversions of the
security constituted thereby, immediately upon such acquisition, release,
construction, assembling, placement or conversion, as the case may be, and
in each such case, without any further mortgage, deed of trust,
conveyance, assignment or other act by the Mortgagor, all of which shall
become subject to the lien of this Mortgage as fully and completely, and
with the same effect, as though now owned by the Mortgagor and
specifically described herein.
TO HAVE AND TO HOLD the Mortgaged Property unto the Mortgagee, its
successors and assigns, for the ratable benefit of the Secured Parties, forever,
subject only to the Permitted Encumbrances (as hereinafter defined) and to
satisfaction and cancellation as provided in Section 3.04
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ARTICLE I
Representations, Warranties and Covenants of Mortgagor
Mortgagor agrees, covenants, represents and/or warrants as follows:
SECTION 1.01. Title. (a) Mortgagor has good and marketable title to an
indefeasible fee estate in the Land and Improvements subject to no lien, charge
or encumbrance, and this Mortgage is and will remain a valid and enforceable
first and prior lien on the Premises, Improvements and the Rents subject only
to, in each case, Liens permitted by Section 6.02 of the Credit Agreement and
the exceptions and encumbrances referred to in Schedule B to the title insurance
policy being issued to insure the lien of this Mortgage (collectively, the
"Permitted Encumbrances"). The Permitted Encumbrances do not materially
interfere with the current use, enjoyment or operation of the Mortgaged
Property.
(b) Mortgagor has good and marketable title to all the Personal Property
subject to no lien, charge or encumbrance other than this Mortgage and the
Permitted Encumbrances. Except as may be permitted under the Credit Agreement,
the Personal Property is not and will not become the subject matter of any lease
or other arrangement that is not a Permitted Encumbrance whereby the ownership
of any Personal Property will be held by any person or entity other than
Mortgagor; except as permitted under the Credit Agreement, none of the Personal
Property will be removed from the Premises or the Improvements unless the same
is no longer needed for the continued operation of the Premises and the
Improvements as currently operated (or as then operated, to the extent that any
change from the current manner of operation was permitted by the Credit
Agreement) or is replaced by other Personal Property of substantially equal or
greater utility and value; and Mortgagor will not create or cause to be created
(other than Permitted Encumbrances) any security interest covering any of the
Personal Property other than the security interest in the Personal Property
created in favor of Mortgagee by this Mortgage or any other agreement collateral
hereto. The Mortgaged Property is served by water, gas, electric, storm and
sanitary sewage facilities, and such utilities serving the Premises and the
Improvements are located in and in the future will be located in the Premises as
is reasonable and customary for like kind Improvements in the area. There is
vehicular access to the Premises and the Improvements which is provided by,
either a public right-of-way abutting and contiguous with the Land or valid
recorded unsubordinated easements.
(c) Except as set forth on Schedule A hereto, there are no leases
affecting any portion of the Mortgaged Property. Each Lease is in full force and
effect, and, except as set forth on Schedule A hereto, Mortgagor has not given,
nor to Mortgagor's knowledge has it received, any uncured or unwaived notice of
default with respect to any material obligation under any Lease. Each Lease is
subject to no lien, charge or encumbrance other than this Mortgage and the
Permitted Encumbrances.
(d) All easement agreements, covenant or restrictive agreements,
supplemental agreements and any other material instruments hereinabove referred
to and mortgaged hereby are and will remain valid, subsisting and in full force
and effect, unless the failure to remain valid, subsisting and in full force and
effect, individually or in the aggregate, could not reasonably be expected to
have a material adverse effect on the Mortgaged Property, and Mortgagor is not
in default thereunder and has fully performed the material terms thereof
required to be performed through the date hereof, and has no knowledge of any
default thereunder or failure to fully perform the terms thereof by any other
party, nor of the occurrence of any event that after notice or the passage of
time or both will constitute a default thereunder.
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(e) Mortgagor has good and lawful right and full power and authority to
mortgage the Mortgaged Property and will forever warrant and defend its title to
the Mortgaged Property, the rights of Mortgagee therein under this Mortgage and
the validity and priority of the lien of this Mortgage thereon against the
claims of all persons and parties except those having rights under Permitted
Encumbrances to the extent of those rights.
(f) This Mortgage, when duly recorded in the appropriate public records
and when financing statements are duly filed in the appropriate public records,
will create a valid and enforceable lien upon and security interest in all the
Mortgaged Property and there will be no defenses or offsets to this Mortgage
that will be asserted by Mortgagor or its Affiliates (or any third party defense
or offset now known to Mortgagor or its Affiliates) or to any of the Obligations
secured hereby for so long as any portion of the Obligations is outstanding,
other than payment of the Obligations.
SECTION 1.02. Credit Agreement; Certain Amounts. (a) This Mortgage is
given pursuant to the Credit Agreement. Each and every term and provision of the
Credit Agreement, including the rights, remedies, obligations, covenants,
conditions, agreements, indemnities, representations and warranties of the
parties thereto shall be considered as if a part of this Mortgage and to the
extent there is a specific conflict between the terms hereof and the terms of
the Credit Agreement (except with respect to Section 1.01 hereof), the terms of
the Credit Agreement shall control.
(b) If any remedy or right of Mortgagee pursuant hereto is acted upon by
Mortgagee or if any actions or proceedings (including any bankruptcy, insolvency
or reorganization proceedings) are commenced in which Mortgagee is made a party
and is obliged to defend or uphold or enforce this Mortgage or the rights of
Mortgagee hereunder or the terms of any Lease, or if a condemnation proceeding
is instituted affecting the Mortgaged Property, Mortgagor will pay all
reasonable sums, including reasonable attorneys' fees and disbursements,
incurred by Mortgagee related to the exercise of any remedy or right of
Mortgagee pursuant hereto or for the reasonable expense of any such action or
proceeding together with all statutory or other costs, disbursements and
allowances, interest thereon from the date of demand for payment thereof at the
rate specified in clause (b) of Section 2.07 of the Credit Agreement (the
"Default Interest Rate"), and such sums and the interest thereon shall, to the
extent permissible by law, be a lien on the Mortgaged Property prior to any
right, title to, interest in or claim upon the Mortgaged Property attaching or
accruing subsequent to the recording of this Mortgage and shall be secured by
this Mortgage to the extent permitted by law. Any payment of amounts due to
Mortgagee under this Mortgage not made on or before the due date for such
payments shall accrue interest daily without notice from the due date until paid
at the Default Interest Rate, and such interest at the Default Interest Rate
shall be immediately due upon demand by Mortgagee.
SECTION 1.03. Payment of Taxes, Liens and Charges. (a) Except as may be
permitted by Section 5.03 of the Credit Agreement, Mortgagor will pay and
discharge from time to time prior to the time when the same shall become
delinquent, and before any interest or penalty accrues thereon or attaches
thereto, all taxes of every kind and nature, all general and special
assessments, levies, permits, inspection and license fees, all water and sewer
rents, all vault charges, and all other public charges, and all service charges,
common area charges, private maintenance charges, utility charges and all other
private charges, whether of a like or different nature, imposed upon or assessed
against the Mortgaged Property or any part thereof or upon the Rents from the
Mortgaged Property or arising in respect of the occupancy, use or possession
thereof.
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(b) In the event of the passage of any state, Federal, municipal or other
governmental law, order, rule or regulation subsequent to the date hereof (i)
deducting from the value of real property for the purpose of taxation any lien
or encumbrance thereon or in any manner changing or modifying the laws now in
force governing the taxation of this Mortgage or debts secured by mortgages or
deeds of trust (other than laws governing income, franchise and similar taxes
generally) or the manner of collecting taxes thereon and (ii) imposing a tax to
be paid by Mortgagee, either directly or indirectly, on this Mortgage or any of
the Loan Documents or requiring an amount of taxes to be withheld or deducted
therefrom, Mortgagor will promptly notify Mortgagee of such event. In such event
Mortgagor shall (i) agree to enter into such further instruments as may be
reasonably necessary or desirable to obligate Mortgagor to make any applicable
additional payments and (ii) make such additional payments.
(c) At any time that an Event of Default shall occur hereunder and be
continuing, or if required by any law applicable to Mortgagor or to Mortgagee,
Mortgagee shall have the right to direct Mortgagor to make an initial deposit on
account of real estate taxes and assessments, insurance premiums and common area
charges, levied against or payable in respect of the Mortgaged Property in
advance and thereafter semi-annually, each such deposit to be equal to one-half
of any such annual charges estimated in a reasonable manner by Mortgagee in
order to accumulate with Mortgagee sufficient funds to pay such taxes,
assessments, insurance premiums and charges when the same are due and payable.
SECTION 1.04. Payment of Closing Costs. Mortgagor shall pay all costs in
connection with, relating to or arising out of the preparation, execution and
recording of this Mortgage, including title company premiums and charges,
inspection costs, survey costs, recording fees and taxes which are due,
reasonable attorneys', engineers', appraisers' and consultants' fees and
disbursements and all other similar reasonable expenses of every kind.
SECTION 1.05. Alterations and Waste; Plans. (a) Except as may be permitted
under the Credit Agreement, no Improvements will be materially altered in a way
which will materially interfere with the operation of such Improvements or
demolished or removed in whole or in part by Mortgagor. Mortgagor will not erect
any additions to the existing Improvements or other structures on the Premises
which will materially interfere with the operation conducted thereon on the date
hereof, without the written consent of Mortgagee. Mortgagor will not commit any
waste on the Mortgaged Property or make any alteration to, or change in the use
of, the Mortgaged Property that will diminish the utility thereof for the
operation of the business except as may be permitted under the Credit Agreement
or materially increase any ordinary fire or other hazard arising out of
construction or operation, but in no event shall any such alteration or change
be contrary to the terms of any insurance policy required to be kept pursuant to
Section 1.06. Mortgagor will maintain and operate the Improvements and Personal
Property in good repair, working order and condition, reasonable wear and tear
excepted (notwithstanding the terms of Section 5.01 of the Credit Agreement).
(b) To the extent the same exist on the date hereof or are obtained in
connection with future permitted alterations, Mortgagor shall maintain a
complete set of final plans, specifications, blueprints and drawings for the
Mortgaged Property either at the Mortgaged Property or in a particular office at
the headquarters of Mortgagor to which Mortgagee shall have access upon
reasonable advance notice and at reasonable times.
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SECTION 1.06. Insurance. Mortgagor will keep or cause to be kept the
Improvements and Personal Property insured against such risks, and in the
manner, required by Section 5.02 of the Credit Agreement.
SECTION 1.07. Casualty; Condemnation. (a) Notwithstanding any other
provision of this Mortgage, the Credit Agreement or the Security Documents, the
Mortgagee is authorized, at its option (for the benefit of the Secured Parties),
to collect and receive, to the extent payable to the Mortgagor or any other Loan
Party, all insurance proceeds, damages, claims and rights of action under any
insurance policies with respect to any casualty or other insured damage
("Casualty") to any portion of any Mortgaged Property (collectively, "Insurance
Proceeds"), unless the amount of the related Insurance Proceeds is less than
$1,000,000 and an Event of Default shall not have occurred and be continuing.
The Mortgagor agrees to notify the Mortgagee and the Administrative Agent, in
writing, promptly after the Mortgagor obtains notice or knowledge of any
Casualty to a Mortgaged Property, which notice shall set forth a description of
such Casualty and the Mortgagor's good faith estimate of the amount of related
damages. The Mortgagor agrees, subject to the foregoing limitations, to endorse
and transfer or cause to be endorsed or transferred any Insurance Proceeds
received by it or any other Loan Party to the Mortgagee.
(b) The Mortgagor will notify the Mortgagee and the Administrative Agent
immediately upon obtaining knowledge of the institution of any action or
proceeding for the taking of the Mortgaged Property, or any part thereof or
interest therein, for public or quasi-public use under the power of eminent
domain, by reason of any public improvement or condemnation proceeding, or in
any other manner (a "Condemnation"). No settlement or compromise of any claim in
connection with any such action or proceeding shall be made without the consent
of the Mortgagee, which consent shall not be unreasonably withheld. The
Mortgagee is authorized, at its option (for the benefit of the Secured Parties),
to collect and receive all proceeds of any such Condemnation (in each case, the
"Condemnation Proceeds"). The Mortgagor agrees to execute or cause to be
executed such further assignments of any Condemnation Proceeds as the Mortgagee
may reasonably require.
(c) In the event of any Condemnation of the Mortgaged Property, or any
part thereof and subject to the provisions of paragraph (e) below, the Mortgagee
shall apply the Condemnation Proceeds first, in the case of a partial
Condemnation, to the repair or restoration of any integrated structure subject
to such Condemnation or, in the case of a total or "substantially all"
Condemnation, to the location of a replacement property, acquisition of such
replacement property and construction of the replacement structures, and second,
shall apply the remainder of such Condemnation Proceeds (less the reasonable
costs, if any, incurred by the Mortgagee in the recovery of such Condemnation
Proceeds) to prepay obligations outstanding under the Credit Agreement, with any
remaining Condemnation Proceeds being returned to the Mortgagor.
(d) In the event of any Casualty of less than 50% of the useable square
footage of the improvements of the Mortgaged Property, the Mortgagor shall,
subject to the conditions contained in paragraph (e), restore the Mortgaged
Property to substantially its same condition immediately prior to such Casualty.
In the event of any Casualty of greater than 50% of the useable square footage
of the improvements of the Mortgaged Property and so long as no Default or Event
of Default has occurred and is continuing, the Mortgagee shall require the
Mortgagor to either:
(i) restore the Mortgaged Property to a condition substantially
similar to its condition immediately prior to such Casualty, provided that
the Mortgagor, promptly deposits any excess
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Insurance Proceeds in a cash collateral account established with the
Mortgagee for the benefit of the Secured Parties, or
(ii) to apply the related Net Insurance Proceeds (as defined in the
last sentence of the next succeeding paragraph) towards prepayment of the
Obligations with any remaining Insurance Proceeds being returned to the
Mortgagor.
If the Mortgagor shall be required to restore the Mortgaged Property, the
insufficiency of any Insurance Proceeds or Condemnation Proceeds to defray the
entire expense of such restoration shall in no way relieve the Mortgagor of such
obligation so to restore. In the event the Mortgagor shall be required to
restore, the Mortgagor shall diligently and continuously prosecute the
restoration of the Mortgaged Property to completion. In addition, there shall
first be allowed to the Mortgagor out of the related Insurance Proceeds, an
amount sufficient to, and the Mortgagor shall be required to, place the
remaining portion, if any, of the Mortgaged Property in a safe condition that is
otherwise in compliance with the requirements of applicable Governmental
Authorities and the provisions of the Credit Agreement and this Mortgage, and
the balance of such related Insurance Proceeds (the "Net Insurance Proceeds")
shall constitute the Net Insurance Proceeds to be applied in clause (ii) above.
(e) Except as otherwise specifically provided in this Section 1.07, all
Insurance Proceeds and all Condemnation Proceeds recovered by the Mortgagee (A)
are to be applied to the restoration of the Mortgaged Property (less the
reasonable cost, if any, to the Mortgagee of such recovery and of paying out
such proceeds, including reasonable attorneys' fees, other charges and
disbursements and costs allocable to inspecting the Work (as defined below)) and
(B) shall be applied by the Mortgagee to the payment of the cost of restoring or
replacing the Mortgaged Property so damaged, destroyed or taken or of the
portion or portions of the Mortgaged Property not so taken (the "Work") and (C)
shall be paid out from time to time to the Mortgagor as and to the extent the
Work (or the location and acquisition of any replacement of any Mortgaged
Property) progresses for the payment thereof, but subject to each of the
following conditions:
(i) the Mortgagor must promptly commence the restoration process or
the location, acquisition and replacement process (in the case of a total
or "substantially all" Condemnation) in connection with the Mortgaged
Property;
(ii) the Work shall be in the charge of an architect or engineer and
before the Mortgagor commences any Work, other than temporary work to
protect property or prevent interference with business, the Mortgagee
shall have received the plans and specifications and the general contract
for the Work from the Mortgagor. The plans and specifications shall
provide for such Work that, upon completion thereof, the improvements
shall (A) be in compliance with all requirements of applicable
Governmental Authorities such that all representations and warranties of
the Mortgagor relating to the compliance of the Mortgaged Property with
applicable laws, rules or regulations in this Mortgage, the Credit
Agreement or the Security Documents will be correct in all respects and
(B) be at least equal in value and general utility to the improvements
that were on the Mortgaged Property (or that were on the Mortgaged
Property that has been replaced, if applicable) prior to the Casualty or
Taking, and in the case of a Taking, subject to the effect of such Taking;
(iii) except as provided in (iv) below, each request for payment
shall be made on seven days' prior notice to the Mortgagee and shall be
accompanied by a certificate to be made by such architect or engineer,
stating (A) that all the Work completed has been done in substantial
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compliance with the plans and specifications, (B) that the sum requested
is justly required to reimburse the Mortgagor for payments by the
Mortgagor to, or is justly due to, the contractor, subcontractors,
materialmen, laborers, engineers, architects or other persons rendering
services or materials for the Work (giving a brief description of such
services and materials) and that, when added to all sums previously paid
out by the Mortgagee, does not exceed the value of the Work done to the
date of such certificate;
(iv) each request for payment in connection with the acquisition of
a replacement Mortgaged Property (in the case of a total or "substantially
all" Condemnation) shall be made on 30 days' prior notice to the Mortgagee
and, in connection therewith, (A) each such request shall be accompanied
by a copy of the sales contract or other document governing the
acquisition of the replacement property by the Mortgagor and a certificate
of the Mortgagor stating that the sum requested represents the sales price
under such contract or document and the related reasonable transaction
fees and expenses (including brokerage fees) and setting forth in
sufficient detail the various components of such requested sum and (B) the
Mortgagor shall (I) in addition to any other items required to be
delivered under this Section 1.07), provide the Administrative Agent and
the Mortgagee with such opinions, documents, certificates, title insurance
policies, surveys and other insurance policies as they may reasonably
request and (II) take such other actions as the Administrative Agent and
the Mortgagee may reasonably deem necessary or appropriate (including
actions with respect to the delivery to the Mortgagee of a first priority
Mortgage with respect to such real property for the ratable benefit of the
Secured Parties);
(v) each request shall be accompanied by waivers of lien
satisfactory to the Mortgagee covering that part of the Work for which
payment or reimbursement is being requested and, if required by the
Mortgagee, by a search prepared by a title company or licensed abstractor
or by other evidence satisfactory to the Mortgagee, that there has not
been filed with respect to the Mortgaged Property any mechanics' or other
lien or instrument for the retention of title in respect of any part of
the Work not discharged of record or bonded to the reasonable satisfaction
of the Mortgagee;
(vi) there shall be no Default or Event of Default that has occurred
and is continuing;
(vii) the request for any payment after the Work has been completed
shall be accompanied by a copy of any certificate or certificates required
by law to render occupancy of the improvements being rebuilt, repaired or
restored legal; and
(viii) after commencing the Work, the Mortgagor shall continue to
perform the Work diligently and in good faith to completion in accordance
with the approved plans and specifications.
Upon completion of the Work and payment in full therefor, the Mortgagee will
disburse to the Mortgagor the amount of any Insurance Proceeds or Condemnation
Proceeds then or thereafter in the hands of the Mortgagee on account of the
Casualty or Taking that necessitated such Work to be applied (x) to prepay
obligations outstanding under the Credit Agreement, with any excess being
returned to the Mortgagor, or (y) to be reinvested in the Mortgagor's principal
lines of business within 180 days after the receipt thereof, provided that the
Mortgagor, pending such reinvestment, promptly deposits such amounts in a cash
collateral account established with the Mortgagee for the benefit of the Secured
Parties.
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(f) Notwithstanding any other provisions of this Section 1.07, if the
Mortgagor shall have elected to replace the Mortgaged Property in connection
with a total or "substantially all" Condemnation as contemplated in paragraph
(c) above, all Condemnation Proceeds held by the Mortgagee in connection
therewith shall be applied to prepay obligations outstanding under the Credit
Agreement if (i) the Mortgagor notifies the Mortgagee and the Administrative
Agent that it does not intend to replace the Mortgaged Property, (ii) a
Responsible Officer of the Mortgagor shall not have notified the Administrative
Agent and the Mortgagee in writing that the Mortgagor has acquired or has
entered into a binding contract to acquire land upon which it will construct the
replacement property within six months after the Condemnation or (iii) the
Mortgagor shall have not notified the Administrative Agent and the Mortgagee in
writing that it has begun construction of the replacement structures within one
year after the related Condemnation.
(g) Nothing in this Section 1.07 shall prevent the Mortgagee from applying
at any time all or any part of the Insurance Proceeds or Condemnation Proceeds
to (i) the curing of any Event of Default under the Credit Agreement or (ii) the
payment of any of the Obligations after the occurrence and during the
continuance of an Event of Default.
SECTION 1.08. Assignment of Leases and Rents. (a) Mortgagor hereby
irrevocably and absolutely grants, transfers and assigns all of its right title
and interest in all Leases, together with any and all extensions and renewals
thereof for purposes of securing and discharging the performance by Mortgagor of
the Obligations. Mortgagor has not assigned or executed any assignment of, and
will not assign or execute any assignment of, any other Lease or their
respective Rents to anyone other than Mortgagee.
(b) Without Mortgagee's prior written consent, Mortgagor will not (i)
modify, amend, terminate or consent to the cancellation or surrender of any
Lease if such modification, amendment, termination or consent would, in the
reasonable judgment of the Mortgagee, be adverse in any material respect to the
interests of the Lenders, the value of the Mortgaged Property or the lien
created by this Mortgage or (ii) consent to an assignment of any tenant's
interest in any Lease or to a subletting thereof covering a material portion of
the Mortgaged Property.
(c) Subject to Section 1.08(d), Mortgagor has assigned and transferred to
Mortgagee all of Mortgagor's right, title and interest in and to the Rents now
or hereafter arising from each Lease
heretofore or hereafter made or agreed to by Mortgagor, it being intended that
this assignment establish, subject to Section 1.08(d), an absolute transfer and
assignment of all Rents and all Leases to Mortgagee and not merely to grant a
security interest therein. Subject to Section 1.08(d), Mortgagee may in
Mortgagor's name and stead (with or without first taking possession of any of
the Mortgaged Property personally or by receiver as provided herein) operate the
Mortgaged Property and rent, lease or let all or any portion of any of the
Mortgaged Property to any party or parties at such rental and upon such terms as
Mortgagee shall, in its sole discretion, determine, and may collect and have the
benefit of all of said Rents arising from or accruing at any time thereafter or
that may thereafter become due under any Lease.
(d) So long as an Event of Default shall not have occurred and be
continuing, Mortgagee will not exercise any of its rights under Section 1.08(c),
and Mortgagor shall receive and collect the Rents accruing under any Lease; but
after the happening and during the continuance of any Event of Default,
Mortgagee may, at its option, receive and collect all Rents and enter upon the
Premises and Improvements through its officers, agents, employees or attorneys
for such purpose and for the operation and maintenance thereof. Mortgagor hereby
irrevocably authorizes and directs each tenant, if any, and each successor, if
any, to the interest of any tenant under any Lease, respectively, to rely upon
any notice of a claimed Event of Default
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sent by Mortgagee to any such tenant or any of such tenant's successors in
interest, and thereafter to pay Rents to Mortgagee without any obligation or
right to inquire as to whether an Event of Default actually exists and even if
some notice to the contrary is received from the Mortgagor, who shall have no
right or claim against any such tenant or successor in interest for any such
Rents so paid to Mortgagee. Each tenant or any of such tenant's successors in
interest from whom Mortgagee or any officer, agent, attorney or employee of
Mortgagee shall have collected any Rents, shall be authorized to pay Rents to
Mortgagor only after such tenant or any of their successors in interest shall
have received written notice from Mortgagee that the Event of Default is no
longer continuing, unless and until a further notice of an Event of Default is
given by Mortgagee to such tenant or any of its successors in interest.
(e) Mortgagee will not become a mortgagee in possession so long as it does
not enter or take actual possession of the Mortgaged Property. In addition,
Mortgagee shall not be responsible or liable for performing any of the
obligations of the landlord under any Lease, for any waste by any tenant, or
others, for any dangerous or defective conditions of any of the Mortgaged
Property, for negligence in the management, upkeep, repair or control of any of
the Mortgaged Property or any other act or omission by any other person.
(f) Mortgagor shall furnish to Mortgagee, within 30 days after a request
by Mortgagee to do so, a written statement containing the names of all tenants,
subtenants and concessionaires of the Premises or Improvements, the terms of any
Lease, the space occupied and the rentals or license fees payable thereunder.
SECTION 1.09. Restrictions on Transfers and Encumbrances. Except as
permitted by the Credit Agreement, Mortgagor shall not directly or indirectly
sell, convey, alienate, assign, lease, sublease, license, mortgage, pledge,
encumber or otherwise transfer, create, consent to or suffer the creation of any
lien, charges or any form of encumbrance upon any interest in or any part of the
Mortgaged Property, or be divested of its title to the Mortgaged Property or any
interest therein in any manner or way, whether voluntarily or involuntarily
(other than resulting from a Condemnation), or engage in any common,
cooperative, joint, time-sharing or other congregate ownership of all or part
thereof; provided, however, that Mortgagor may in the ordinary course of
business within reasonable commercial standards, enter into easement or covenant
agreements that relate to and/or benefit the operation of the Mortgaged Property
and that do not materially or adversely affect the use and operation of the same
(except for customary utility easements that service the Mortgaged Property,
which are permitted).
SECTION 1.10. Security Agreement. This Mortgage is both a mortgage of real
property and a grant of a security interest in personal property, and shall
constitute and serve as a "Security Agreement" within the meaning of the uniform
commercial code as adopted in the state wherein the Premises are located.
Mortgagor has hereby granted unto Mortgagee a security interest in and to all
the Mortgaged Property described in this Mortgage that is not real property, and
simultaneously with the recording of this Mortgage, Mortgagor has filed or will
file UCC financing statements, and will file continuation statements prior to
the lapse thereof, at the appropriate offices in the state in which the Premises
are located to perfect the security interest granted by this Mortgage in all the
Mortgaged Property that is not real property. Mortgagor hereby appoints
Mortgagee as its true and lawful attorney-in-fact and agent, for Mortgagor and
in its name, place and stead, in any and all capacities, to execute any document
and to file the same in the appropriate offices (to the extent it may lawfully
do so), and to perform each and every act and thing reasonably requisite and
necessary to be done to perfect the security interest contemplated by the
preceding sentence. Mortgagee shall have all rights with respect to the part of
the Mortgaged Property that is the
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subject of a security interest afforded by the uniform commercial code as
adopted in the state wherein the Premises are located in addition to, but not in
limitation of, the other rights afforded Mortgagee hereunder and under the
Security Agreement.
SECTION 1.11. Filing and Recording. Mortgagor will cause this Mortgage,
any other security instrument creating a security interest in or evidencing the
lien hereof upon the Mortgaged Property and each instrument of further assurance
to be filed, registered or recorded in such manner and in such places as may be
required by any present or future law in order to publish notice of and fully to
protect the lien hereof upon, and the security interest of Mortgagee in, the
Mortgaged Property. Mortgagor will pay all filing, registration or recording
fees, and all reasonable expenses incidental to the execution and acknowledgment
of this Mortgage, any mortgage supplemental hereto, any security instrument with
respect to the Personal Property, and any instrument of further assurance and
all Federal, state, county and municipal recording, documentary or intangible
taxes and other taxes, duties, imposts, assessments and charges arising out of
or in connection with the execution, delivery and recording of this Mortgage,
any mortgage supplemental hereto, any security instrument with respect to the
Personal Property or any instrument of further assurance.
SECTION 1.12. Further Assurances. Upon demand by Mortgagee, Mortgagor
will, at the cost of Mortgagor and without expense to Mortgagee, do, execute,
acknowledge and deliver all such further acts, deeds, conveyances, mortgages,
assignments, notices of assignment, transfers and assurances as Mortgagee shall
from time to time reasonably require for the better assuring, conveying,
assigning, transferring and confirming unto Mortgagee the property and rights
hereby conveyed or assigned or intended now or hereafter so to be, or which
Mortgagor may be or may hereafter become bound to convey or assign to Mortgagee,
or for carrying out the intention or facilitating the performance of the terms
of this Mortgage, or for filing, registering or recording this Mortgage, and on
demand, Mortgagor will also execute and deliver and hereby appoints Mortgagee as
its true and lawful attorney-in-fact and agent, for Mortgagor and in its name,
place and stead, in any and all capacities, to execute and file to the
extent it may lawfully do so, one or more financing statements, chattel
mortgages or comparable security instruments reasonably requested by Mortgagee
to evidence more effectively the lien hereof upon the Personal Property and to
perform each and every act and thing requisite and necessary to be done to
accomplish the same.
SECTION 1.13. Additions to Mortgaged Property. All right, title and
interest of Mortgagor in and to all extensions, improvements, betterments,
renewals, substitutes and replacements of, and all additions and appurtenances
to, the Mortgaged Property hereafter acquired by or released to Mortgagor or
constructed, assembled or placed by Mortgagor upon the Premises or the
Improvements, and all conversions of the security constituted thereby,
immediately upon such acquisition, release, construction, assembling, placement
or conversion, as the case may be, and in each such case without any further
mortgage, conveyance, assignment or other act by Mortgagor, shall become subject
to the lien and security interest of this Mortgage as fully and completely and
with the same effect as though now owned by Mortgagor and specifically described
in the grant of the Mortgaged Property above, but at any and all times Mortgagor
will execute and deliver to Mortgagee any and all such further assurances,
mortgages, conveyances or assignments thereof as Mortgagee may reasonably
require for the purpose of expressly and specifically subjecting the same to the
lien and security interest of this Mortgage.
SECTION 1.14. No Claims Against Mortgagee. Nothing contained in this
Mortgage shall constitute any consent or request by Mortgagee, express or
implied, for the performance of any labor or services or the furnishing of any
materials or other property in respect of the Mortgaged Property or any
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part thereof, nor as giving Mortgagor any right, power or authority to contract
for or permit the performance of any labor or services or the furnishing of any
materials or other property in such fashion as would permit the making of any
claim against Mortgagee in respect thereof.
SECTION 1.15. Fixture Filing. Certain of the Mortgaged Property is or will
become "fixtures" (as that term is defined in the UCC) on the Land, and this
Mortgage upon being filed for record in the real estate records of the county
wherein such fixtures are situated shall operate also as a financing statement
filed as a fixture filing in accordance with the applicable provisions of said
UCC upon such of the Mortgaged Property that is or may become fixtures.
ARTICLE II
Defaults and Remedies
SECTION 2.01. Events of Default. It shall be an Event of Default under
this Mortgage if any Event of Default (as therein defined) shall exist pursuant
to the Credit Agreement.
SECTION 2.02. Demand for Payment. If an Event of Default as set forth
herein shall occur and be continuing, then, upon written demand of Mortgagee,
Mortgagor will pay to Mortgagee all amounts due hereunder and such further
amount as shall be sufficient to cover the costs and expenses of collection,
including attorneys' fees, disbursements and expenses incurred by Mortgagee and
Mortgagee shall be entitled and empowered to institute an action or proceedings
at law or in equity for the collection of the sums so due and unpaid, to
prosecute any such action or proceedings to judgment or final decree, to enforce
any such judgment or final decree against Mortgagor and to collect, in any
manner provided by law, all moneys adjudged or decreed to be payable.
SECTION 2.03. Rights To Take Possession, Operate and Apply Revenues. (a)
To the extent permitted by applicable law, if an Event of Default shall occur
and be continuing, Mortgagor shall, upon demand of Mortgagee, forthwith
surrender to Mortgagee actual possession of the Mortgaged Property and, if and
to the extent permitted by law, Mortgagee itself, or by such officers or agents
as it may appoint, may then enter and take possession of all the Mortgaged
Property without the appointment of a receiver or an application therefor,
exclude Mortgagor and its agents and employees wholly therefrom, and have access
to the books, papers and accounts of Mortgagor.
(b) To the extent permitted by applicable law, if Mortgagor shall for any
reason fail to surrender or deliver the Mortgaged Property or any part thereof
after such demand by Mortgagee, Mortgagee may obtain a judgment or decree
conferring upon Mortgagee the right to immediate possession or requiring
Mortgagor to deliver immediate possession of the Mortgaged Property to
Mortgagee, to the entry of which judgment or decree Mortgagor hereby
specifically consents. Mortgagor will pay to Mortgagee, upon demand, all
reasonable expenses of obtaining such judgment or decree, including reasonable
compensation to Mortgagee's attorneys and agents with interest thereon at the
Default Interest Rate; and all such expenses and compensation shall, until paid,
be secured by this Mortgage.
(c) To the extent permitted by applicable law, upon every such entry or
taking of possession, Mortgagee may hold, store, use, operate, manage and
control the Mortgaged Property, conduct the business thereof and, from time to
time, (i) make all necessary and proper maintenance, repairs, renewals,
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replacements, additions, betterments and improvements thereto and thereon, (ii)
purchase or otherwise acquire additional fixtures, personalty and other
property, (iii) insure or keep the Mortgaged Property insured, (iv) manage and
operate the Mortgaged Property and exercise all the rights and powers of
Mortgagor to the same extent as Mortgagor could in its own name or otherwise
with respect to the same, or (v) enter into any and all agreements with respect
to the exercise by others of any of the powers herein granted Mortgagee, all as
may from time to time be directed or determined by Mortgagee to be in its best
interest and Mortgagor hereby appoints Mortgagee as its true and lawful
attorney-in-fact and agent, for Mortgagor and in its name, place and stead, in
any and all capacities, to perform any of the foregoing acts. Mortgagee may
collect and receive all the Rents, issues, profits and revenues from the
Mortgaged Property, including those past due as well as those accruing
thereafter, and, after deducting (i) all expenses of taking, holding, managing
and operating the Mortgaged Property (including compensation for the services of
all persons employed for such purposes), (ii) the costs of all such maintenance,
repairs, renewals, replacements, additions, betterments, improvements, purchases
and acquisitions, (iii) the costs of insurance, (iv) such taxes, assessments and
other similar charges as Mortgagee may at its option pay, (v) other proper
charges upon the Mortgaged Property or any part thereof and (vi) the
compensation, expenses and disbursements of the attorneys and agents of
Mortgagee, Mortgagee shall apply the remainder of the moneys and proceeds so
received first to the payment of the Mortgagee for the satisfaction of the
Obligations, and second, if there is any surplus, to Mortgagor, subject to the
entitlement of others thereto under applicable law.
(d) To the extent permitted by applicable law, whenever, before any sale
of the Mortgaged Property under Section 2.06, all Obligations that are then due
shall have been paid and all Events of Default fully cured, Mortgagee will
surrender possession of the Mortgaged Property back to Mortgagor, its successors
or assigns. The same right of taking possession shall, however, arise again if
any subsequent Event of Default shall occur and be continuing.
SECTION 2.04. Right To Cure Mortgagor's Failure to Perform. After any
Event of Default at anytime (without requiring future notice) should Mortgagor
fail in the payment, performance or observance of any term, covenant or
condition required by this Mortgage or the Credit Agreement (with respect to the
Mortgaged Property), Mortgagee may pay, perform or observe the same, and all
payments made or costs or expenses incurred by Mortgagee in connection therewith
shall be secured hereby and shall be, without demand, immediately repaid by
Mortgagor to Mortgagee with interest thereon at the Default Interest Rate.
Mortgagee shall be the judge using reasonable discretion of the necessity for
any such actions and of the amounts to be paid. Mortgagee is hereby empowered to
enter and to authorize others to enter upon the Premises or the Improvements or
any part thereof for the purpose of performing or observing any such defaulted
term, covenant or condition without having any obligation to so perform or
observe and without thereby becoming liable to Mortgagor, to any person in
possession holding under Mortgagor or to any other person.
SECTION 2.05. Right to a Receiver. If an Event of Default shall occur and
be continuing, Mortgagee, upon application to a court of competent jurisdiction,
shall be entitled as a matter of right to the appointment of a receiver to take
possession of and to operate the Mortgaged Property and to collect and apply the
Rents. The receiver shall have all of the rights and powers permitted under the
laws of the state wherein the Mortgaged Property is located. Mortgagor shall pay
to Mortgagee upon demand all reasonable expenses, including receiver's fees,
reasonable attorney's fees and disbursements, costs and agent's compensation
incurred pursuant to the provisions of this Section 2.05; and all such expenses
shall
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be secured by this Mortgage and shall be, without demand, immediately
repaid by Mortgagor to Mortgagee with interest thereon at the Default Interest
Rate.
SECTION 2.06. Foreclosure and Sale. (a) If an Event of Default shall occur
and be continuing, Mortgagee may elect to sell the Mortgaged Property or any
part of the Mortgaged Property by exercise of the power of foreclosure or of
sale granted to Mortgagee by applicable law or this Mortgage. In such case,
Mortgagee may commence a civil action to foreclose this Mortgage, or it may
proceed and sell the Mortgaged Property to satisfy any Obligation. Mortgagee or
an officer appointed by a judgment of foreclosure to sell the Mortgaged
Property, may sell all or such parts of the Mortgaged Property as may be chosen
by Mortgagee at the time and place of sale fixed by it in a notice of sale,
either as a whole or in separate lots, parcels or items as Mortgagee shall deem
expedient, and in such order as it may determine, at public auction to the
highest bidder. Mortgagee or an officer appointed by a judgment of foreclosure
to sell the Mortgaged Property may postpone any foreclosure or other sale of all
or any portion of the Mortgaged Property by public announcement at such time and
place of sale, and from time to time thereafter may postpone such sale by public
announcement or subsequently noticed sale. Without further notice, Mortgagee or
an officer appointed to sell the Mortgaged Property may make such sale at the
time fixed by the last postponement, or may, in its discretion, give a new
notice of sale. Any person, including Mortgagor or Mortgagee or any designee or
affiliate thereof, may purchase at such sale.
(b) The Mortgaged Property may be sold subject to unpaid taxes and
Permitted Encumbrances, and, after deducting all costs, fees and expenses of
Mortgagee (including costs of evidence of title in connection with the sale),
Mortgagee or an officer that makes any sale shall apply the proceeds of sale in
the manner set forth in Section 2.08.
(c) Any foreclosure or other sale of less than the whole of the Mortgaged
Property or any defective or irregular sale made hereunder shall not exhaust the
power of foreclosure provided for herein; and subsequent sales may be made
hereunder until the Obligations have been satisfied, or the entirety of the
Mortgaged Property has been sold.
(d) If an Event of Default shall occur and be continuing, Mortgagee may
instead of, or in addition to, exercising the rights described in Section
2.06(a) above and either with or without entry or taking possession as herein
permitted, proceed by a suit or suits in law or in equity or by any other
appropriate proceeding or remedy (i) to specifically enforce payment of some or
all of the Obligations, or the performance of any term, covenant, condition or
agreement of this Mortgage or any other Loan Document or any other right, or
(ii) to pursue any other remedy available to it, all as Mortgagee shall
determine most effectual for such purposes.
SECTION 2.07. Other Remedies. (a) In case an Event of Default shall occur
and be continuing, Mortgagee may also exercise, to the extent not prohibited by
law, any or all of the remedies available to a secured party under the uniform
commercial code of the State wherein the Premises are located, including, to the
extent not prohibited by applicable law.
(b) In connection with a sale of the Mortgaged Property or any Personal
Property and the application of the proceeds of sale as provided in Section
2.08, Mortgagee shall be entitled to enforce payment of and to receive up to the
principal amount of the Obligations, plus all other charges, payments and costs
due under this Mortgage, and to recover a deficiency judgment for any portion of
the aggregate principal amount of the Obligations remaining unpaid, with
interest.
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SECTION 2.08. Application of Sale Proceeds and Rents. After any
foreclosure sale of all or any of the Mortgaged Property, Mortgagee shall
receive the proceeds of sale, no purchaser shall be required to see to the
application of the proceeds and Mortgagee shall apply the proceeds of the sale
together with any Rents that may have been collected and any other sums that
then may be held by Mortgagee under this Mortgage as follows:
FIRST, to the payment of the costs and expenses of such sale,
including compensation to Mortgagee's attorneys and agents, and of any
judicial proceedings wherein the same may be made, and of all expenses,
liabilities and advances made or incurred by Mortgagee under this
Mortgage, together with interest at the Default Interest Rate on all
advances made by Mortgagee, including all taxes or assessments (except any
taxes, assessments or other charges subject to which the Mortgaged
Property shall have been sold) and the cost of removing any Permitted
Encumbrance (except any Permitted Encumbrance subject to which the
Mortgaged Property was sold);
SECOND, to the Mortgagee for the distribution to the Secured Parties
for the satisfaction of the Obligations owed to the Secured Parties; and
THIRD, to the Mortgagor, its successors or assigns, or as a court of
competent jurisdiction may otherwise direct.
The Mortgagee shall have absolute discretion as to the time of application of
any such proceeds, moneys or balances in accordance with this Mortgage. Upon any
sale of the Mortgaged Property by the Mortgagee (including pursuant to a power
of sale granted by statute or under a judicial proceeding), the receipt of the
purchase money paid over to the Mortgagee or the officer making the sale shall
be a sufficient discharge to the purchaser or purchasers of the Mortgaged
Property so sold and such purchaser or purchasers shall not be obligated to see
to the application of any part of the purchase money paid over to the Mortgagee
or such officer or be answerable in any way for the misapplication thereof.
SECTION 2.09. Mortgagor as Tenant Holding Over. If Mortgagor remains in
possession of any of the Mortgaged Property after any foreclosure sale by
Mortgagee, at Mortgagee's election Mortgagor shall be deemed a tenant holding
over and shall forthwith surrender possession to the purchaser or purchasers at
such sale or be summarily dispossessed or evicted according to provisions of law
applicable to tenants holding over.
SECTION 2.10. Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Mortgagor waives, to the extent not prohibited by law, (i) the
benefit of all laws now existing or that hereafter may be enacted providing for
any appraisement of any portion of the Mortgaged Property, (ii) the benefit of
all laws now existing or that may be hereafter enacted in any way extending the
time for the enforcement or the collection of amounts due under any of the
Obligations or creating or extending a period of redemption from any sale made
in collecting said debt or any other amounts due Mortgagee, (iii) any right to
at any time insist upon, plead, claim or take the benefit or advantage of any
law now or hereafter in force providing for any appraisement, valuation, stay,
extension or redemption, or sale of the Mortgaged Property as separate tracts,
units or estates or as a single parcel in the event of foreclosure, and (iv) all
rights of redemption, valuation, appraisement, stay of execution, notice of
election to mature or declare due the whole of or each of the Obligations and
marshalling in the event of foreclosure of this Mortgage.
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SECTION 2.11. Discontinuance of Proceedings. In case Mortgagee shall
proceed to enforce any right, power or remedy under this Mortgage by
foreclosure, entry or otherwise, and such proceedings shall be discontinued or
abandoned for any reason, or shall be determined adversely to Mortgagee, then
and in every such case Mortgagor and Mortgagee shall be restored to their former
positions and rights hereunder, and all rights, powers and remedies of Mortgagee
shall continue as if no such proceeding had been taken.
SECTION 2.12. Suits To Protect the Mortgaged Property. Mortgagee shall
have power (a) to institute and maintain suits and proceedings to prevent any
impairment of the Mortgaged Property by any acts that may be unlawful or in
violation of this Mortgage, (b) to preserve or protect its interest in the
Mortgaged Property and in the Rents arising therefrom and (c) to restrain the
enforcement of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of or compliance with such enactment, rule or order would impair
the security or be prejudicial to the interest of Mortgagee hereunder.
SECTION 2.13. Filing Proofs of Claim. In case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other proceedings affecting Mortgagor, Mortgagee shall, to the extent permitted
by law, be entitled to file such proofs of claim and other documents as may be
necessary or advisable in order to have the claims of Mortgagee allowed in such
proceedings for the Obligations secured by this Mortgage at the date of the
institution of such proceedings and for any interest accrued, late charges and
additional interest or other amounts due or that may become due and payable
hereunder after such date.
SECTION 2.14. Possession by Mortgagee. Notwithstanding the appointment of
any receiver, liquidator or trustee of Mortgagor, any of its property or the
Mortgaged Property, Mortgagee shall be entitled, to the extent not prohibited by
law, to remain in possession and control of all parts of the Mortgaged Property
now or hereafter granted under this Mortgage to Mortgagee in accordance with the
terms hereof and applicable law.
SECTION 2.15. Waiver. (a) No delay or failure by Mortgagee to exercise any
right, power or remedy accruing upon any breach or Event of Default shall
exhaust or impair any such right, power or remedy or be construed to be a waiver
of any such breach or Event of Default or acquiescence therein; and every right,
power and remedy given by this Mortgage to Mortgagee may be exercised from time
to time and as often as may be deemed expedient by Mortgagee. No consent or
waiver by Mortgagee to or of any breach or default by Mortgagor in the
performance of the Obligations shall be deemed or construed to be a consent or
waiver to or of any other breach or Event of Default in the performance of the
same or any other Obligations by Mortgagor hereunder. No failure on the part of
Mortgagee to complain of any act or failure to act or to declare an Event of
Default, irrespective of how long such failure continues, shall constitute a
waiver by Mortgagee of its rights hereunder or impair any rights, powers or
remedies consequent on any future Event of Default by Mortgagor.
(b) Even if Mortgagee (i) grants some forbearance or an extension of time
for the payment of any sums secured hereby, (ii) takes other or additional
security for the payment of any sums secured hereby, (iii) waives or does not
exercise some right granted herein or under the Loan Documents, (iv) releases a
part of the Mortgaged Property from this Mortgage, (v) agrees to change some of
the terms, covenants, conditions or agreements of any of the Loan Documents,
(vi) consents to the filing of a map, plat or replat affecting the Premises
(vii) consents to the granting of an easement or other right affecting the
Premises or (viii) makes or consents to an agreement subordinating Mortgagee's
lien on the Mortgaged Property
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hereunder; no such act or omission shall preclude Mortgagee from exercising any
other right, power or privilege herein granted or intended to be granted in the
event of any breach or Event of Default then made or of any subsequent default;
nor, except as otherwise expressly provided in an instrument executed by
Mortgagee, shall this Mortgage be altered thereby. In the event of the sale or
transfer by operation of law or otherwise of all or part of the Mortgaged
Property, Mortgagee is hereby authorized and empowered to deal with any vendee
or transferee with reference to the Mortgaged Property secured hereby, or with
reference to any of the terms, covenants, conditions or agreements hereof, as
fully and to the same extent as it might deal with the original parties hereto
and without in any way releasing or discharging any liabilities, obligations or
undertakings.
SECTION 2.16. Remedies Cumulative. No right, power or remedy conferred
upon or reserved to Mortgagee by this Mortgage is intended to be exclusive of
any other right, power or remedy, and each and every such right, power and
remedy shall be cumulative and concurrent and in addition to any other right,
power and remedy given hereunder or now or hereafter existing at law or in
equity or by statute.
ARTICLE III
Miscellaneous
SECTION 3.01. Partial Invalidity. In the event any one or more of the
provisions contained in this Mortgage shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such validity, illegality or
unenforceability shall, at the option of Mortgagee, not affect any other
provision of this Mortgage, and this Mortgage shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein or
therein.
SECTION 3.02. Notices. All notices hereunder shall be in writing and given
in the case of communications and notices to Mortgagor or the Collateral Agent,
as provided in the Credit Agreement.
SECTION 3.03. Successors and Assigns. All of the grants, covenants, terms,
provisions and conditions herein shall run with the Premises and the
Improvements and shall apply to, bind and inure to, the benefit of the permitted
successors and assigns of Mortgagor and the successors and assigns of Mortgagee.
SECTION 3.04. Satisfaction and Cancelation. (a) The conveyance to
Mortgagee created and consummated by this Mortgage shall be null and void when
all the Obligations have been indefeasibly paid in full in accordance with the
terms of the Loan Documents and the Lenders have no further commitment to make
Loans under the Credit Agreement, no Letters of Credit are outstanding and the
Issuing Bank has no further obligation to issue Letters of Credit under the
Credit Agreement.
(b) The lien of this mortgage shall be released from such portion of the
Mortgaged Property as is required pursuant to and in accordance with the
operative provisions of Section 6.05 of the Credit Agreement.
(c) In connection with any termination or release pursuant to paragraph
(a), the Mortgage shall be marked "satisfied" by the Mortgagee, and this
Mortgage shall be canceled of record at the request and at the expense of the
Mortgagor. Mortgagee shall execute any documents reasonably requested by
Mortgagor
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to accomplish the foregoing or to accomplish any release contemplated by
paragraph (a) and Mortgagor will pay all costs and expenses, including
reasonable attorneys' fees, disbursements and other charges, incurred by
Mortgagee in connection with the preparation and execution of such documents.
SECTION 3.05. Definitions. As used in this Mortgage, the singular shall
include the plural as the context requires and the following words and phrases
shall have the following meanings: (a) "including" shall mean "including but not
limited to"; (b) "provisions" shall mean "provisions, terms, covenants and/or
conditions"; (c) "lien" shall mean "lien, charge, encumbrance, security
interest, mortgage or deed of trust"; (d) "obligation" shall mean "obligation,
duty, covenant and/or condition"; and (e) "any of the Mortgaged Property" shall
mean "the Mortgaged Property or any part thereof or interest therein". Any act
that Mortgagee is permitted to perform hereunder may be performed at any time
and from time to time by Mortgagee or any person or entity designated by
Mortgagee. Any act that is prohibited to Mortgagor hereunder is also prohibited
to all lessees of any of the Mortgaged Property. Each appointment of Mortgagee
as attorney-in-fact for Mortgagor under the Mortgage is irrevocable, with power
of substitution and coupled with an interest. Subject to the applicable
provisions hereof, Mortgagee has the right to refuse to grant its consent,
approval or acceptance or to indicate its satisfaction, in its sole discretion,
whenever such consent, approval, acceptance or satisfaction is required
hereunder.
SECTION 3.06. Multisite Real Estate Transaction. Mortgagor acknowledges
that this Mortgage is one of a number of Other Mortgages and Security Documents
that secure the Obligations. Mortgagor agrees that the lien of this Mortgage
shall be absolute and unconditional and shall not in any manner be affected or
impaired by any acts or omissions whatsoever of Mortgagee and without limiting
the generality of the foregoing, the lien hereof shall not be impaired by any
acceptance by the Mortgagee of any security for or guarantees of any of the
Obligations hereby secured, or by any failure, neglect or omission on the part
of Mortgagee to realize upon or protect any Obligation or indebtedness hereby
secured or any collateral security therefor including the Other Mortgages and
other Security Documents. The lien hereof shall not in any manner be impaired or
affected by any release (except as to the property released), sale, pledge,
surrender, compromise, settlement, renewal, extension, indulgence, alteration,
changing, modification or disposition of any of the Obligations secured or of
any of the collateral security therefor, including the Other Mortgages and other
Security Documents or of any guarantee thereof, and Mortgagee may at its
discretion foreclose, exercise any power of sale, or exercise any other remedy
available to it under any or all of the Other Mortgages and other Security
Documents without first exercising or enforcing any of its rights and remedies
hereunder. Such exercise of Mortgagee's rights and remedies under any or all of
the Other Mortgages and other Security Documents shall not in any manner impair
the indebtedness hereby secured or the lien of this Mortgage and any exercise of
the rights or remedies of Mortgagee hereunder shall not impair the lien of any
of the Other Mortgages and other Security Documents or any of Mortgagee's rights
and remedies thereunder. The Mortgagor specifically consents and agrees that
Mortgagee may exercise its rights and remedies hereunder and under the Other
Mortgages and other Security Documents separately or concurrently and in any
order that it may deem appropriate and waives any rights of subrogation.
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ARTICLE IV
Particular Provisions
This Mortgage is subject to the following provisions relating to the
particular laws of the state wherein the Premises are located:
SECTION 4.01. Applicable Law; Certain Particular Provisions. This Mortgage
shall be governed by and construed in accordance with the internal law of the
State of New York; provided, however, that the provisions of this Mortgage
relating to the creation, perfection and enforcement of the lien and security
interest created by this Mortgage in respect of the Mortgaged Property and the
exercise of each remedy provided hereby, including the power of foreclosure or
power of sale procedures set forth in this Mortgage, shall be governed by and
construed in accordance with the internal law of the state where the Mortgaged
Property is located, and Mortgagor and Mortgagee agrees to submit to
jurisdiction and the laying of venue for any suit on this Mortgage in such
state. The terms and provisions set forth in Appendix A attached hereto are
hereby incorporated by reference as though fully set forth herein. In the event
of any conflict between the terms and provisions contained in the body of this
Mortgage and the terms and provisions set forth in Appendix A, the terms and
provisions set forth in Appendix A shall govern and control.
IN WITNESS WHEREOF, this Mortgage has been duly authorized and has been
executed and delivered to Mortgagee by Mortgagor on the date first written
above.
NEENAH FOUNDARY COMPANY,
a Wisconsin corporation,
by_______________________________
Name:
Title:
Attest:
by_______________________________
Name:
Title:
[CORPORATE SEAL]
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[NEED ACKNOWLEDGEMENTS]
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Exhibit A
to the Mortgage Agreement
Legal Description