EXHIBIT E
[State]
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[MORTGAGE] [DEED OF TRUST],
ASSIGNMENT OF LEASES, RENTS AND REVENUES
AND FIXTURE FILING
made by
[__________________],
as Grantor,
to
[________________],
as Trustee
for the benefit of
THE CHASE MANHATTAN BANK,
as Administrative Agent for the Lenders
Dated as of the __ day of ____________, 2001
After recording please return to:
[Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: __________________]
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Table of Contents
Page
Section 1. DEFINITIONS................................................... 5
1.1 Definitions........................................................ 5
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1.2 Other Definitional Provisions...................................... 7
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Section 2. COVENANTS..................................................... 7
2.1 Payment of Taxes................................................... 7
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2.2 Alterations........................................................ 8
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[2.6 Ground Lease......................................................... 10
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Grantor hereby represents, warrants and covenants the following with
respect to the Ground Lease:.............................................. 10
Section 3. FORECLOSURE................................................... 10
3.1 Foreclosure........................................................ 10
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3.2 Grantor's Waivers.................................................. 11
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3.3 Recovery of Advances............................................... 12
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3.4 Sale............................................................... 12
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3.5 Several Parcels.................................................... 12
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3.6 Beneficiary Authorized to Execute Instruments...................... 12
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3.7 Purchase of Mortgaged Property by Beneficiary...................... 13
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3.8 Receipt a Sufficient Discharge to Purchaser........................ 13
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3.9 Waiver of Marshaling, Appraisement, Valuation...................... 13
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3.10 Sale Shall be a Bar Against Grantor................................ 13
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3.11 Application of Sale Proceeds....................................... 14
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Section 4. [THE TRUSTEE.................................................. 14
4.1 Acceptance; Standard of Conflict................................... 14
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4.2 Fees and Expenses.................................................. 14
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4.3 Resignation........................................................ 14
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4.4 Acts of Trustee.................................................... 14
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4.5 Successor Trustee; Substitution.................................... 14
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Section 5. APPOINTMENT OF RECEIVER....................................... 15
Section 6. POSSESSION, MANAGEMENT AND INCOME UPON DEFAULT................ 15
Section 7. RIGHT OF BENEFICIARY TO PERFORM GRANTOR'S COVENANTS........... 16
Section 8. REMEDIES CUMULATIVE........................................... 16
Section 9. GOVERNING LAW................................................. 16
Section 10. NO WAIVER..................................................... 17
Section 11. FINANCING STATEMENT........................................... 17
Section 12. EXPENSES OF BENEFICIARY....................................... 17
12.1 Expenses of Defending the Mortgage................................. 17
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12.2 Expenses of Collection............................................. 18
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Section 13. MISCELLANEOUS................................................. 18
Section 14. NON-MERGER.................................................... 18
Section 15. ASSIGNMENT OF RENTS AND GRANTOR'S INTEREST IN LEASES.......... 18
15.1 Assignment of Leases, Operating Agreements and Tenant Guaranties... 18
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15.2 Application of Proceeds............................................ 19
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15.3 Present Assignment; License of Grantor............................. 20
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15.4 Payment by Tenants................................................. 21
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15.5 No Release......................................................... 21
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15.6 Rights, Powers and Privileges of Beneficiary Irrevocable........... 21
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15.7 No Subordination or Amendment...................................... 22
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15.8 Termination of Assignment.......................................... 22
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15.9 Beneficiary Not Obligated Under Lease, Operating Agreement or
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Tenant Guaranty.................................................... 22
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15.10 Subrogation..................................................... 22
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15.11 Bankruptcy...................................................... 23
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Section 16. STATE SPECIFIC PROVISIONS..................................... 23
16.1 Maximum Amount................................................... 23
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Section 17. NOTICES....................................................... 24
Section 18. WAIVER OF JURY TRIAL; WAIVER OF CLAIMS........................ 25
18.1 Trial by Jury...................................................... 25
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18.2 Submission To Jurisdiction; Waivers................................ 25
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Section 19. SEVERABILITY.................................................. 25
Section 20. LAST DOLLARS SECURED.......................................... 25
Section 21. RELEASES OR RECONVEYANCES..................................... 26
Section 22. FURTHER ASSURANCES............................................ 26
Section 23. [PRIORITY OF FIRST MORTGAGE].................................. 26
Section 24. CONFLICTS WITH CREDIT AGREEMENT............................... 26
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[MORTGAGE] [DEED OF TRUST], ASSIGNMENT OF LEASES, RENTS, AND
REVENUES AND FIXTURE FILING
THIS [MORTGAGE] [DEED OF TRUST], ASSIGNMENT OF LEASES, RENTS, AND
REVENUES AND FIXTURE FILING (this "Mortgage") is dated as of the __ day of
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___________, 2001 and is made by [Federal-Mogul Corporation, a Michigan
corporation] "Grantor"), in consideration of the premises and covenants
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hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, to [_____________], a
[____________] ("Trustee") for the benefit of Wilmington Trust Company, a
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Delaware banking corporation, not individually but solely as trustee ( herein
referred to as "Beneficiary") under the Trust Agreement dated as of December 29,
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2000 (as amended, supplemented and otherwise modified from time to time, the
"New Trust Agreement"), among Grantor, the Subsidiaries (as defined in the
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Credit Agreement) of Grantor a party thereto and Beneficiary.
W I T N E S S E T H:/1/
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WHEREAS, the Grantor was a party to the Third Amended and Restated
Credit Agreement, dated as of February 24, 1999 (as amended, supplemented or
otherwise modified from time to time, the "Existing Credit Agreement"), among
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the Grantor, each Foreign Subsidiary Borrower (as defined in the Existing Credit
Agreement) party thereto, the banks and other financial institutions from time
to time party thereto as lenders (the "Lenders") and The Chase Manhattan Bank,
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as Administrative Agent;
WHEREAS, pursuant to the Fourth Amended and Restated Credit Agreement,
dated as of December 29, 2000 (as amended, modified, supplemented, extended or
renewed from time to time, including pursuant to any amendment and restatement
thereof, the "Credit Agreement"), among the Grantor, each Foreign Subsidiary
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Borrower (as defined in the Credit Agreement) party thereto, the Lenders parties
thereto and The Chase Manhattan Bank, as Administrative Agent, the Existing
Credit Agreement was amended and restated in its entirety, and the Lenders have
agreed to make further extensions of credit to the Borrowers (as defined in the
Credit Agreement) thereunder, including, without limitation, Grantor;
WHEREAS, pursuant to the Credit Agreement, Grantor is required to
execute and deliver this Mortgage to the Beneficiary, for the benefit of the
Secured Parties (as hereinafter defined);
WHEREAS, pursuant to the terms of the Credit Agreement, the First
Priority Secured Obligations [the Other Secured Obligations](as defined in the
Security Agreement) of Grantor shall be secured by, among other things, a lien
upon and perfected security interest in all estate, right, title and interest of
the Grantor in and to the Mortgaged Property (as defined below) pursuant to the
terms hereof; and
__________________________
/1/ Note: Mortgage form, including the preamble and the granting clauses, will
be modified for execution by the Domestic Subsidiaries.
WHEREAS, Grantor is, or in the case of Mortgaged Property hereafter
acquired will be, the [fee] [leasehold] owner of the Mortgaged Property (as
hereinafter defined);
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor agrees that to secure the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and liabilities of
Grantor with respect to the First Priority Secured Obligations [Other Secured
Obligations] which may arise under the Credit Agreement and any other Loan
Document or Surety Bond Document to which Grantor is a party, in each case
whether on account of guarantee obligations, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise to the extent contemplated by the
Credit Agreement or any other Loan Document or Surety Bond Document to which
Grantor is a party (including, without limitation, all fees and disbursements of
counsel to the Administrative Agent or to the Lenders that are required to be
paid by Grantor pursuant to the terms of the Credit Agreement or any other Loan
Document to which Grantor is a party) and in each case relating to the First
Priority Secured Obligations [the Other Secured Obligations] (the "Secured
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Obligations"; provided that, to the extent the Mortgaged Property constitutes
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Restricted Collateral (as defined in the Security Agreement), the "Secured
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Obligations" shall include only Restricted Collateral Secured Obligations (as
- - -----------
defined in the Security Agreement));
GRANTOR, UPON THE TERMS AND CONDITIONS SET FORTH HEREIN, HEREBY
IRREVOCABLY GRANTS, BARGAINS, SELLS, PLEDGES, CONVEYS, TRANSFERS, MORTGAGES AND
ASSIGNS unto Trustee, for the benefit of Beneficiary, its successors and
assigns, with power of sale, and grants a security interest to Beneficiary in,
all of the following property (such property being referred to collectively
herein as the "Mortgaged Property"):
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(a) all estate, right, title and interest of Grantor, now owned or
hereafter acquired, in and to those certain tracts or parcels of
land as described in Exhibit A hereto, together with all rights
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of way or use, sidewalks, alleys, strips, gores, rights
(including rights in streets (including those vacated or to be
vacated), privileges, air rights and development rights, sewer
rights, waters, water courses, water rights and powers,
servitudes, estates, licenses, easements, tenements,
hereditaments and appurtenances incident, belonging or
pertaining to such land, including any mineral, mining, oil and
gas rights and rights to produce or share in the production of
anything related thereto and similar or comparable rights of any
nature whatsoever now or hereafter appurtenant thereto)
(collectively, the "Land"), and all estate, right, title and
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interest of Grantor in the buildings, structures, fixtures and
improvements now or hereafter located or erected thereon (which
buildings and improvements, together with any additions thereto
or alterations or replacements thereof, being referred to herein
as the "Improvements");
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(b) all right, title and interest of Grantor in and to all
machinery, apparatus, equipment, materials, fittings, fixtures,
chattels, and all other real property, and all appurtenances and
additions thereto and betterments, renewals, substitutions and
replacements thereof, now or hereafter owned by Grantor or in
which Grantor has or shall acquire an interest (to the extent of
such interest), and now or hereafter
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located on, attached to or contained in or used in connection with the
Land or the Improvements, or placed on any part thereof though not
attached thereto, including all indoor and outdoor furniture,
landscaping, indoor plants, tools, screens, awnings, shades, blinds,
curtains, draperies, partitions, carpets, rugs, furniture and
furnishings, heating, lighting, plumbing, water heating, cooking,
monitoring, ventilating, air conditioning, refrigerating, sanitation,
waste removal, incinerating or compacting plants, systems, fixtures
and equipment, elevators, escalators, stoves, ranges, vacuum systems,
window washing and other cleaning systems, call systems, sprinkler
systems and other fire prevention and extinguishing apparatus and
materials, alarms, telecommunications, entertainment, recreational or
security systems and equipment, motors, machinery, pipes, ducts,
conduits, dynamos, engines, compressors, generators, boilers, stokers,
furnaces, pumps, tanks, and appliances, in each case to the extent a
lien is perfected thereon by a fixture filing (collectively,
"Equipment");
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(c) all right, title and interest of Grantor in and to all real estate tax
refunds and credits and all awards or payments, including interest on
any of them, and any right to receive the same which Grantor may have,
which may be made with respect to any of the Premises (as hereinafter
defined) whether from a condemnation thereof or for any other injury
to, decrease in the value of, or other occurrence affecting any of the
Premises, subject, in each case, to the rights of Tenants (as
hereinafter defined) under Leases (as hereinafter defined) or parties
under Operating Agreements to the extent such Leases or Operating
Agreements are not subordinate to the terms of this Mortgage;
(d) all estate, right, title and interest of Grantor in and to all Leases,
Operating Agreements and other agreements for, affecting or related to
the use and occupancy of the Premises, now or hereafter entered into
(including any use or occupancy arrangements created pursuant to
Section 365(d) of Title 11 of the United States Code (the "Bankruptcy
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Code") or otherwise in connection with the commencement or continuance
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of any bankruptcy, reorganization, arrangement, insolvency,
dissolution, receivership or similar proceedings, or any assignment
for the benefit of creditors, in respect of any Tenant or occupant of
any portion of the Mortgaged Property and all extensions, amendments
and modifications thereto heretofore or hereafter entered into), and
all rents, incomes, issues, royalties, revenues and profits derived by
Grantor from the Premises and, subject to the terms and conditions of
the Credit Agreement, the right to apply such rents, incomes, issues,
royalties, revenues and profits to the obligations secured by this
Mortgage, together with the security deposits or other payments or
instruments delivered as security under such Leases, Operating
Agreements and agreements (the grant of such security deposits and
other security being subject to application in accordance with the
express requirements of such Leases, Operating Agreements and any
other agreements applicable thereto); and
(e) any of the foregoing to the extent acquired from and after the date
hereof;
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TO HAVE AND TO HOLD the above granted and described property, unto and to
the proper use and benefit of Beneficiary, its successors and assigns, forever,
upon the terms and conditions set forth herein.
To protect the security of this Mortgage, Grantor covenants and agrees with
and represents and warrants to Beneficiary as follows:
Section 1. DEFINITIONS
1.1 Definitions.
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Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement. As
used in this Mortgage the following terms have the following respective
meanings:
"Bankruptcy Code" shall have the meaning stated in the introduction
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hereof.
"Casualty" shall mean a fire, explosion, flood, collapse or other
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casualty affecting any part of the Premises.
"Condemnation" shall mean a taking or voluntary conveyance during the
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term hereof of all or any part of the Premises or any interest therein or
any right accruing thereto or use thereof, as a result of, or in settlement
of, any condemnation or other eminent domain proceeding by any Governmental
Authority, whether or not the same have been actually commenced.
"Default Rate" shall mean, if a default has occurred with respect to
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only one Tranche of Loans, the interest rate applicable to Base Rate Loans
of such Tranche, plus 2% and in all other cases, the interest rate
applicable to Base Rate Loans that are Tranche C Term Loans as provided for
in the Credit Agreement, plus 2%.
"Equipment" shall have the meaning stated in the introduction hereof.
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"Grantor" shall mean [Federal-Mogul Corporation]for the period during
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which the same shall own the Mortgaged Property, and following any
conveyance of the Mortgaged Property which is permitted by the terms of
this Mortgage, shall mean the transferee for the period during which each
transferee shall own the Mortgaged Property.
"Grantor's Contest Right" shall mean Grantor's right to contest
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certain matters pursuant to the Credit Agreement, subject to all of the
terms and conditions set forth in the Credit Agreement.
["Ground Lease" incorporate details of Ground Lease as applicable.]
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"Improvements" shall have the meaning stated in the introduction
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hereof.
"Land" shall have the meaning stated in the introduction hereof.
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"Leases" shall mean any lease, sublease, sub-sublease, license,
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letting, concession, occupancy agreement or other agreement (whether
written or oral and whether now or hereafter in effect) pursuant to which
any person is granted a possessory interest in, or right to use or occupy
all or any portion of any space in any Mortgaged Property, and every
modification, amendment or other agreement relating to such lease,
sublease, sub-sublease, or other agreement entered into, in accordance with
the terms of the Loan Documents, in connection with such lease, sublease,
sub-sublease, or other agreements and all agreements related thereto, and
every guarantee of the performance and observance of the covenants,
conditions and agreements to be performed and observed by the other party
thereto.
"Mortgage" shall mean this [Mortgage] [Deed of Trust], Assignment of
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Leases, Rents and Revenues and Fixture Filing, as amended, supplemented,
restated or otherwise modified from time to time pursuant to the provisions
hereof.
"Mortgaged Property" shall have the meaning stated in the introduction
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hereof.
"Operating Agreements" shall mean all reciprocal easements and/or
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operating agreements, covenants, conditions and restrictions and similar
agreements affecting the Mortgaged Property and binding upon Grantor,
and/or any Affiliate or Subsidiary and/or any other third party.
"Other Charges": all ground rents, maintenance charges, impositions
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other than Taxes, and any other charges, including vault charges and
license fees for the use of vaults and similar areas adjoining the
Premises, now or hereafter levied or assessed or imposed against the
Premises or any part thereof.
"Other Mortgaged Property": property constituting Mortgaged Property
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under (and as defined in) any Other Mortgage.
"Other Mortgages" shall mean those other mortgages and deeds of trust
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made by Grantor, or an Affiliate or Subsidiary of Grantor, in favor of
Beneficiary pursuant to the terms of the Credit Agreement, a Domestic
Subsidiary Guarantee, or any other Loan Document, as amended, supplemented,
restated or otherwise modified from time to time pursuant to the provisions
thereof.
"Permitted Lien" any Lien permitted pursuant to Section 11.4 of the
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Credit Agreement.
"Premises" shall mean the Land, Improvements and Equipment and all
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accessions and additions thereto which constitute a part of the Land,
Improvements and/or Equipment.
"Proceeds" shall mean amounts, awards or payments payable to
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Beneficiary, Administrative Agent, Grantor, or any Affiliate or Subsidiary
of Grantor in respect to all or any part of the Premises in connection with
a casualty or condemnation thereof (after the deduction therefrom and
payment to such Beneficiary, Administrative Agent, Grantor, or any
Affiliate or Subsidiary of Grantor of any and all reasonable expenses
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incurred by such entity in the recovery thereof, including all attorneys'
fees and disbursements, the fees of insurance experts and adjusters and the
costs incurred in any litigation or arbitration with respect to such
casualty or condemnation).
"Secured Obligations" shall have the meaning stated in the
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introduction hereof.
"Secured Parties" shall mean (i) the Surety Parties (as defined in the
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Security Agreement), (ii) the Lenders (including Lender Affiliates, to the
extent such Lender Affiliates hold Secured Obligations) and the
Administrative Agent and (iii) the Beneficiary.
"Taxes": all real estate and personal property taxes, assessments,
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fees, taxes on rents or rentals, water rates or sewer rents, and other
governmental charges now or hereafter levied or assessed or imposed against
the Grantor or any Mortgaged Property or rents therefrom
"Tenant": any Person liable by contract or otherwise to pay monies
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(including a percentage of gross income, revenue or profits) pursuant to a
Lease.
1.2 Other Definitional Provisions. The words "hereof", "herein",
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"hereunder", and words of similar import when used in this Mortgage shall refer
to this Mortgage as a whole and not to any particular provision of this
Mortgage, and Section and Schedule references are to this Mortgage unless
otherwise specified.
Section 2. COVENANTS
2.1 Payment of Taxes.
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(a) Except as may be permitted by the Credit Agreement, Grantor will pay
and discharge from time to time, on or prior to the date when material penalties
attach thereto, all Taxes and Other Charges, whether created or evidenced by
recorded or unrecorded documents or of a like or different nature, imposed upon
or assessed against the Mortgaged Property or any part thereof or upon the rents
or other income from the Mortgaged Property or arising in respect of the
occupancy, use or possession thereof.
(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) in
any manner changing or modifying laws now in force governing the taxation of
this Mortgage (other than the laws governing income, franchise and similar taxes
generally) or the manner of collecting taxes thereon and (ii) imposing a tax to
be paid by Beneficiary, Administrative Agent or Lender either directly or
indirectly, on this Mortgage or requiring the amount of taxes to be withheld or
deducted therefrom, the Grantor will promptly notify Beneficiary and
Administrative Agent of such event. In such event Grantor shall, to the extent
permitted by applicable law, (i) agree to enter into such further instruments as
may be reasonably necessary or desirable to obligate Grantor to make any
applicable additional payments and (ii) Grantor shall be obligated to make such
additional payments.
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2.2 Alterations.
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(a) Except as may be permitted in the Credit Agreement or the other Loan
Documents, Grantor shall not:
(i) demolish or remove any material portion of any Improvement,
unless as may be required by law or such demolition or removal could not
reasonably be expected to interfere in any material manner with the business and
operations of the Mortgaged Property as currently conducted;
(ii) erect any additions to the Improvements or any other
structures on the Premises, if such erection could reasonably be expected to
interfere, in any material way, with the business and operations of the
Mortgaged Property as presently conducted;
(iii) commit any waste on the Mortgaged Property or make any
alterations to the Mortgaged Property if such waste or alterations could
reasonably be expected to interfere, in any material way, with the business and
operations of the Mortgaged Property as presently conducted;
(iv) take any other action with respect to the Mortgaged Property
if it would (A) materially increase the risk of fire or any other hazard, (B)
violate the terms of any insurance policy required under Section 2.3 hereof or
under the Credit Agreement, or (C) could reasonably be expected to interfere, in
any material way, with the business and operations of the Mortgaged Property as
presently conducted; in each case without the consent of Beneficiary, which
consent shall not be unreasonably withheld by Beneficiary.
2.3 Maintenance of Property; Insurance; Inspection. Supplementing the
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provisions of the Credit Agreement, for so long any part of the Secured
Obligations remain outstanding or any other amount is owing to any Lender or the
Administrative Agent under any of the Loan Documents, the Grantor shall:
(a) keep the Mortgaged Property in good repair, working order
and condition, damage by Casualty and reasonable wear and tear excepted; and
will perform preventive maintenance thereon, and maintain such licenses, permits
and other arrangements with respect thereto, all in accordance with the
standards observed by reasonably prudent owners of properties in the same or
similar business as Grantor;
(b) maintain, pursuant to and in accordance with the Credit
Agreement, with financially sound and reputable insurance companies policies of
hazard, casualty and liability insurance in amounts and subject to deductibles
or retentions as in the reasonable opinion of Grantor is available on
commercially reasonable terms and will provide sound and reasonable protection
for the Mortgaged Property; and
(c) upon the request of Administrative Agent, the Grantor will
furnish to Beneficiary or Administrative Agent, with copies for each Lender,
certificates of insurance or
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other evidence that the insurance required to be maintained by Grantor pursuant
hereto is being maintained.
2.4 Casualty and Condemnation. If the Mortgaged Property shall be
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damaged or destroyed in whole or in part by a Casualty or Condemnation, Grantor
shall give prompt written notice to Beneficiary and Administrative Agent,
generally describing the nature and extent of such Casulaty. All Proceeds to
which Grantor or an Affiliate or Subsidiary thereof may be entitled to as a
result of a Casualty or Condemnation shall be distributed and applied to the in
accordance with the terms of the Credit Agreement.
2.5 Transfer Restrictions; Liens.
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(a) Except as may be permitted pursuant to the Credit
Agreement, Grantor shall not sell, transfer, convey or assign all or any portion
of, or any interest in, the Mortgaged Property. All Proceeds to which Grantor or
an Affiliate or Subsidiary of Grantor may be entitled to as a result of a sale,
transfer, conveyance or assignment of all or any portion of grantor's interest
in the Mortgaged Property shall be distributed and applied in accordance with
the Credit Agreement.
(b) Except for the Permitted Liens, neither Grantor, nor
any Affiliate or Subsidiary of Grantor, may suffer to exist any Lien on the
Mortgaged Property or any part thereof, whether superior or subordinate to the
Lien of this Mortgaged Property.
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[2.6 Ground Lease/2/
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Grantor hereby represents, warrants and covenants the following with
respect to the Ground Lease:
(i) the Ground Lease or a memorandum thereof has been duly recorded;
(ii) either (A) the Ground Lease permits the interest of the Grantor
thereunder to be encumbered by the Mortgage or (B) the lessor under the Ground
Lease has granted its consent to the interest of Grantor being encumbered by the
Mortgage, a true and complete copy of which consent has been delivered to
Administrative Agent;
(iii) the Ground Lease does not restrict the use of the Mortgaged
Property by Grantor, its successors or assigns in a manner that could reasonably
be expected materially interfere with the business and operation of the
Mortgaged Property as presently conducted;
(iv) a true and complete copy of the Ground Lease has been delivered
to the Administrative Agent;
(v) on the date hereof, the Ground Lease is in full force and effect
and no material default by Grantor has occurred under the Ground Lease nor, to
the best of the Grantor's knowledge, is there any existing condition which, but
for the passage of time or the giving of notice or both, would result in a
material default by Grantor under the terms of any Ground Lease; and
(vi) Grantor shall deliver to Beneficiary, Administrative Agent and
Trustee, promptly upon receipt or delivery thereof, copies of all notices of
default and other material notices delviered to or by Grantor with respect to
the Ground Lease.]
Section 3. FORECLOSURE.
3.1 Foreclosure.
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If any Event of Default shall have occurred and be continuing, Trustee or
Beneficiary may at any time proceed, at law or in equity or otherwise:
(a) to institute an action to foreclose its interest under the Lien
of this Mortgage against the Mortgaged Property by judicial foreclosure
sale or strict foreclosure in one proceeding or against portions of the
Mortgaged Property in a series of separate proceedings, and to have the
same sold under the judgment or decree of a court of competent jurisdiction
or proceed to take any of such actions;
____________________________
/2/ The leasehold mortgage will provide that with respect to payment or
performance of comparable obligations under an unsubordinated ground lease
and the leasehold mortgage, payment or performance of the obligation under
the ground lease will satisfy payment and performance of the comparable
leasehold mortgage obligation.
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(b) to take such other action at law or in equity or otherwise for
the enforcement of this Mortgage and the realization, upon obtaining a
judgment for foreclosure, on the security or any other security herein or
elsewhere provided for, in such manner and at such times as the law may
allow, and may proceed therein to the extent permitted, and subject to the
limitations imposed, by law to final judgment and execution for all sums
payable by Grantor in accordance with the provisions of the Credit
Agreement and the other Loan Documents, and all sums which may have been
advanced by Beneficiary in accordance with the provisions of this Mortgage,
for Taxes and Other Charges, water or sewer rents, charges or claims,
payment on prior liens, insurance or repairs to the Mortgaged Property, all
costs of suit, together with interest thereon at such interest rate as may
be awarded in any judgment obtained by Beneficiary, as the case may be,
from and after the date of any foreclosure sale until actual payment is
made to Beneficiary of the full amount due Beneficiary, and attorneys' fees
through and including all appellate levels; and/or
(c) to sell, assign, transfer and deliver the whole or, from time to
time, any part of the Mortgaged Property, or any interest in any part
thereof, at any private sale or at public auction permitted by law, with
such demand, advertisement or notice as required by law, and on such other
terms as required or permitted by law.
After an Event of Default has occurred and is continuing, and before taking
title to or possession of all or any portion of the Mortgaged Property,
Beneficiary may order the performance of environmental assessments of the
Mortgaged Property by qualified professionals, the reasonable cost of which
shall be borne by Grantor and secured hereby.
3.2 Grantor's Waivers.
-----------------
To the extent permitted by applicable law, it shall not be necessary for
Trustee or Beneficiary to have actual or constructive possession of any part of
the Mortgaged Property in order to pass the title to and the right of possession
of the Mortgaged Property, and the title to and the right of possession of the
Mortgaged Property shall pass to the purchaser or purchasers thereof at any sale
hereunder as fully as if the same actually had been present and delivered. To
the fullest extent allowed by applicable law, upon foreclosure of this Mortgage,
whether by power of sale or any other nonjudicial or judicial foreclosure
process, Grantor or any person claiming any part of the Mortgaged Property by,
through or under Grantor shall not be entitled to direct the order of sale, a
marshaling of assets or a sale in inverse order of alienation. The recitals and
statements of fact contained in any notice or in any conveyance to the purchaser
or purchasers at any sale hereunder shall be prima facie evidence of the truth
of such facts, and all prerequisites and requirements necessary to the validity
of any such sale shall be presumed to have been performed. In the event of a
foreclosure sale, to the extent that Grantor is in possession of the Premises,
Grantor shall be deemed a tenant at will of the purchaser at such judicial
foreclosure sale and shall be liable for a reasonable rental for the use of the
Premises; and if Grantor refuses to surrender possession of the Premises upon
demand, the purchaser shall be entitled to institute and maintain the statutory
action of forcible entry and detainer and procure a writ of possession
thereunder, and Grantor expressly waives all damages sustained by reason thereof
(other than those caused by gross negligence, willful misconduct or bad faith)
and
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Grantor agrees to pay to the purchaser the reasonable costs and expenses
(including all reasonable attorneys' fees and expenses) of such action and writ.
3.3 Recovery of Advances.
--------------------
To the extent permitted by applicable law and if an Event of Default shall
have occurred and be continuing, Beneficiary shall have the right, from time to
time, to bring an appropriate action to recover any sums required to be paid by
Grantor under the terms of this Mortgage and/or the Credit Agreement as they
become due, without regard to whether any other Secured Obligations shall be
due, and, subject to the limitations imposed by law, without prejudice to the
right of Beneficiary thereafter to bring an action of foreclosure, or any other
action, for any Event of Default by Grantor existing at the time the earlier
action was commenced.
3.4 Sale.
----
Upon the completion of any sale or sales of all or any portion of the
Mortgaged Property by virtue of this Section, Trustee, Beneficiary or any
officer of any court empowered to do so, shall execute and deliver to the
accepted purchaser or purchasers, good and sufficient instrument or instruments
conveying, assigning and transferring all estate, right, title and interest in
and to the property and rights sold. To the extent permitted by law, any such
sale or sales shall operate to divest all the estate, right, title, interest,
claim and demand whatsoever, whether at law or in equity, of Grantor in and to
the properties, interests and rights so sold, and shall be a perpetual bar both
at law and in equity against Grantor and against any and all Persons claiming or
who may claim the same, or any part thereof from, through or under Grantor.
3.5 Several Parcels.
---------------
To the extent permitted by law, if any Event of Default shall have occurred
and be continuing, Trustee or Beneficiary shall have the right to sell all or
any portion of the Mortgaged Property or of the Other Mortgaged Properties
(subject to the terms of the Other Mortgages) in such order as it may determine,
and the right of sale hereunder shall not be exhausted by one or more sales, but
to the extent permitted by law successive sales may be had until all of the
Mortgaged Property and the Other Mortgaged Properties have been legally sold. To
the extent permitted by law, in the event any sale hereunder is not completed or
is defective in the opinion of Trustee or Beneficiary, such sale shall not
exhaust the power of sale hereunder, and Beneficiary shall have the right to
cause a subsequent sale or sales.
3.6 Beneficiary Authorized to Execute Instruments.
---------------------------------------------
Grantor irrevocably appoints (which appointment is coupled with an
interest) each of Trustee and Beneficiary the true and lawful attorney-in-fact
of Grantor, in its name and stead and on its behalf, for the purpose of
effectuating any sale, assignment, transfer or delivery for the enforcement of
this Mortgage after the occurrence and during the continuance of an Event of
Default hereunder, to execute and deliver all such deeds, assignments, bills of
sale and other instruments (without recourse, warranty or representation of any
kind) as may be necessary or, in the reasonable judgment of the Trustee or
Beneficiary, desirable, with full power of substitution, Grantor hereby
ratifying and confirming all that such attorney or any substitutes thereof shall
lawfully do by virtue hereof. Nevertheless, if so requested by Trustee,
Beneficiary or any
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purchaser, Grantor shall ratify and confirm any such sale, assignment, transfer
or delivery by executing and delivering to Trustee, Beneficiary or such
purchaser all deeds, assignments, bills of sale, releases and other proper
instruments (which in each case shall be without recourse to or representation
or warranty by Grantor) to effect such ratification and confirmation as may be
reasonably designated in any such request.
3.7 Purchase of Mortgaged Property by Beneficiary.
---------------------------------------------
Beneficiary or any nominee of Beneficiary may be a purchaser of the
Mortgaged Property or of any interest therein at any sale thereof, and may apply
to the purchase price all or any part of the Secured Obligations secured hereby
in lieu of payment in cash of the amount of such Secured Obligations applied.
Any such purchaser shall, upon any such purchase, acquire good title to the
property so purchased, free of the Lien of this Mortgage and free of all rights
of redemption in Grantor.
3.8 Receipt a Sufficient Discharge to Purchaser.
-------------------------------------------
Upon any sale of the Mortgaged Property after the Notes become due and
payable, whether at maturity, by declaration of acceleration or by automatic
acceleration after the occurrence and continuation of an Event of Default or
otherwise, the receipt of Trustee or Beneficiary or the receipt of the officer
making the sale under judicial proceedings shall, to the full extent legally
permitted, be sufficient discharge to the purchaser for the purchase money, and
such purchaser shall not be obligated to see to the application thereof.
3.9 Waiver of Marshaling, Appraisement, Valuation.
---------------------------------------------
Grantor hereby waives all rights, legal and equitable, it may now or
hereafter have to require marshaling of assets or to require upon foreclosure
sales of assets in a particular order. Each successor and assign of Grantor,
including a holder of a Lien subordinate to the Lien created hereby (without
implying that Grantor has, except as expressly provided herein, a right to grant
an interest in, or a subordinate Lien on, the Mortgaged Property or any part
thereof), by acceptance of its interest or Lien agrees that it shall be bound by
the above waiver, as if it gave the waiver itself. Grantor also hereby waives,
to the full extent it may lawfully do so, the benefit of all laws providing for
rights of appraisement, valuation, stay or extension or of redemption after
foreclosure now or hereafter in force.
3.10 Sale Shall be a Bar Against Grantor.
-----------------------------------
The sale of all or any portion of the Mortgaged Property in connection with
the exercise of remedies under this Mortgage after the Notes become due and
payable, whether at maturity, by declaration of acceleration or by automatic
acceleration after the occurrence and continuation of an Event of Default or
otherwise, shall, to the full extent legally permitted, forever be a perpetual
bar against Grantor's asserting any claim to title to such portion of the
Mortgaged Property so sold.
3.11 Application of Sale Proceeds.
----------------------------
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The proceeds of any sale made under or by virtue of this Section, together
with any other sums which then may be held by Trustee or Beneficiary under this
Mortgage, whether under the provisions of this section or otherwise, shall be
applied by Trustee or Beneficiary in the manner specified in the New Trust
Agreement.
Section 4. [THE TRUSTEE/3/
4.1 Acceptance; Standard of Conflict.
--------------------------------
Trustee, by acceptance hereof, hereby covenants faithfully to perform and
fulfill the trusts herein created, provided that Trustee shall be liable
hereunder only for gross negligence, willful misconduct or bad faith. In any
event, Trustee shall be indemnified and forever held harmless by Beneficiary for
any action that Trustee may take pursuant to and in reliance upon the written
instructions of Beneficiary.
4.2 Fees and Expenses.
-----------------
Grantor shall pay all reasonable costs, fees and expenses of Trustee and
its counsel, incurred in connection with the performance of Trustee's duties
hereunder. Nothing contained in this Mortgage shall be construed to require
Trustee to make any advances of funds for the benefit of either Grantor or
Beneficiary for any reason or purpose.
4.3 Resignation.
-----------
Trustee may resign at any time after thirty (30) days' notice in writing to
Grantor and Beneficiary.
4.4 Acts of Trustee.
---------------
In the event more than one person is designated as Trustee herein, then
either or any of them may act when the circumstances shall so require and the
act of either or both of them shall be considered as the act of both or all.
4.5 Successor Trustee; Substitution.
-------------------------------
Beneficiary may remove Trustee at any time or from time to time, with or
without reason or cause. In the event of the death, removal, resignation,
refusal to act or inability to act of Trustee, or in the sole discretion of
Beneficiary for any reason, without notice to any party, and without application
to any court, a successor or substitute Trustee may be appointed by Beneficiary
by a designation in writing of a successor or substitute Trustee by the filing
of a deed of appointment or similar instrument for record in the office where
this Mortgage is recorded. Such power of appointment may be exercised whenever
and as often as Beneficiary may reasonably consider it advisable and the
exercise of such power of appointment, no matter how frequently, shall not be
considered a termination thereof. Upon the recordation of any such deed of
appointment, the successor or substitute Trustee so appointed shall thereupon,
without further
___________________________
/3/This Section and all references to the Trustee shall be included in any Deed
of Trust.
-14-
act or deed, become fully vested with the same title and estate in and to the
Mortgaged Property as Trustee, as aforesaid, and have all of the rights, powers,
trusts, duties and authority of Trustee. Whenever in the Credit Agreement or any
other Loan Document reference is made to Trustee, such reference shall be held
and construed to mean Trustee for the time being, whether original, successor or
substitute.]
Section 5. APPOINTMENT OF RECEIVER
If an Event of Default shall have occurred and be continuing, Beneficiary
shall, to the fullest extent permitted by law, as a matter of right, be entitled
to the appointment of a receiver for all or any part of the Mortgaged Property,
whether such receivership be incidental to a proposed sale of the Mortgaged
Property or otherwise, and Grantor hereby consents to the appointment of such a
receiver and will not oppose any such appointment.
Section 6. POSSESSION, MANAGEMENT AND INCOME UPON DEFAULT
If an Event of Default shall have occurred and be continuing:
(i) Beneficiary, with such notice, if any, to Grantor as required by law
or as Beneficiary considers reasonable and appropriate in the circumstances, and
subject to the rights of Tenants and the other parties to any Operating
Agreements and the provisions of applicable law, may immediately enter upon and
take possession of the Premises by self-help, summary proceedings, ejectment or
otherwise, and may remove Grantor and all other Persons and any and all property
therefrom, and may hold, operate and manage the same and receive all earnings,
income, rents, issues and proceeds accruing with respect thereto. Beneficiary
shall be under no liability for or by reason of any such taking of possession,
entry, removal or holding, operation or management, except (a) for its gross
negligence or willful misconduct or (b) to the extent required by applicable
law, and except that any amounts so received by Beneficiary shall be applied as
set forth in the Credit Agreement and the other Loan Documents; and
(ii) upon every taking of possession pursuant to this Section, Beneficiary
may (but shall have no obligation to), from time to time, at the expense of
Grantor and such expenses to constitute part of the Secured Obligations, make
all such expenditures for maintenance, insurance, repairs, replacements,
alterations, additions and improvements to and of the Premises, as, in the
reasonable judgment of the Beneficiary, it may deem proper. In such case,
Beneficiary, to the fullest extent permitted by law, shall have the right to
manage, control, use, operate, store, lease or otherwise deal with the Mortgaged
Property and to carry on the business and exercise all the rights and powers of
Grantor relating thereto, as shall, in the reasonable judgment of the
Beneficiary, be deemed best, including the right to enter into any and all such
agreements with respect to the management, cleaning, control, use, operation,
storage, leasing of or otherwise dealing with the Mortgaged Property, or any
part thereof, as may, in the reasonable judgment of the Beneficiary, be deemed
best; and, to the fullest extent permitted by law, Beneficiary shall be entitled
to the extent permitted by law to collect and receive all tolls, rents,
revenues, issues, income, products and profits of the Mortgaged Property and
every part thereof. Such tolls, rents, revenues, issues, income, products and
profits shall be applied in the manner set forth in the Credit Agreement or the
other Loan Documents.
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Section 7. RIGHT OF BENEFICIARY TO PERFORM GRANTOR'S COVENANTS
If an Event of Default shall have occurred and be continuing, and Grantor
shall fail to make any payment or perform any act required to be made or
performed hereunder or under any other Loan Document, Beneficiary, upon notice
to Grantor and upon the expiration of any applicable grace or cure period, if
any (except in cases of emergency that threatens bodily injury or material
damage to property, in which case Beneficiary will allow such notice and grace
or cure period, if any, as is reasonable under the circumstances) and subject to
Grantor's Contest Right, but without waiving or releasing any obligation,
Default or Event of Default, may (but shall be under no obligation to) at any
time thereafter make such payment or perform such act for the account and at the
expense of Grantor, and, to the extent permitted by applicable law, may enter
upon the Premises for such purpose and take all such action thereon as, in the
judgment of Beneficiary, may be reasonably necessary or appropriate therefor,
subject to the rights of Tenants and other parties under Operating Agreements.
All sums so paid by Beneficiary and all reasonable costs and expenses (including
all attorneys' fees and expenses) so incurred, together with interest thereon at
the Default Rate from the date of payment by Beneficiary until paid, shall
constitute part of the additional indebtedness secured by this Mortgage and
shall be paid by Grantor to Beneficiary upon demand therefor.
Section 8. REMEDIES CUMULATIVE
To the extent permitted under applicable law, each right, power and remedy
of Beneficiary provided for in this Mortgage, the Credit Agreement or any other
Loan Document or now or hereafter existing at law or in equity or by statute or
otherwise shall be cumulative and concurrent and shall be in addition to every
other right, power or remedy provided for in this Mortgage, the Credit Agreement
or any other Loan Document or now or hereafter existing at law or in equity or
by statute (including the Uniform Commercial Code as enacted in the State where
the Mortgaged Property is located) or otherwise, and the exercise or beginning
of the exercise by Beneficiary of any one or more of the rights, powers or
remedies provided for in this Mortgage, the Credit Agreement or any other Loan
Document or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by Beneficiary,
to the extent permitted by law, of any or all of such other rights, powers or
remedies.
Section 9. GOVERNING LAW
This Mortgage shall be governed by, and construed and interpreted in
accordance with, the law of the State in which the Premises are located, except
that Grantor expressly acknowledges that by its terms the Credit Agreement will
be governed by, and construed and interpreted in accordance with, the laws of
the State of New York, without regard to principles of conflict of law, and for
purposes of consistency, Grantor agrees that in any in personam proceeding
-----------
related to this Mortgage or the rights of the parties to this Mortgage shall
also be governed by and construed in accordance with the laws of the State of
New York governing contracts made and to be preformed in that State, without
regard to principles of conflict of law.
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Section 10. NO WAIVER
No failure by Beneficiary to insist upon the strict performance of any term
hereof or to exercise any right, power or remedy consequent upon a breach
thereof shall constitute a waiver of any such term or of any such breach. No
waiver of any breach shall affect or alter this Mortgage, which shall continue
in full force and effect, or shall affect or alter the rights of Beneficiary
with respect to any other then-existing or subsequent breach. Neither Grantor
nor any other Person now or hereafter obligated to pay all or any part of the
sums now or hereafter secured by this Mortgage shall be relieved of such
obligation by reason of the failure of Beneficiary to comply with any request of
Grantor, or of any other Person so obligated, to take action to foreclose on
this Mortgage or otherwise to enforce any provisions of this Mortgage or any
other Loan Document or by reason of the release, regardless of consideration, of
all or any part of the security held for the Secured Obligations secured by this
Mortgage, or by reason of any agreement or stipulation between any subsequent
owner of any of the Mortgaged Property and Beneficiary extending the time of
payment or modifying the terms of this Mortgage or the Notes without first
having obtained the consent of Grantor or such other persons.
Section 11. FINANCING STATEMENT
This Mortgage shall be deemed to be and may be enforced from time to time
as a mortgage, chattel mortgage, assignment, contract, and shall constitute a
"fixture filing" for the purposes of Article 9 of the Uniform Commercial Code as
enacted in the State where the Premises are located.
Section 12. EXPENSES OF BENEFICIARY
12.1 Expenses of Defending the Mortgage.
----------------------------------
If any action, suit or other proceeding affecting the Mortgaged Property or
any part thereof shall be commenced in which action, suit or proceeding
Beneficiary is made a party or participates or in which the right to use the
Mortgaged Property or any part thereof is threatened, or in which it becomes
necessary in the reasonable judgment of Beneficiary to defend or uphold the
interest of Beneficiary under this Mortgage (including any action, suit or
proceeding to establish or uphold the compliance of the Improvements with any
Requirements of Law), then all out-of-pocket amounts reasonably paid or incurred
by Beneficiary for the expense of any such action, suit or other proceeding or
to protect its rights therein (whether or not Beneficiary is made or becomes a
party thereto) or otherwise to enforce or defend the rights and lien created by
this Mortgage (including all reasonable attorneys' fees and expenses), shall be
paid by Grantor upon demand and, if not paid within ten (10) days of the giving
of such demand, shall bear interest at the Default Rate from the date of the
payment or incurring thereof, and any such amount and the interest thereon shall
be a Lien on the Mortgaged Property, prior to any right, or right to, interest
in, or claim upon the Mortgaged Property attaching or accruing subsequent to or
otherwise subordinate to the Lien of this Mortgage, and the same shall be deemed
to be indebtedness secured hereby.
-17-
12.2 Expenses of Collection.
----------------------
In the event an Event of Default shall have occurred and shall then be
continuing, Grantor agrees to pay all reasonable costs associated therewith
incurred by Beneficiary, either with or without the institution of an action,
suit or other proceeding, in addition to all reasonable costs, disbursements and
allowances provided by law, all such costs to be paid upon demand, together with
interest thereon at the Default Rate from the date of notice, and the same shall
be deemed to be part of the Secured Obligations secured hereby.
Section 13. MISCELLANEOUS
This Mortgage may be discharged or terminated only by an instrument in
writing signed by the party against which enforcement of such discharge or
termination is sought. This Mortgage shall be binding upon each of Grantor,
Trustee and Beneficiary and their respective successors and permitted assigns
and all Persons claiming under or through Grantor, Trustee or Beneficiary or any
such successors or permitted assigns, and shall inure to the benefit of and be
enforceable by Grantor, Trustee and Beneficiary and their respective successors
and permitted assigns. This Mortgage may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
Section 14. NON-MERGER
It is the intention and agreement of Grantor and Beneficiary there shall be
no merger of this Mortgage and any estate in the Premises, by reason of the fact
that the same Person may own or hold the Premises and/or this Mortgage.
Section 15. ASSIGNMENT OF RENTS AND GRANTOR'S INTEREST IN LEASES
15.1 Assignment of Leases, Operating Agreements and Tenant Guaranties.
----------------------------------------------------------------
Subject to the provisions of Section 15.3, below, Grantor hereby pledges,
grants, sells, assigns, conveys, delivers, transfers, hypothecates and sets over
to Beneficiary, to the extent permitted by law or the terms hereof and subject
to the terms and conditions hereof and the limitations, if any, set forth in the
Leases, Operating Agreements and Tenant Guaranties described below, (a) all of
Grantor's right, title and interest, now or hereafter acquired, in and to any
and all existing Leases and Operating Agreements and any Leases and Operating
Agreements that may hereafter be entered into by or on behalf of Grantor, and
any modifications, renewals, extensions or replacements thereof, and any
guaranties of the Tenant's obligations under any Lease (each such guaranty, a
"Tenant Guaranty" and collectively "Tenant Guaranties") and (b) all right, title
--------------- -----------------
and interest of Grantor thereunder, including all claim, right and demand to
receive, collect and retain all rents and all other amounts due thereunder and
under any modifications, renewals or extensions thereof, including:
(a) the immediate and continuing right to receive and collect
all amounts payable by all Tenants, subtenants or other parties pursuant to
the Leases, Operating Agreements and Tenant Guaranties, including
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(i) all rents (including all amounts payable to Grantor on
account of maintenance, repairs, taxes, insurance and common area
charges or similar charges), income, revenues, issues, profits,
insurance proceeds, condemnation awards and other payments, tenders
and security payable to or receivable by Grantor under the Leases
and the Operating Agreements,
(ii) all damages or other amounts payable in the event of any
disposition, expiration or termination of any Lease or Operating
Agreement pursuant to the terms thereof, by operation of law or
otherwise,
(iii) any indemnification against, or reimbursement for, sums
paid and costs and expenses incurred by Grantor under any Lease or
Operating Agreement or otherwise,
(iv) any award in the event of the bankruptcy of any Tenant
or guarantor of a Lease or Operating Agreement and
(v) any security deposits, other security instruments, other
deposits or prepayments with respect to any such Lease or Operating
Agreement;
(b) all claims, rights, powers, privileges and remedies of Grantor,
whether provided for in any Lease, Operating Agreement or Tenant Guaranty
or arising by statute or at law or in equity or otherwise, consequent to
any failure on the part of any Tenant to perform or comply with any term of
any Lease or any other party to comply with any Operating Agreement or any
Tenant Guaranty;
(c) all right to take all action upon the happening of a default
under any Lease, Operating Agreement or Tenant Guaranty as shall be
permitted by any such Lease, Operating Agreement, Tenant Guaranty, or by
law, including the commencement, conduct and consummation of proceedings at
law or in equity; and
(d) the full power and authority, in the name of Grantor or
otherwise, to enforce, collect, receive and make receipt for any and all of
the foregoing and to do any and all other acts and things whatsoever that
Grantor is or may be entitled to do under any Lease, Operating Agreement or
Tenant Guaranty.
15.2 Application of Proceeds.
-----------------------
Except as otherwise required by applicable law, any funds received by
Beneficiary under this Section shall be applied by Beneficiary to the Secured
Obligations in accordance with the provisions of the Credit Agreement and the
other Loan Documents. Beneficiary shall be accountable to Grantor only for
monies actually received by the Trustee, Beneficiary or its Administrative
Agents pursuant hereto. Neither the collection of said funds and the application
thereof as aforesaid, nor any act done or omitted pursuant to the power and
rights granted to Beneficiary hereunder, shall cure or waive any Default or
Event of Default or waive, modify or affect any notice of Default or Event of
Default or invalidate any act done pursuant to such notice, nor shall the same
be a waiver of any of Beneficiary's rights and remedies under the Notes, this
Mortgage, the Other Mortgages, the Credit Agreement or the other Loan Documents.
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15.3 Present Assignment; License of Grantor.
--------------------------------------
(a) This Section constitutes a present, absolute, effective,
irrevocable and completed assignment by Grantor to Beneficiary of the
Leases and the right, subject to applicable law, to collect all sums
payable to Grantor thereunder and apply the same in accordance with Section
15.2, which is not conditioned upon Beneficiary being in possession of the
Premises. However, so long as no Event of Default shall have occurred and
be continuing, Grantor shall have a license to enforce the obligations of
Tenants under the Leases and of parties under the Operating Agreements, and
to exercise all the rights and remedies of the landlord under the Leases,
the Operating Agreements and Tenant Guaranties and the Tenant Guaranties
(including, without limitation, the right to receive all rents and other
amounts described above), subject, however, to compliance with the
provisions of this Mortgage and the other Loan Documents.
(b) If any Event of Default shall have occurred and be
continuing, the license granted in Section 15.3(a) shall immediately, to
the extent permitted by law, cease and terminate, without waiver of such
Event of Default, with or without notice, and without any action or
proceeding or the intervention of a receiver appointed by a court, and
Beneficiary or an Administrative Agent or receiver appointed by Beneficiary
may, to the extent permitted by law, without regard for the adequacy of the
security for the Secured Obligations and the Tenant Guaranties, the
commission of waste or the solvency of Grantor, without limiting any of the
Beneficiary's rights and remedies under any of the Loan Documents or
otherwise available at law or in equity and subject to applicable statutory
requirements, if any, do any or all of the following:
(i) exercise any of Grantor's rights under the Leases,
Operating Agreements and Tenant Guaranties;
(ii) enforce the Leases, Operating Agreements and Tenant
Guaranties;
(iii) demand, collect, sue for, attach, levy, recover,
receive, compromise and adjust, and make, execute and deliver
receipts and releases for all rents or other payments that may then
be or may thereafter become due, owing or payable with respect to
the Leases, Operating Agreements and Tenant Guaranties;
(iv) demand that any sums held by Grantor with respect to
any Lease, Operating Agreement or Tenant Guaranties (including any
security deposits, other deposits or prepayments) be immediately
remitted to Beneficiary;
(v) generally, do, execute and perform any other act,
deed, matter or thing whatsoever that ought to be done, executed
and performed in and about or with respect to the Leases, Operating
Agreements and Tenant Guaranties; and
(vi) enter into possession of the Mortgaged Property in
accordance with the terms of the Mortgage and the other Loan
Documents for the purposes of exercising its rights under
subsections (i) through (v) above.
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15.4 Payment by Tenants.
------------------
(a) Grantor hereby irrevocably authorizes and directs each
Tenant under a Lease and each other party under an Operating Agreement or
Tenant Guaranty, at the request of Beneficiary after the occurrence and
during the continuation of an Event of Default, and to the extent permitted
by law, to pay by direct deposit to an account as the Beneficiary may from
time to time designate) all rents, issues and profits accruing or due under
such Tenant's Lease or such other party's Operating Agreement or Tenant
Guaranty.
(b) If an Event of Default shall have occurred and be
continuing, then:
(i) Grantor hereby irrevocably authorizes Beneficiary to
notify each Tenant under a Lease and each other party under an
Operating Agreement or Tenant Guaranty for the purposes
contemplated by clause (a) above, Grantor shall provide any
confirming or separate notice to each such Tenant and other party
as Beneficiary may reasonably request for the same purposes.
(ii) Prior to receiving any notice from Beneficiary's
exercise of its rights under clause (a) above, Grantor shall have
the right to receive payments from Tenants and the other party or
parties to each Operating Agreement only in accordance with and
subject to the terms of the other Loan Documents.
15.5 No Release.
----------
Grantor at its expense will prudently enforce in all material respects each
of the Leases, Operating Agreements and Tenant Guaranties in accordance with
their terms. Neither the execution and delivery of the Mortgages or any other
Loan Document nor any action or inaction on the part of Beneficiary shall
release (a) any Tenant from its Lease, (b) any party from its Operating
Agreement, (c) any guarantor from any Tenant Guaranty or (d) Grantor from any of
its obligations under the Leases or the Operating Agreements, or constitute an
assumption of any such obligation on the part of Beneficiary. No action or
failure to act on the part of Grantor shall adversely affect or limit the rights
of Beneficiary under this Mortgage or, through this Mortgage, under the Leases,
the Operating Agreements or the Tenant Guaranties.
15.6 Rights, Powers and Privileges of Beneficiary Irrevocable.
--------------------------------------------------------
During the term hereof, all rights, powers and privileges of Beneficiary
herein set forth are coupled with an interest and are irrevocable, subject to
the terms and conditions hereof. To the extent permitted by law, Grantor hereby
waives any requirement that Beneficiary commence any foreclosure proceeding with
respect to any or all of the Mortgaged Property or to any or all of the other
properties and collateral securing payment of the Secured Obligations prior to
enforcement of any remedies pursuant to this Section, including the right to
commence and prosecute an action to appoint a receiver for rents and all other
amounts due under any Leases, Operating Agreements or Tenant Guaranties. Grantor
will, from time to time, upon request of Beneficiary, at Grantor's sole cost and
expense, execute all instruments and further assurances and all supplemental
instruments and take all such action as Beneficiary from time to time may
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reasonably request in order to perfect, preserve and protect the interests
intended to be assigned to Beneficiary hereby or to enable Beneficiary to
exercise or enforce its rights hereunder.
15.7 No Subordination or Amendment.
-----------------------------
Grantor hereby agrees that, except as permitted in the Credit Agreement, it
will not, unilaterally or by agreement, subordinate, amend, modify, extend,
discharge, terminate, surrender, waive or otherwise change any term of any of
the Leases, Operating Agreements or Tenant Guaranties in any manner that would
violate this Mortgage or any other Loan Document. If any of the Leases,
Operating Agreements or Tenant Guaranties shall be amended as permitted hereby
or thereby, they shall continue to be subject to the provisions hereof without
the necessity of any further act by any of the parties hereto.
15.8 Termination of Assignment.
-------------------------
Upon the payment, or the provision, in accordance with the applicable
provisions of this Mortgage and the other provisions of the Loan Documents, for
payment in full, of the Secured Obligations, or if the Mortgaged Property shall
be sold, transferred or otherwise disposed of by Grantor in a transaction
permitted by the Credit Agreement, the assignment made in this Section and all
rights hereunder assigned to Beneficiary shall cease and terminate and shall
revert to Grantor. Further, upon the partial repayment of, or provision for the
partial defeasance of, the Notes and all other sums in an amount sufficient to
cause the release of the Mortgaged Property from the Lien of this Mortgage
pursuant to the terms of the Credit Agreement, the assignment made in this
Section and all rights hereunder assigned to Beneficiary in respect thereof
shall cease and terminate and revert to Grantor.
15.9 Beneficiary Not Obligated Under Lease, Operating Agreement or
-------------------------------------------------------------
Tenant Guaranty.
- - ---------------
This Section shall not be construed to bind Beneficiary to the performance
of any of the covenants, conditions or provisions contained in any Lease,
Operating Agreement or Tenant Guaranty or otherwise impose any obligation upon
Beneficiary. Beneficiary shall not be liable for any loss sustained by Grantor
resulting from Beneficiary's failure to let the Premises or from any other act
or omission of Beneficiary in managing the Premises after an Event of Default,
unless such loss is caused by the negligence, willful misconduct or bad faith of
Beneficiary. This Section shall not operate to place any obligation or liability
reasonably request in order to perfect, preserve and protect the interests
intended to be assigned to Beneficiary hereby or to enable Beneficiary to
exercise or enforce its rights hereunder. for the control or repair of the
Premises upon Beneficiary, nor for the carrying out of any of the terms and
conditions of the Leases or any Tenant Guaranty; nor shall it operate to make
Beneficiary responsible or liable for any waste committed on the Premises,
including the presence of Materials of Environmental Concern, or for any
negligence by any person other than Beneficiary in the management, upkeep,
repair or control of the Premises resulting in loss or injury or death to any
tenant, licensee, employee or stranger. Nothing in this Section shall be
construed as constituting Beneficiary a "mortgagee in possession" in the absence
of the taking of actual possession of the Premises by Beneficiary.
15.10 Subrogation.
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If an Event of Default shall have occurred and be continuing, Beneficiary
shall, to the extent permitted by law, have the right to proceed in its own name
or in the name of Grantor in respect of any claim, suit, action or proceeding
relating to the rejection of any Lease, Operating Agreement or Tenant Guaranty
by or on behalf of any lessee or other party thereunder, including the right to
file and prosecute, to the exclusion of Grantor, any proofs of claim,
complaints, motions, applications, notices and other documents, in any case in
respect of the lessee under such Lease or any other party under any Operating
Agreement or Tenant Guaranty under the Bankruptcy Code.
15.11 Bankruptcy.
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If there shall be filed by or against Grantor a petition under the
Bankruptcy Code, and Grantor, as lessor under any Lease or Operating Agreement,
shall determine to reject such Lease or Operating Agreement pursuant to Section
365(a) of the Bankruptcy Code, then Grantor shall give Beneficiary not less than
ten (10) days' prior notice of the date on which Grantor shall apply to the
bankruptcy court for authority to reject such Lease or Operating Agreement.
Beneficiary shall have the right, but not the obligation, to serve upon Grantor
within such ten-day period a notice stating that
(a) Beneficiary demands that Grantor assume and assign such
Lease or Operating Agreement to Beneficiary pursuant to Section 365 of the
Bankruptcy Code and
(b) Beneficiary covenants to cure or provide adequate
assurance of future performance under such Lease or Operating Agreement.
If Beneficiary serves upon Grantor the notice described in the preceding
sentence, Grantor shall not seek to reject such Lease or Operating Agreement and
shall comply with the demand provided for in clause (a) of the preceding
sentence within thirty (30) days after the notice shall have been given, subject
to the performance by Beneficiary of the covenant provided for in clause (b) of
the preceding sentence.
Section 16. STATE SPECIFIC PROVISIONS
16.1 Maximum Amount.
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[Notwithstanding anything contained herein to the contrary, the maximum
amount of principal indebtedness secured by this Mortgage at execution or which
under any contingency may become secured hereby at any time hereafter is
$[________] plus all accrued and unpaid interest thereon, plus amounts expended
by Beneficiary after an Event of Default hereunder to maintain the Lien of this
Mortgage or to protect the Mortgaged Property, including, without limitation,
amounts in respect of insurance premiums, real estate taxes and litigation
expenses to prosecute or defend the rights, remedies and Lien of this Mortgage
or title to the Mortgaged Property.]/4/
__________________________
/4/ In jurisdictions where more than an immaterial mortgage recording tax is
levied upon the recording of a mortgage, based upon the amount secured, the
amount secured will be
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Section 17. NOTICES
All notices, consents, approvals and requests required or permitted
hereunder shall be given the manner and shall be effective as provided in the
Credit Agreement:
If to Grantor: Federal-Mogul Corporation
World Headquarters
2655 Northwestern Highway
Southfield, Michigan 48034
Attention: James Keller
Telephone: 248-354-7700
Telecopy: 248-354-6746
with a copy to:
If to Beneficiary: The Chase Manhattan Bank
One Chase Manhattan Plaza
8/th/ Floor
Attention: James Tabois
New York, New York 10081
Telephone: 212-552-7952
Telecopy: 212-552-5650
With a copy to: Chase Manhattan International Ltd.
9 Thomas Moore Street
London, E1 (YT)
Attention: Steven Hurford
Telephone: 011-44-2-7-777-2347
Telecopy: 011-44-207-777-2367
________________________________________________________________________________
limited to 120% of the value of such property to be secured, as reasonably
determined by the Administrative Agent.
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Section 18. WAIVER OF JURY TRIAL; WAIVER OF CLAIMS
18.1 Trial by Jury.
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Grantor hereby irrevocably and unconditionally waives trial by jury in any
legal action or proceeding relating to this Mortgage or for any counterclaim
therein.
18.2 Submission To Jurisdiction; Waivers. Grantor hereby irrevocably
---------------------------------------------
and unconditionally:
(a) submits for itself and the Mortgaged Property in any legal
action or proceeding relating to this Mortgage or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive
general jurisdiction of the courts of the State of New York, the courts of
the United States of America for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts 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 by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to Grantor at its address referred to in Section 17 or at such
other address of which the Administrative Agent shall have been notified
pursuant thereto;
(d) agrees 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; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
Section 19. SEVERABILITY
Any provision of this Mortgage which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 20. LAST DOLLARS SECURED
This Mortgage secures only a portion of the Secured Obligations
owing or which may become owing by Grantor. The parties agree that any payments
or repayments of such Secured Obligations by Grantor shall be and be deemed to
be applied first to the portion of the
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Secured Obligations that is not secured hereby, it being the parties' intent
that the portion of the Secured Obligations last remaining unpaid shall be
secured hereby.
Section 21. RELEASES OR RECONVEYANCES
Upon written request of Beneficiary stating that (i) the Secured
Obligations have been paid in full (other than obligations which, pursuant to
the terms of the Credit Agreement, survive the termination of this Mortgage and
the repayment and performance of the Secured Obligations) or (ii) the Mortgaged
Property shall be sold, transferred or otherwise disposed of by Grantor in a
transaction permitted by the Credit Agreement, Trustee shall release or reconvey
to Grantor or to the Person or Persons legally entitled thereto, without
warranty, any portion of the Mortgaged Property then held hereunder. The
recitals in such reconveyance of any matters or facts shall be conclusive proof
of the truthfulness thereof.
Section 22. FURTHER ASSURANCES
To further assure Beneficiary's and Trustee's rights under this
Mortgage, Grantor agrees upon demand of Beneficiary or Trustee to do any act or
execute any additional documents as may be reasonably required by Beneficiary or
Trustee to confirm the rights or benefits conferred on Beneficiary or Trustee by
this Mortgage.
Section 23. [PRIORITY OF FIRST MORTGAGE]/5/
Notwithstanding anything to the contrary contained herein, in the
Credit Agreement any other Loan Document or any document or agreement relating
to the Mortgaged Property, the Lien of this Mortgage shall constitute a first
priority security Lien against the Mortgaged Property, subject to the Lien of
that certain [Mortgage][Deed of Trust], Assignment of Leases and Rents, and
Revenue and Fixture Filing executed by Grantor to Trustee for the benefit of
Beneficiary, dated as of the date hereof, securing the First Priority Secured
Obligations (as defined in the Credit Agreement), and to be recorded immediately
prior to the recordation of this Mortgage and those certain Liens permitted
accepted by Administrative Agent in the Title Insurance Policy delivered to
Admiistrative Agent on the date hereof.]
Section 24. CONFLICTS WITH CREDIT AGREEMENT
Notwithstanding anything in this Mortgage to the contrary, in the
event of a conflict or patent inconsistency between the terms of
this Mortgage and the Credit Agreement, the terms of the Credit
Agreement shall govern and apply.
Grantor hereby acknowledges receipt, without charge, of a true copy of this
Mortgage.
_________________________________
/5/ To be included in Mortgages securing the Other Secured Obligations. The
subordinate mortgage will provide that with respect to payment or
performance of identical obligations under a senior mortgage and the
subordinate mortgage, payment or performance of the obligation under the
senior mortgage will satisfy payment and performance of the comparable
subordinate mortgage obligation.
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IN WITNESS WHEREOF, Grantor has caused this Mortgage to be duly executed
and delivered as of the date first above written.
Signed and acknowledged in
the presence of:
[_____________________],
a ____________________
By:____________________________
Name:
Title:
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STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On the ___ day of __________ in the year 2000 before me, the undersigned, a
Notary Public in and for said State, personally appeared, __________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed in the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity (ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
_______________________________
Notary Public
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On the ___ day of __________ in the year 2000 before me, the undersigned, a
Notary Public in and for said State, personally appeared, __________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed in the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity (ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
_______________________________
Notary Public
EXHIBIT A
Description of Land