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HomeMy WebLinkAbout957879RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Hunton Williams LLP Bank of America Plaza, Suite 4100 600 Peachtree Street, N.E. Atlanta, Georgia 30308 -2216 Attn: John R. Schneider, Esq. RECEIVED 2/1/2011 at 3:16 PM RECEIVING 957879 BOOK: 761 PAGE: 644 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY 000644 Space above this line for recorder's use only SECOND LIEN MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND LEASES AND FIXTURE FILING This SECOND LIEN MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND LEASES AND FIXTURE FILING, dated as of December 31, 2010 (this "Mortgage is by and from SIMMONS -SLC, LLC, a Utah limited liability company "Mortgagor to GOLDMAN SACHS SPECIALTY LENDING GROUP, L.P., as Agent and sole Lead Arranger (in such capacity, "Agent" or "Mortgagee 2 Lien Mortgage Kemerer WY 33922226 RECITALS: WHEREAS, reference is made to that certain Second Lien Credit and Guaranty Agreement, dated as of the date hereof (as it may be amended, restated, supplemented or otherwise modified, the "Credit Agreement the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among the Borrowers named therein, including Simmons Media Group, LLC, "Borrowers certain Subsidiaries of Borrowers, as Guarantors, the Lenders party thereto from time to time, and GOLDMAN SACHS SPECIALTY LENDING GROUP, L.P., as Agent and sole Lead Arranger (in such capacity, "Agent WHEREAS, under the Credit Agreement, Agent has made certain term loans in the aggregate principal amount of $33,000,000; WHEREAS, subject to the terms and conditions of the Credit Agreement, Mortgagor may enter into one or more Hedge Agreements with one or more Lender Counterparties; and WHEREAS, in consideration of the extensions of credit and other accommodations of Lenders and Lender Counterparties as set forth in the Credit Agreement and the Hedge Agreements, respectively, Mortgagor has agreed, subject to the terms and conditions hereof, each other Credit Document and each of the Hedge Agreements, to secure Mortgagor's obligations under the Credit Documents and the Hedge Agreements as set forth herein; and SECTION 1. DEFINITIONS 000645 NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, Mortgagor and Mortgagee agree as follows: 1.1. Definitions. Capitalized terms used herein (including the recitals hereto) not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement. In addition, as used herein, the following terms shall have the following meanings: "Indebtedness" means (i) with respect to Borrowers, all obligations and liabilities of every nature of Borrowers now or hereafter existing under or arising out of or in connection with the Credit Agreement and the other Credit Documents and any Hedge Agreement; and (ii) with respect to any other Mortgagor, all obligations and liabilities of every nature of such Mortgagor now or hereafter existing under or arising out of or in connection with any other Credit Document, in each case together with all extensions or renewals thereof, whether for principal, interest (including interest that, but for the filing of a petition in bankruptcy with respect to Borrowers, would accrue on such obligations, whether or not a claim is allowed against Borrowers for such interest in the related bankruptcy proceeding), reimbursement of amounts drawn under Letters of Credit, payments for early termination of Hedge Agreements, fees, expenses, indemnities or otherwise, whether voluntary or involuntary, direct or indirect, absolute or contingent, liquidated or unliquidated, whether or not jointly owed with others, and whether or not from time to time decreased or extinguished and later increased, created or incurred, and all or any portion of such obligations or liabilities that are paid, to the extent all or any part of such payment is avoided or recovered directly or indirectly from Mortgagor, any Lender or Lender Counterparty as a preference, fraudulent transfer or otherwise, and all obligations of every nature of Mortgagor now or hereafter existing under this Agreement. "Property" means all of Mortgagor's interest in (i) the real property described in Exhibit A, together with any greater or additional estate therein as hereafter may be acquired by Mortgagor (the "Land (ii) all improvements now owned or hereafter acquired by Mortgagor, now or at any time situated, placed or constructed upon the Land subject to the Permitted Liens and the First Lien Mortgage (as defined in Section 12 below), (the "Improvements the Land and Improvements are collectively referred to as the "Premises (iii) all materials, supplies, equipment, apparatus and other items of personal property now owned or hereafter acquired by Mortgagor and now or hereafter attached to, installed in or used in connection with any of the Improvements or the Land, and water, gas, electrical, telephone, storm and sanitary sewer facilities and all other utilities whether or not situated in easements (the "Fixtures (iv) all right, title and interest of Mortgagor in and to all goods, accounts, general intangibles, instruments, documents, chattel paper and all other personal property of any kind or character, including such items of personal property as defined in the UCC (defined below), now owned or hereafter acquired by Mortgagor and now or hereafter affixed to, placed upon, used in connection with, arising from or otherwise related to the Premises (the "Personalty (v) all reserves, escrows or impounds required under the Credit Agreement and all deposit accounts maintained by Mortgagor with respect to the Property (the "Deposit Accounts (vi) all leases, licenses, concessions, occupancy agreements or other agreements (written or oral, now or at any time in effect) which grant to any Person (other than Mortgagor) a possessory interest in, or the 2 °d Lien Mortgage Kemerer WY 2 33922226 000646 right to use, all or any part of the Property, together with all related security and other deposits subject to depositors rights and requirements of law (the "Leases (vii) all of the rents, revenues, royalties, income, proceeds, profits, security and other types of deposits subject to depositors rights and requirements of law, and other benefits paid or payable by parties to the Leases for using, leasing, licensing, possessing, operating from, residing in, selling or otherwise enjoying the Property (the "Rents (viii) to the extent mortgageable or assignable all other agreements, such as construction contracts, architects' agreements, engineers' contracts, utility contracts, maintenance agreements, management agreements, service contracts, listing agreements, guaranties, warranties, permits, licenses, certificates and entitlements in any way relating to the construction, use, occupancy, operation, maintenance, enjoyment or ownership of the Property (the "Property Agreements (ix) to the extent mortgageable or assignable all rights, privileges, tenements, hereditaments, rights -of -way, easements, appendages and appurtenances appertaining to the foregoing; (x) all property tax refunds payable to Mortgagor (the "Tax Refunds (xi) all accessions, replacements and substitutions for any of the foregoing and all proceeds thereof (the "Proceeds (xii) all insurance policies, unearned premiums therefor and proceeds from such policies covering any of the above property now or hereafter acquired by Mortgagor (the "Insurance and (xiii) all of Mortgagor's right, title and interest in and to any awards, damages, remunerations, reimbursements, settlements or compensation heretofore made or hereafter to be made by any governmental authority pertaining to the Land, Improvements, Fixtures or Personalty (the "Condemnation Awards As used in this Mortgage, the term "Property" shall mean all or, where the context permits or requires, any portion of the above or any interest therein. "Obligations" means all of the agreements, covenants, conditions, warranties, representations and other obligations of Mortgagor (including, without limitation, the obligations defined in the Credit Agreement and the obligation to repay the Indebtedness) under the Credit Agreement, any other Credit Documents or any of the Hedge Agreements. "UCC" means the Uniform Commercial Code of New York or, if the creation, perfection and enforcement of any security interest herein granted is governed by the laws of a state other than New York, then, as to the matter in question, the Uniform Commercial Code in effect in that state. 1.2. Interpretation. References to "Sections" shall be to Sections of this Mortgage unless otherwise specifically provided. Section headings in this Mortgage are included herein for convenience of reference only and shall not constitute a part of this Mortgage for any other purpose or be given any substantive effect. The rules of construction set forth in Section 1.3 of the Credit Agreement shall be applicable to this Mortgage mutatis mutandis. If any conflict or inconsistency exists between this Mortgage and the Credit Agreement, the Credit Agreement shall govern. SECTION 2. GRANT To secure the full and timely payment of the Indebtedness and the full and timely performance of the Obligations, Mortgagor MORTGAGES, GRANTS, BARGAINS, ASSIGNS, SELLS and CONVEYS to Mortgagee, with power of sale the Property, subject, however, to the 2 °a L Mortgage Kemerer WY 33922226 3 000647 Permitted Liens, and the First Lien Mortgage (as defined in Section 12 below), TO HAVE AND TO HOLD the Property and Mortgagor does hereby bind itself, its successors and assigns to WARRANT AND FOREVER DEFEND the title to the Property unto Mortgagee for so long as any of the Obligations remain outstanding. SECTION 3. WARRANTIES, REPRESENTATIONS AND COVENANTS 3.1. Title. Mortgagor represents and warrants to Mortgagee and Mortgagee that except for the Permitted Liens, and the First Lien Mortgage (as defined in Section 12 below), (a) Mortgagor owns the Property free and clear of any liens, claims or interests, and (b) this Mortgage creates valid, enforceable second priority liens and security interests against the Property. 3.2. Second Lien Status. Mortgagor shall preserve and protect the second lien and security interest status of this Mortgage and the other Credit Documents to the extent related to the Property. If any lien or security interest other than a Permitted Lien is asserted against the Property, Mortgagor shall promptly, and at its expense, (a) give Mortgagee a detailed written notice of such lien or security interest (including origin, amount and other terms), and (b) pay the underlying claim in full or take such other action so as to cause it to be released. 3.3. Payment and Performance. Mortgagor shall pay the Indebtedness when due under the Credit Documents and shall perform the Obligations in full when they are required to be performed as required under the Credit Documents. 3.4. Replacement of Fixtures and Personalty. Mortgagor shall not, without the prior written consent of Mortgagee, permit any of the Fixtures or Personalty to be removed at any time from the Land or Improvements, unless the removed item is removed temporarily for maintenance and repair or, if removed permanently, is obsolete and is replaced by an article of equal or better suitability and value, owned by Mortgagor subject to the liens and security interests of this Mortgage and the other Credit Documents, and free and clear of any other lien or security interest except such as may be permitted under the Credit Agreement or first approved in writing by Mortgagee. 3.5. Inspection. Mortgagor shall permit Mortgagee, and Mortgagee's agents, representatives and employees, upon reasonable prior notice to Mortgagor, to inspect the Property and all books and records of Mortgagor located thereon, and to conduct such environmental and engineering studies as Mortgagee may reasonably require; provided, such inspections and studies shall not materially interfere with the use and operation of the Property. 3.6. Covenants Running with the Land. All Obligations contained in this Mortgage are intended by Mortgagor and Mortgagee to be, and shall be construed as, covenants running with the Property. As used herein, "Mortgagor" shall refer to the party named in the first paragraph of this Mortgage and to any subsequent owner of all or any portion of the Property. All Persons who may have or acquire an interest in the Property shall be deemed to have notice of, and be bound by, the terms of the Credit Agreement and the other Credit Documents; however, no such party shall be entitled to any rights thereunder without the prior written 2 Lien Mortgage Kemerer WY 4 33922226 000648 consent of Mortgagee. In addition, all of the covenants of Mortgagor in any Credit Document party thereto are incorporated herein by reference and, together with covenants in this Section, shall be covenants running with the land. 3.7. Condemnation Awards and Insurance Proceeds. Mortgagor assigns all awards and compensation to which it is entitled for any condemnation or other taking, or any purchase in lieu thereof, to Mortgagee and authorizes Mortgagee to collect and receive such awards and compensation and to give proper receipts and acquittances therefor, subject to the terms of the Credit Agreement. Mortgagor assigns to Mortgagee all proceeds of any insurance policies insuring against loss or damage to the Property, subject to the terms of the Credit Agreement. Mortgagor authorizes Mortgagee to collect and receive such proceeds and authorizes and directs the issuer of each of such insurance policies to make payment for all such losses directly to Mortgagee, instead of to Mortgagor and Mortgagee jointly, subject to the terms of the Credit Agreement. 3.8. Change in Tax Law. Upon the enactment of or change in (including, without limitation, a change in interpretation of) any applicable law (i) deducting or allowing Mortgagor to deduct from the value of the Property for the purpose of taxation any lien or security interest thereon or (ii) subjecting Mortgagee or any of the Lenders to any tax or changing the basis of taxation of mortgages, deeds of trust, or other liens or debts secured thereby, or the manner of collection of such taxes, in each such case, so as to affect this Mortgage, the Indebtedness or Mortgagee, and the result is to increase the taxes imposed upon or the cost to Mortgagee of maintaining the Indebtedness, or to reduce the amount of any payments receivable hereunder, then, and in any such event, Mortgagor shall, on demand, pay to Mortgagee and the Lenders additional amounts to compensate for such increased costs or reduced amounts, provided that if any such payment or reimbursement shall be unlawful, or taxable to Mortgagee, or would constitute usury or render the Indebtedness wholly or partially usurious under applicable law, then Mortgagor shall pay or reimburse Mortgagee or the Lenders for payment of the lawful and non usurious portion thereof. 3.9. Tax. Mortgagor shall (i) pay when due any tax imposed upon it or upon Mortgagee or any Lender pursuant to the tax law of the state in which the Property is located in connection with the execution, delivery and recordation of this Mortgage and any of the other Credit Documents, and (ii) prepare, execute and file any form required to be prepared, executed and filed in connection therewith. 3.10. Reduction Of Secured Amount. In the event that the amount secured by the Mortgage is less than the Indebtedness, then the amount secured shall be reduced only by the last and final sums that Mortgagor (or Borrowers) repays with respect to the Indebtedness and shall not be reduced by any intervening repayments of the Indebtedness unless arising from the Property. So long as the balance of the Indebtedness exceeds the amount secured, any payments of the Indebtedness shall not be deemed to be applied against, or to reduce, the portion of the Indebtedness secured by this Mortgage. Such payments shall instead be deemed to reduce only such portions of the Indebtedness as are secured by other collateral located outside of the state in which the Property is located or as are unsecured. 2 Lien Mortgage Kemerer WY 5 33922226 SECTION 4. DEFAULT AND REMEDIES 000649 4.1. General Remedies. If an Event of Default has occurred and is continuing, Mortgagee may, at Mortgagee's election, exercise any or all of the following rights, remedies and recourses, in addition to all other rights and remedies set forth in this Section 4, subject to all requirements of applicable law: (a) declare the Indebtedness to be immediately due and payable, without further notice, presentment, protest, notice of intent to accelerate, notice of acceleration, demand or action of any nature whatsoever (each of which hereby is expressly waived by Mortgagor), whereupon the same shall become immediately due and payable; (b) enter the Property and take exclusive possession thereof and of all books, records and accounts of Mortgagor relating thereto and located thereon; (c) if Mortgagor remains in possession of the Property without Mortgagee's written consent, to the extent permitted by law invoke any legal remedies to dispossess Mortgagor; (d) hold, lease, develop, manage, operate or otherwise use the Property upon such terms and conditions as Mortgagee may deem reasonable under the circumstances (making such repairs, alterations, additions and improvements and taking other actions, from time to time, as Mortgagee deems necessary or desirable); (e) apply all Rents and other amounts collected by Mortgagee in connection with the Property in accordance with the provisions hereof; and (f) make application to a court of competent jurisdiction for the appointment of a receiver of the Property (and Mortgagor irrevocably consents to such appointment) and any such receiver shall have all the usual powers and duties of receivers in similar cases, including the full power to rent, maintain and otherwise operate the Property upon such terms as may be approved by the court, and shall apply such Rents in accordance with the provisions hereof; and/or (g) exercise all other rights, remedies and recourses granted under the Credit Documents or otherwise available at law or in equity. 4.2. Notice of Default. Upon the occurrence of an Event of Default, Mortgagee may elect to have the Property sold in the manner provided herein. Notwithstanding anything to the contrary in the foregoing, all foreclosure procedures shall be conducted in compliance with applicable law. Mortgagor requests that a copy of any notice of default and of any notice of sale hereunder be mailed to Mortgagor at the address for notices set forth in the Credit Agreement. 4.3. Exercise of Power of Sale. After notice of default and notice of sale having been given as then required by law, Mortgagee, without demand on Mortgagor, shall sell the Property on the date and at the time and place designated in the notice of sale, either as a whole or in separate parcels, and in such order as Mortgagee may determine (but subject to any statutory right of Mortgagor to direct the order in which such property, if consisting of several known lots or parcels, shall be sold), at public foreclosure sale to the highest bidder, the purchase price payable in lawful money of the United States at the time of sale. The Sheriff conducting the sale may, for any cause deemed expedient, postpone the sale from time to time until it shall be completed and, in every such case, notice of postponement shall be given in the manner required by law. Any person, including Mortgagee, may bid at the sale. The purchaser shall receive a Sheriff's Deed conveying the Property so sold in accordance with Wyoming law. The recitals in the Sheriff's Deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Mortgagee shall apply the proceeds of the sale to payment of (a) the costs and expenses of exercising the power of sale and of the sale, including 2 Lien Mortgage Kemerer WY 6 33922226 000650 the payment of the Mortgagee's fees and costs and reasonable attorneys fees and legal expenses; (b) cost of any evidence of title procured in connection with such sale; (c) all sums expended under the terms hereof in conjunction with any default provision hereunder, not then repaid, with accrued interest at the highest default rate provided for in the Credit Agreement; (d) all obligations secured by this Mortgage; and (e) the remainder, if any, to the person or persons legally entitled thereto under Wyoming law. Notwithstanding anything to the contrary in the foregoing, all procedures shall be conducted in compliance with applicable law. 4.4. Surrender of Possession. If possession has not previously been surrendered by Mortgagor, Mortgagor shall surrender possession of the Property to the purchaser as provided under Wyoming law. 4.5. UCC Remedies. Notwithstanding anything to the contrary herein, with regard to all fixtures and personal property conveyed to Mortgagee by this Mortgage, Mortgagee shall have the right, at the option of Mortgagee, to exercise any and all rights and remedies available to Mortgagee as a secured party under the Uniform Commercial Code of Utah, and any and all rights and remedies available to Mortgagee at law, in equity, or by statute. Upon written demand from Mortgagee, Mortgagor shall, at Mortgagor's expense, assemble such fixtures and personal property and make them available to Mortgagee at a reasonably convenient place designated by Mortgagee. 4.6. Remedies Cumulative, Concurrent and Nonexclusive. Mortgagee shall have all rights, remedies and recourses granted in the Credit Documents and available at law or equity (including the UCC), which rights (a) shall be cumulated and concurrent, (b) may, to the greatest extent permitted by law, be pursued separately, successively or concurrently against Mortgagor or others obligated under the Credit Documents, or against the Property, or against any one or more of them, at the sole discretion of Mortgagee or the Lenders, (c) may be exercised as often as occasion therefor shall arise, and the exercise or failure to exercise any of them shall not be construed as a waiver or release thereof or of any other right, remedy or recourse, and (d) are intended to be, and shall be, nonexclusive. No action by Mortgagee or the Lenders in the enforcement of any rights, remedies or recourses under the Credit Documents or otherwise at law or equity shall be deemed to cure any Event of Default. 4.7. Release of and Resort to Collateral. Mortgagee may release, regardless of consideration and without the necessity for any notice to or consent by the holder of any subordinate lien on the Property, any part of the Property without, as to the remainder, in any way impairing, affecting, subordinating or releasing the lien or security interest created in or evidenced by the Credit Documents or their status as a first and prior lien and security interest in and to the Property. For payment of the Indebtedness, Mortgagee may resort to any other security in such order and manner as Mortgagee may elect. 4.8. Waiver of Redemption, Notice and Marshalling of Assets. To the fullest extent permitted by law, Mortgagor hereby irrevocably and unconditionally waives and releases (a) all benefit that might accrue to Mortgagor by virtue of any present or future statute of limitations or law or judicial decision exempting the Property from attachment, levy or sale on execution or providing for any stay of execution, exemption from civil process, redemption or extension of 2 Lien Mortgage Kemerer WY 7 33922226 000651 time for payment; (b) all notices of any Event of Default or of Mortgagee's election to exercise or the actual exercise of any right, remedy or recourse provided for under the Credit Documents; and (c) any right to a marshalling of assets or a sale in inverse order of alienation. 4.9. Discontinuance of Proceedings. If Mortgagee or the Lenders shall have proceeded to invoke any right, remedy or recourse permitted under the Credit Documents and shall thereafter elect to discontinue or abandon it for any reason, Mortgagee or the Lenders shall have the unqualified right to do so and, in such an event, Mortgagor and Mortgagee or the Lenders shall be restored to their former positions with respect to the Indebtedness, the Obligations, the Credit Documents, the Property and otherwise, and the rights, remedies, recourses and powers of Mortgagee or the Lenders shall continue as if the right, remedy or recourse had never been invoked, but no such discontinuance or abandonment shall waive any Event of Default which may then exist or the right of Mortgagee or the Lenders thereafter to exercise any right, remedy or recourse under the Credit Documents for such Event of Default. 4.10. Application of Proceeds. The proceeds of any sale of, and the Rents and other amounts generated by the holding, leasing, management, operation or other use of the Property, shall be applied by Mortgagee (or the receiver, if one is appointed) in the following order unless otherwise required by applicable law: first, to the payment of the costs and expenses of taking possession of the Property and of holding, using, leasing, repairing, improving and selling the same, including, without limitation, (a) receiver's fees and expenses, including the repayment of the amounts evidenced by any receiver's certificates, (b) court costs, (c) reasonable attorneys' and accountants' fees and expenses, (d) costs of advertisement; and second, as provided in Section 2.15 of the Credit Agreement. 4.11. Occupancy After Foreclosure. Any sale of the Property or any part thereof will divest all right, title and interest of Mortgagor in and to the property sold to the fullest extent permitted by law. Subject to applicable law, any purchaser at a foreclosure sale will receive immediate possession of the property purchased. If Mortgagor retains possession of such property or any part thereof subsequent to such sale, to the extent permitted by law, Mortgagor will be considered a tenant at sufferance of the purchaser, and will, if Mortgagor remains in possession after demand to remove, be subject to eviction and removal, forcible or otherwise, with or without process of law. 4.12. Additional Advances and Disbursements; Costs of Enforcement. If any Event of Default exists, Mortgagee and each of the Lenders shall have the right, but not the obligation, to cure such Event of Default in the name and on behalf of Mortgagor in accordance with the Credit Agreement. All sums advanced and expenses incurred at any time by Mortgagee or any Lender under this Section, or otherwise under this Mortgage or any of the other Credit Documents or applicable law, shall bear interest from the date that such sum is advanced or expense incurred if not repaid within five (5) days after demand therefor, to and including the date of reimbursement, computed at the rate or rates at which interest is then computed on the Indebtedness, and all such sums, together with interest thereon, shall be secured by this Mortgage. Mortgagor shall pay all expenses (including reasonable attorneys' fees and expenses) of or incidental to the perfection and enforcement of this Mortgage and the other Credit Documents, or the enforcement, compromise or settlement of the Indebtedness or any claim 2 °d Lien Mortgage Kemerer WY 8 33922226 000652 under this Mortgage and the other Credit Documents, and for the curing thereof, or for defending or asserting the rights and claims of Mortgagee or the Lenders in respect thereof, by litigation or otherwise. 4.13. No Mortgagee in Possession. Neither the enforcement of any of the remedies under this Section, the assignment of the Rents and Leases under Section 5, the security interests under Section 6, nor any other remedies afforded to Mortgagee or the Lenders under the Credit Documents, at law or in equity shall cause Mortgagee or any Lender to be deemed or construed to be a Mortgagee in possession of the Property, to obligate Mortgagee or any Lender to lease the Property or attempt to do so, or to take any action, incur any expense, or perform or discharge any obligation, duty or liability whatsoever under any of the Leases or otherwise. 4.14. Effect of Sale. At any sale of the Property pursuant to this Section 4, to the extent permitted by law, the title to and right of possession of any such property shall pass to the purchaser thereof, and to the fullest extent permitted by law, Mortgagor shall be completely and irrevocably divested of all of its right, title, interest, claim, equity, equity of redemption, and demand whatsoever, either at law or in equity, in and to the property sold and such sale shall be a perpetual bar both at law and in equity against Mortgagor, and against all other Persons claiming or to claim the property sold or any part thereof, by, through or under Mortgagor. SECTION 5. ASSIGNMENT OF RENTS AND LEASES 5.1. Assignment. In furtherance of and in addition to the assignment made by Mortgagor herein, Mortgagor hereby absolutely and unconditionally assigns, sells, transfers and conveys to Mortgagee all of its right, title and interest in and to all Leases, whether now existing or hereafter entered into, and all of its right, title and interest in and to all Rents. This assignment is an absolute assignment and not an assignment for additional security only. So long as no Event of Default shall have occurred and be continuing, Mortgagor shall have a revocable license from Mortgagee to exercise all rights extended to the landlord under the Leases, including the right to receive and collect all Rents and to hold the Rents in trust for use in the payment and performance of the Obligations and to otherwise use the same. The foregoing license is granted subject to the conditional limitation that no Event of Default shall have occurred and be continuing. Upon the occurrence and during the continuance of an Event of Default, whether or not legal proceedings have commenced, and without regard to waste, adequacy of security for the Obligations or solvency of Mortgagor, the license herein granted shall automatically expire and terminate, without notice by Mortgagee (any such notice being hereby expressly waived by Mortgagor). 5.2. Perfection Upon Recordation. Mortgagor acknowledges that Mortgagee has taken all reasonable actions necessary to obtain, and that upon recordation of this Mortgage, Mortgagee shall have, to the extent permitted under applicable law, a valid and fully perfected, second priority, present assignment of the Rents arising out of the Leases and all security for such Leases subject to the Permitted Liens and the First Lien Mortgage (as defined in Section 12 below) and in the case of security deposits, rights of depositors and requirements of law. Mortgagor acknowledges and agrees that upon recordation of this Mortgage, Mortgagee's interest in the Rents shall, to the fullest extent permitted by law, be deemed to be fully perfected, 2 °d Lien Mortgage Kemerer WY 9 33922226 SECTION 6. SECURITY AGREEMENT 2' Lien Mortgage Kemerer WY 10 33922226 000653 "choate" and enforced as to Mortgagor and all third parties, including, without limitation, any subsequently appointed Trustee in any case under Title 11 of the United States Code (the "Bankruptcy Code without the necessity of commencing a foreclosure action with respect to this Mortgage, making formal demand for the Rents, obtaining the appointment of a receiver or taking any other affirmative action. 5.3. Bankruptcy Provisions. Without limitation of the absolute nature of the assignment of the Rents hereunder, Mortgagor and Mortgagee agree that (a) this Mortgage shall constitute a "security agreement" for purposes of Section 552(b) of the Bankruptcy Code, (b) the security interest created by this Mortgage extends to property of Mortgagor acquired before the commencement of a case in bankruptcy and to all amounts paid as Rents, and (c) such security interest shall extend to all Rents acquired by the estate after the commencement of any case in bankruptcy. 6.1. Security Interest. This Mortgage constitutes a "security agreement" on personal property within the meaning of the UCC and other applicable law and with respect to the Personalty, Fixtures, Leases, Rents, Deposit Accounts, Property Agreements, Tax Refunds, Proceeds, Insurance and Condemnation Awards. To this end, Mortgagor grants to Mortgagee a first and prior security interest in the Personalty, Fixtures, Leases, Rents, Deposit Accounts, Property Agreements, Tax Refunds, Proceeds, Insurance, Condemnation Awards and all other Property which is personal property to secure the payment of the Indebtedness and performance of the Obligations subject to the Permitted Liens, and the First Lien Mortgage (as defined in Section 12 below), and agrees that Mortgagee shall have all the rights and remedies of a secured party under the UCC with respect to such property. Any notice of sale, disposition or other intended action by Mortgagee with respect to the Personalty, Fixtures, Leases, Rents, Deposit Accounts, Property Agreements, Tax Refunds, Proceeds, Insurance and Condemnation Awards sent to Mortgagor at least ten (10) days prior to any action under the UCC shall constitute reasonable notice to Mortgagor. 6.2. Financing Statements. Mortgagor hereby authorizes Mortgagee to file, in form and substance satisfactory to Mortgagee, such financing statements and other documents as Mortgagee may, from time to time, reasonably consider necessary to create, perfect and preserve Mortgagee's security interest hereunder and Mortgagee may cause such statements and assurances to be recorded and filed, at such times and places as may be required or permitted by law to so create, perfect and preserve such security interest. Mortgagor's chief executive office is at the address set forth on Appendix B to the Credit Agreement. 6.3. Fixture Filing. This Mortgage shall also constitute a "fixture filing" for the purposes of the UCC against all of the Property which is or is to become fixtures. Information concerning the security interest herein granted may be obtained at the addresses of Debtor (Mortgagor) and Secured Party (Mortgagee) as set forth in the first paragraph of this Mortgage. Mortgagor authorizes Mortgagee to file one or more fixture filings deemed by Mortgagee to be necessary or appropriate to perfect Mortgagee's security interest in fixtures, wherever located. SECTION 7. ATTORNEY -IN -FACT 000654 Mortgagor hereby irrevocably appoints Mortgagee and its successors and assigns, as its attorney -in -fact, which agency is coupled with an interest and with full power of substitution, (a) to execute and /or record any notices of completion, cessation of labor or any other notices that Mortgagee deems appropriate to protect Mortgagee's interest, if Mortgagor shall fail to do so within ten (10) days after written request by Mortgagee, (b) upon the issuance of a deed pursuant to the foreclosure of this Mortgage or the delivery of a deed in lieu of foreclosure, to execute all instruments of assignment, conveyance or further assurance with respect to the Leases, Rents, Deposit Accounts, Fixtures, Personalty, Property Agreements, Tax Refunds, Proceeds, Insurance and Condemnation Awards in favor of the grantee of any such deed and as may be necessary or desirable for such purpose, (c) to prepare, execute and file or record financing statements, continuation statements, applications for registration and like papers necessary to create, perfect or preserve Mortgagee's security interests and rights in or to any of the Property, and (d) while any Event of Default exists, to perform any obligation of Mortgagor hereunder; provided, (i) Mortgagee shall not under any circumstances be obligated to perform any obligation of Mortgagor; (ii) any sums advanced by Mortgagee in such performance shall be added to and included in the Indebtedness and shall bear interest at the rate or rates at which interest is then computed on the Indebtedness provided that from the date incurred said advance is not repaid within five (5) days demand therefor; (iii) Mortgagee as such attorney -in -fact shall only be accountable for such funds as are actually received by Mortgagee; and (iv) Mortgagee shall not be liable to Mortgagor or any other person or entity for any failure to take any action which it is empowered to take under this Section. SECTION 8. MORTGAGEE AS AGENT Mortgagee has been appointed to act as Mortgagee hereunder by Lenders and, by their acceptance of the benefits hereof, Lender Counterparties. Mortgagee shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including the release or substitution of Property), solely in accordance with this Mortgage and the Credit Agreement; provided, Mortgagee shall exercise, or refrain from exercising, any remedies provided for herein in accordance with the instructions of (a) Requisite Lenders, or (b) after payment in full of all Obligations under the Credit Agreement and the other Credit Documents, the holders of a majority of the aggregate notional amount (or, with respect to any Hedge Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses and similar payments but including any early termination payments then due) under such Hedge Agreement) under all Hedge Agreements (Requisite Lenders or, if applicable, such holders being referred to herein as "Requisite Obligees In furtherance of the foregoing provisions of this Section, each Lender Counterparty, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Property, it being understood and agreed by such Lender Counterparty that all rights and remedies hereunder may be exercised solely by Mortgagee for the benefit of Lenders and Lender Counterparties in accordance with the terms of this Section. Mortgagee shall at all times be the same Person that is Agent under the Credit Agreement. Written notice of resignation by Agent pursuant to terms of the Credit Agreement shall also constitute notice of resignation as Mortgagee under this 2 Lien Mortgage Kemerer WY 11 33922226 000655 Agreement; removal of Agent pursuant to the terms of the Credit Agreement shall also constitute removal as Mortgagee under this Agreement; and appointment of a successor Agent pursuant to the terms of the Credit Agreement shall also constitute appointment of a successor Mortgagee under this Agreement. Upon the acceptance of any appointment as Agent under the terms of the Credit Agreement by a successor Agent, that successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Mortgagee under this Agreement, and the retiring or removed Mortgagee under this Agreement shall promptly (i) transfer to such successor Mortgagee all sums, securities and other items of Property held hereunder, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Mortgagee under this Mortgage, and (ii) execute and deliver to such successor Mortgagee such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Mortgagee of the security interests created hereunder, whereupon such retiring or removed Mortgagee shall be discharged from its duties and obligations under this Mortgage thereafter accruing. After any retiring or removed Agent's resignation or removal hereunder as Mortgagee, the provisions of this Mortgage shall continue to enure to its benefit as to any actions taken or omitted to be taken by it under this Mortgage while it was Mortgagee hereunder. SECTION 9. [Intentionally Omitted] SECTION 10. Reserved. SECTION 11. MISCELLANEOUS Any notice required or permitted to be given under this Mortgage shall be given in accordance with Section 10.1 of the Credit Agreement. No failure or delay on the part of Mortgagee or any Lender in the exercise of any power, right or privilege hereunder or under any other Credit Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege. All rights and remedies existing under this Mortgage and the other Credit Documents are cumulative to, and not exclusive of, any rights or remedies otherwise available. In case any provision in or obligation under this Mortgage shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists. This Mortgage shall be binding upon and inure to the benefit of Mortgagee and Mortgagor and their respective successors and assigns. Except as permitted in the Credit Agreement, Mortgagor shall not, without the prior written consent of Mortgagee, assign any rights, duties or obligations hereunder. Upon payment in full of the Indebtedness and performance in full of the Obligations, or upon prepayment of a portion of the Indebtedness equal to the Net Asset Sale Proceeds for the Property in connection with a permitted Asset Sale, 2nd Lien Mortgage Kemerer WY 12 33922226 SECTION 12. FIRST LIEN MORTGAGE 000656 subject to and in accordance with the terms and provisions of the Credit Agreement, Mortgagee, at Mortgagor's expense, shall release the liens and security interests created by this Mortgage or reconvey the Property to Mortgagor or, at the request of Mortgagor, assign this Mortgage without recourse. This Mortgage and the other Credit Documents embody the entire agreement and understanding between Mortgagee and Mortgagor and supersede all prior agreements and understandings between such parties relating to the subject matter hereof and thereof. Accordingly, the Credit Documents may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. THE PROVISIONS OF THIS MORTGAGE REGARDING THE CREATION, PERFECTION AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS HEREIN GRANTED SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED. ALL OTHER PROVISIONS OF THIS MORTGAGE AND THE RIGHTS AND OBLIGATIONS OF MORTGAGOR AND MORTGAGEE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. 12.1 This Mortgage is subject and subordinate to the terms and conditions of that certain Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture Filing by Mortgagor in favor of Agent, dated September 26, 2005, encumbering the Premises, and recorded January 6, 2006, at Book 609, Page 125 in the real property records for Lincoln County, Wyoming, as amended by the First Amendment thereto dated April 6, 2006, recorded April 20, 2006, at Book 617, Page 417, as further amended by the Second Amendment thereto dated June 29, 2007, recorded July 9, 2007, at Book 665, Page 108, aforesaid records (as amended, the "First Lien Mortgage The First Lien Mortgage secures certain first lien loans and financial obligations to the Trustor or its affiliates (the "First Lien Loan"; documents evidencing and /or securing the First Lien Loan, including that certain Credit Guaranty Agreement by and among each of the Lenders named therein, the Agent, in its capacity as agent for the Lenders and as Lender, and the Credit Parties signatory thereto from time to time, as amended, modified, or otherwise supplemented and in effect from time to time, are hereinafter collectively referred to as the "First Lien Loan Documents This Mortgage is also subject and subordinate to the First Lien Loan Documents in accordance with the Intercreditor Agreement. By accepting this Mortgage, Mortgagee acknowledges and agrees that until the obligations secured by the First Lien Mortgage have been fully paid and discharged, (i) Mortgagee shall not seek to enforce this Mortgage or exercise any of the remedies available to it following the occurrence of an Event of Default hereunder (other than exercising its right to accelerate the Obligations secured hereby as provided herein to the extent permitted by the Intercreditor Agreement); and (ii) Mortgagee shall not accept any transfer of the Property, or any portion thereof, or any payment or distribution with respect to, or on the account of the Property. 12.2 All proceeds of the Property shall be applied in the following order of priority: first, to pay all indebtedness under the First Lien Mortgage and the First Lien Loan Documents 2 Lien Mortgage Kemerer WY 13 33922226 2 °d Lien Mortgage Kemerer WY 14 33922226 000657 then due and owing; and second, to pay the Obligations then due and owing or otherwise pursuant to the direction of Agent, in its sole discretion. 12.3 In the event of any distribution of all or any portion of the Property to the Mortgagor's creditors pursuant to or as a result of the Bankruptcy Code or any insolvency or similar law, receivership or other court proceedings, assignment for the benefit of creditors, liquidation, dissolution or otherwise, all dividends and payments, whether in money, securities or other property relating to the Property, on account of any of the Obligations and all other indebtedness of any nature of the Mortgagor to the Agent shall be payable as provided in Section 12.2 above. 12.4 Mortgagee will not assign or deliver to any person or entity other than the Mortgagee or the Agent the Obligations or any evidence thereof or security therefore, unless the Mortgagee obtains the assignee's agreement in writing to be bound by this Section 12 and the Intercreditor Agreement and the Agent shall have been furnished with an original copy of such agreement. 12.5 Mortgagor hereby expressly agrees that any default under the First Lien Mortgage shall constitute and be deemed to be an Event of Default under this Mortgage, and shall not be subject to any notice and cure period. Agent shall have the right, but not the obligation, to pay any sums or to take any action which Agent deems necessary or advisable to cure any alleged default under the First Lien Mortgage, and such payment or such action is hereby authorized by Mortgagor, and any sum so paid and any expense incurred by Agent in taking any such action shall be secured hereby and shall be immediately due and payable by Mortgagtor to Agent. Mortgagor hereby transfers and assigns to Agent any excess proceeds arising from any foreclosure or sale under power pursuant to the First Lien Mortgage or any instrument evidencing the indebtedness secured thereby, and Mortgagor hereby authorizes and directs the holder or holders of the First Lien Mortgage to pay such excess proceeds directly to Agent. Mortgagor agrees to deliver immediately to Agent copies of any notices, certificates, requests, demands or other instruments furnished or delivered to or by Mortgagor under or in any way relating to the First Lien Mortgage 000658 IN WITNESS WHEREOF, Mortgagor has on the date set forth in the acknowledgment hereto, effective as of the date first above written, caused this instrument to be duly executed and delivered by authority duly given. STATE OF UTAH ss. COUNTY OF SALT LAKE The foregoing instrument was acknowledged before me this day of 2011 by Bret J. Leifson, who did affirm that he is a Manager of Simmons -SLC, LLC, a Utah limited liability company, for purposes of executing the foregoing instrument. RACHEL P. WILSON t iV L/a 10 NOTARY PUBLIC•STATE OF UTAH COMMISSION# 583188 eae COMM. EXP. 07.10.2014 2 °d Lien Mortgage Kemerer WY 15 33922226 SIMMONS -SLC, LLC, a Utah limited liability company By: Name: Bret J. Le Title: Manager son OTARY PUBLI EXHIBIT A TO MORTGAGE Legal Description of Premises: That certain real property situated in Lincoln County, State of Wyoming, more particularly described as follows: PARCEL 1: COMMENCING at the Northwesterly corner of Block 19 of the First Addition to the Town of Kemmerer, Lincoln County, Wyoming and running thence South 63 °26' West, 60 feet; thence South 84 °38' West, 131.14 feet to the point of beginning; thence North 11 °36' East, 120.00 feet to a point on the Southerly right of way boundary line of Wyoming State Highway #30 North; thence in a Westerly direction along said right -of -way boundary thence in a Westerly direction along said right -of -way boundary thence in a Westerly direction along said right -of -way boundary following a 1.027 curve to the left, a distance of 501.33 feet; thence South 11 °26' West, 273 feet; thence along a curve to the left with a radius of 250.00 feet and an internal angle of 180.00 a distance of 785.40 feet; thence North 11 °36' East 130.00 feet to the point of beginning; being situate in the Southeast quarter of Section 14, Township 21 North, 116 West of the 6 P.M. PARCEL 2: COMMENCING at the Northwesterly corner of Block 19 of the First Addition to the Town of Kemmerer, Lincoln County, Wyoming and running thence South 63 °26' West, 30.00 feet, to the point of beginning; thence South 63 °26' West, 30.00 feet; thence South 84 °38'30" West, 131.14 feet; thence North 11 °26' East, 120.00 feet; thence South 72 °45' East, 19.92 feet; thence South 17 °36' West, 12.26 feet; thence North 89 °38' East, 80.88 feet; thence South 26 °34' East, 83.65 feet to the point of BEGINNING. Tax Notice Nos. 12- 2116- 14 -I -00- 025.00 and 12- 2116- 14 -I -00- 025.20 000659