This Mortgage
was prepared by and
after recording should be returned to:
Skadden, Arps,
Slate, Meagher & Flom LLP
333 W. Wacker Drive
Suite 2100
Chicago, IL 60606
Attention: Christine Schneible
Credit Suisse,
as Administrative Agent
MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS, SECURITY AGREEMENT
AND FIXTURE FILING
Dated: As of
May 29, 2007
Location: 2400
West Central Road, Hoffman Estates, Illinois 60195
County: Cook
County, Illinois
1
MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS, SECURITY AGREEMENT
AND FIXTURE FILING
THIS MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE
FILING (with all amendments thereto, this “Mortgage”),
made and entered into on May 29, 2007, by and between
Claire’s Boutiques, Inc., a Colorado corporation, having its
principal place of business at 3 SW 129th Avenue, Suite 400,
Pembroke Pines, FL 33027 (“Mortgagor”) and Credit
Suisse, a national banking association, with a mailing address at
11 Madison Avenue, New York, NY 10010, in its capacity as
Administrative Agent for certain lenders (collectively, the
“Lenders” and, each individually, a
“Lender”) that are from time to time party to the
Credit Agreement (as defined below) (together with its successors
and assigns in such capacity, “Agent”).
WHEREAS, Mortgagor
is the fee owner of the Premises (as defined below);
WHEREAS, pursuant
to that certain Credit Agreement dated as of May 29, 2007
among Borrower (as defined therein), Bauble Holdings Corp., Agent,
Lenders and the other parties named therein (together with all
amendments, restatements, amendments and restatements,
modifications, supplements, extensions and renewals thereof, the
“Credit Agreement”) the Lenders have agreed to make to
or for the account of the Borrower certain Loans (as defined
below);
WHEREAS, Mortgagor
is a subsidiary of Borrower and Mortgagor will receive substantial
benefits from the execution, delivery and performance of the Loan
Documents and is, therefore, willing to enter into this
Mortgage;
WHEREAS, it is a
condition to (i) the obligations of the Lenders to make the
Loans under the Credit Agreement and (ii) the performance of
the obligations of the Secured Parties under the Loan Documents
that Mortgagor execute and deliver this Mortgage; and
WHEREAS, this
Mortgage is given by Mortgagor to Agent, for its benefit and the
benefit of the other Secured Parties to secure the payment and
performance of the Obligations (as defined below).
NOW, THEREFORE, to
secure the performance and observance by Borrower of all covenants
and conditions in the Credit Agreement, this Mortgage and in all
other instruments securing the Credit Agreement and for and in
consideration of the indebtedness hereinabove set forth and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Mortgagor, to the extent of its
interest in the Premises (as defined below), or any portion
thereof, does hereby grant, bargain, sell, alien, release, remise,
convey, assign, transfer, mortgage, hypothecate, pledge, deliver,
set over, warrant and confirm unto Agent, for the benefit of Agent
and the Secured Parties (as hereinafter defined), in trust with
power of sale (to the extent permitted by applicable law), all of
the following described land and interests in land, estates,
easements, rights, improvements, personal property, fixtures and
appurtenances (hereinafter collectively referred to as the
“Premises”):
2
(a) All that
tract(s) or parcel(s) of land more particularly described in
Exhibit A attached hereto and made a part hereof (the
“Real Property”);
(b) All minerals,
crops, trees, timber and other emblements now or hereafter located
on or under any of the Real Property;
(c) All buildings,
structures and other improvements now or hereafter located on the
Real Property (the “Improvements”);
(d) All and
singular easements, rights-of-way, strips and gores of land,
vaults, streets, alleys, passages, water rights, sewer rights and
powers, and all estates, rights, interests, royalties, tenements
and appurtenances whatsoever, in any way and at any time relating
to any of the Real Property;
(e) All building
materials, machinery, equipment, fixtures and appliances (whether
trade, ornamental, domestic or permanent fixtures) owned by
Mortgagor now or hereafter located on the Real Property (all of the
foregoing, together with all additions thereto, replacements
thereof and substitutions therefor and proceeds thereof,
hereinafter referred to collectively as “Personal Property
Collateral”);
(f) All Leases (as
hereinafter defined); and
(g) All monies and
proceeds derived by Mortgagor from the Real Property, Improvements,
Personal Property Collateral and Leases, including all Rents (as
hereinafter defined), revenues, issues, insurance proceeds,
profits, awards or judgments at any time arising out of or relating
to any of the foregoing Premises.
1.1
Secured Obligations. This Mortgage secures the
unconditional guarantee of Mortgagor to Agent and each Lender of
the prompt payment of the Obligations and the timely performance of
all other obligations under the Loan Documents. This Mortgage is
intended to secure not only presently existing obligations but also
future advances, whether such advances are obligatory or to be made
at the option of Agent, or otherwise, as are made within
20 years from the date hereof to the same extent as if such
future advances were made on the date of the execution of this
Mortgage and although there may be no advance made at the time of
execution of this Mortgage and although there may be no obligations
secured hereby outstanding at the time any advance is made.
Accordingly, to the fullest extent permitted by law, the lien of
this Mortgage shall be valid as to all obligations secured hereby,
including future advances, from the time of its filing for record
in the recorder’s or registrar’s office of the county
in which the real estate is located. The total amount of
obligations secured hereby may increase or decrease from time to
time, but the total unpaid balance secured hereby plus interest
thereon and any disbursements which Agent or Lenders may make under
this Mortgage, the Credit Agreement or any other document with
respect hereto or thereto (e.g., for payment of taxes, special
assessments or insurance on the real estate) and interest on such
disbursements shall not, at any one time outstanding, exceed the
total sum of One Billion Six Hundred Fifty Million Dollars
($1,650,000,000). This Mortgage is intended to and shall be valid
and have priority over all
3
subsequent
liens and encumbrances, including statutory liens, excepting solely
taxes and assessments levied on the real estate, to the extent of
the maximum amount secured hereby.
1.2
Maturity Date. The Obligations shall be due and
payable no later than the maturity date established in the Credit
Agreement.
1.3
Definitions . As used herein, the following
terms shall have the following meanings:
“ Credit
Agreement ” shall have the meaning ascribed to it in the
Recitals hereof.
“
Improvements ” shall have the meaning ascribed to it
earlier in this Mortgage.
“
Leases ” shall have the meaning ascribed to it in
Section 2.4(a) hereof.
“ Loan
Documents ” shall have the meaning ascribed to it in the
Credit Agreement.
“
Loans ” shall have the meaning ascribed to it in the
Credit Agreement.
“
Material Adverse Effect ” shall have the meaning
ascribed to it in the Credit Agreement.
“
Obligations ” shall have the meaning ascribed to it in
the Credit Agreement.
“
Permitted Liens ” shall have the meaning ascribed to
it in the Credit Agreement.
“
Person ” shall have the meaning ascribed to it in the
Credit Agreement.
“
Personal Property Collateral ” shall have the meaning
ascribed to it earlier in this Mortgage.
“
Premises ” shall have the meaning ascribed to it
earlier in this Mortgage.
“ Real
Property ” shall have the meaning ascribed to it earlier
in this Mortgage.
“
Rents ” shall have the meaning ascribed to it in
Section 2.4(b) hereof.
“ Secured
Party ” or “ Secured Parties ” shall
have the meaning ascribed to it in the Credit Agreement.
“
Taxes ” shall have the meaning ascribed to it in the
Credit Agreement.
1.4
Rules of Construction . The terms
“herein,” “hereof,” and
“hereunder” and other words of similar import refer to
this Mortgage as a whole and not to any particular section,
paragraph or subdivision. Any pronoun used herein shall be deemed
to cover all genders. All references to statutes and related
regulations shall include any amendments of same and any successor
statutes and regulations; all references to any of the Loan
Documents shall include any and all amendments, restatements,
amendments and restatements, modifications, supplements, extensions
and renewals thereof; all references to any Persons shall mean and
include the
4
successors and
permitted assigns of such Persons; all references to
“including” and “include” shall be
understood to mean “including, without limitation”; and
all references to the time of day shall mean the time of day on the
day in question in New York, New York, unless otherwise expressly
provided in this Mortgage or the Credit Agreement, in which case
the Credit Agreement shall control.
2.1
Payments by Mortgagor . Mortgagor will pay all Taxes,
insurance premiums, permit fees, inspection fees, license fees,
water and sewer charges, franchise fees and equipment rents and any
other charges or fees against it or the Premises (and Mortgagor,
upon request of Agent, will submit to Agent receipts evidencing
said payments) in accordance with the terms of the Credit
Agreement. Mortgagor shall pay all mortgage recording fees,
documentary taxes or similar fees or taxes upon presentation of
this Mortgage for recording.
2.2
General Representations and Warranties . Mortgagor
hereby represents and warrants to Agent and Lenders:
(a) Mortgagor has
good and marketable fee simple title to the Premises subject only
to Permitted Liens;
(b) Mortgagor has
full power and lawful authority to encumber the Premises in the
manner and in the form set forth herein; and
(c) Except for
fixtures that may be owned by tenants of the Real Property,
Mortgagor owns all Personal Property Collateral now or hereafter
comprising part of the Premises, including any substitutions or
replacements thereof, free and clear of all liens except Permitted
Liens.
2.3
Ownership, Use and Care of the Premises
.
(a) Except in each
case to the extent permitted by the Credit Agreement, Mortgagor
shall not sell, convey, transfer, mortgage or otherwise dispose of
or encumber any part of the Premises or any interest therein and,
except for Permitted Liens, Mortgagor shall keep the Premises free
and clear of all liens.
(b) Mortgagor
shall maintain and keep the Improvements now or hereafter erected
on the Property in good condition and repair (ordinary wear and
tear and casualty events excepted), shall not commit or suffer any
waste, and shall cause the Premises and Mortgagor’s use
thereof to be in compliance in all material respects with
applicable law.
(c) Mortgagor
shall promptly notify Agent of any loss, damage or destruction to,
or condemnation or taking of, the Premises (whether by fire or any
other cause) in accordance with the Credit Agreement and any
insurance proceeds or awards shall be applied in accordance with
the Credit Agreement.
5
(d) Agent or its
representative is hereby authorized to enter upon and inspect the
Premises as provided for in the Credit Agreement.
(a) Mortgagor
hereby sells, assigns, sets over and transfers to Agent, for the
benefit of Secured Parties, Mortgagor’s interest in any and
all leases, usufructs, tenant contracts and rental agreements and
other contracts, licenses and permits (all of which are sometimes
herein referred to as the “Leases”) now or hereafter
affecting or in any manner relating to the Premises, or any part
thereof. Mortgagor agrees to execute and deliver such other
instruments as Agent may reasonably require evidencing the
assignment of the Leases.
(b) Mortgagor
hereby sells, assigns, sets over and transfers to Agent, for the
benefit of Secured Parties, all of the rents, tenant
reimbursements, issues and profits which shall hereafter become due
or be paid for the use of the Premises or any part thereof, and all
rents, tenant reimbursements, issues and profits arising under the
Leases or any thereof (all of which are sometimes herein referred
to as the “Rents”), reserving to Mortgagor a license to
collect the Rents only so long as there is no Event of Default
which shall have occurred and be continuing, said license to be
revoked immediately upon the occurrence of an Event of Default and
Agent’s demand for the payment of the Obligations. Mortgagor
agrees to execute and deliver such other instruments as Agent may
reasonably require evidencing the assignment of the
Rents.
(c) Should the
Premises be involved in any insolvency, receivership, bankruptcy,
or similar proceedings affecting the possession of the Premises, it
is further covenanted and agreed that Agent shall be entitled to
receive for the benefit of Secured Parties all of the Rents
realized from or during any such proceedings. Such Rents shall be
treated as cash collateral.
(d)
Notwithstanding the right to collect the Rents, Mortgagor agrees
that Agent, and not Mortgagor, shall be and shall be deemed to be
the creditor of each tenant with respect to assignments for the
benefit of creditors, and bankruptcy, arrangement, reorganization,
insolvency, dissolution or receivership proceedings affecting each
such tenant, but without obligation on the part of Agent or
Lenders, however, to file or make timely filings of claims in any
such proceedings, or otherwise to pursue a creditor’s rights
therein.
(e) Agent shall
have the right to assign Mortgagor’s right, title and
interest in the Leases to any subsequent holder of this Mortgage,
or to any Person acquiring title to any of the Premises through
foreclosure, power of sale, or similar legal process after the
occurrence of an Event of Default. After Mortgagor shall have been
barred and foreclosed of all right, title, interest, and equity of
redemption in the Premises, no assignee of Mortgagor’s
interest in the Leases shall be liable to account to Mortgagor for
the Rents thereafter accruing.
6
(f) Nothing
contained herein shall be construed to bind Agent or any Lender or
obligate Agent or any Lender to perform any of the terms or
provisions contained in the Leases, or otherwise to impose any
obligation on Agent or any Lender whatsoever. Prior to actual entry
and taking possession of the Premises by Agent, this assignment
shall not operate to make Agent a
“mortgagee-in-possession” or to place any
responsibility for the control, care, management, or repair of the
Premises upon Agent or any Lender.
(g) Mortgagor
shall duly perform and discharge each respective covenant,
condition and obligation under the Leases, except where such
noncompliance could not reasonably be expected to have a Material
Adverse Effect. Mortgagor will give written notice to Agent of any
material default under the Leases known to Mortgagor, and shall
furnish Agent with complete copies of all notices with respect
thereto given or received by Mortgagor. If requested by Agent after
the occurrence and during the continuance of an Event of Default,
Mortgagor will enforce the Leases and remedies available to
Mortgagor thereunder in the event of a default thereunder, and, if
Mortgagor shall fail to so exercise such remedies upon request,
Agent may, at its sole option and without obligation to do so, and
without waiving any Event of Default of Mortgagor hereunder with
respect thereto, enforce the same at Mortgagor’s
expense.
(a)
Mortgagor shall maintain, during the term of this Mortgage, such
insurance, including flood insurance, related to the Premises as is
required pursuant to, and in accordance with, the Credit
Agreement.
(b) All
such insurance policies with respect to the Premises shall contain
a standard, non-contributory mortgagee clause naming Agent, and its
successors and assigns, as an additional insured under all
liability insurance policies, as the first mortgagee and loss payee
on all property insurance policies, and as the sole loss payee on
all rental loss or business interruption insurance policies.
Mortgagor shall not take out separate insurance with respect to the
Premises concurrent in form or contributing in the event of loss
with that required to be maintained hereunder or under the Credit
Agreement unless Agent is named as an additional insured thereon
under a standard mortgagee clause acceptable to Agent and each such
policy is otherwise in form and substance acceptable to
Agent.
(c) In
the event of the foreclosure of this Mortgage, or in the event of
any transfer of title to the Premises, or any part thereof, by
foreclosure sale or by power of sale or deed in lieu of
foreclosure, the purchaser of the Premises, or such part thereof,
shall succeed to all of Mortgagor’s rights with respect to
the Premises, including any rights to unexpired, unearned or
returnable insurance premiums, subject to limitations on the
assignment of blanket policies, but limited to such rights as
relate to the Premises or such part thereof. If Agent acquires
title to the Premises, or any part thereof, in any manner, Agent
shall thereupon (as between Mortgagor and Agent) become the sole
and absolute owner of the insurance policies with respect to the
Premises, and all insurance proceeds payable thereunder with
respect to the Premises, with the sole right to collect and retain
all unearned or returnable premiums thereon with respect to the
Premises, or such part thereof, if any.
7
2.6
Condemnation . In the case of any taking,
condemnation or other proceeding in the nature thereof, Agent may,
at its option, participate in any proceedings or negotiations which
might resul
|
