After recording, return to: Calderwood & Harkness LLP 425 Lexington Avenue New York, New York 10017
Attention: Marcus Leung
Prepared by: Calderwood & Harkness LLP 425 Lexington Avenue New York, New York 10017
Cross-Reference: This instrument is to be indexed against real property situated in Greenville County, South Carolina, as more particularly described in Exhibit A attached hereto.
Property Address: 600 Manufacturers Row, Greenville, SC 29607
Tax Map / Parcel Number: TMS No. 0457-00-12-034.00 (Greenville County)
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING
Note: This instrument is intended to be a post-closing deliverable under the Credit Agreement (as defined herein) and is required to be executed and recorded on or before April 30, 2025.
PREAMBLE
This MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this "Mortgage") is made and entered into as of ____, 2025, by and between:
NEXFORD PROPERTIES, LLC, a Delaware limited liability company, having a registered address at c/o Penmark Industries, 1209 Orange Street, Wilmington, Delaware 19801, and a principal place of business at 600 Manufacturers Row, Greenville, South Carolina 29607 (the "Mortgagor");
and
CRESCENT HARBOR BANK, N.A., a national banking association organized and existing under the laws of the United States, having its principal office at 320 Federal Street, Boston, Massachusetts 02110, acting in its capacity as Collateral Agent for the benefit of the Secured Parties (as hereinafter defined) under the Credit Agreement (as hereinafter defined) (the "Mortgagee" or "Collateral Agent").
RECITALS
WHEREAS, Nexford Industrial Holdings Inc., a Delaware corporation (the "Borrower"), the Guarantors from time to time party thereto (the "Guarantors"), Crescent Harbor Bank, N.A., as Administrative Agent and Collateral Agent, Ironwood Capital Markets, LLC and Northvane Securities, Inc., as Joint Lead Arrangers and Joint Bookrunners, and the several banks and other financial institutions and lenders from time to time party thereto (the "Lenders"), have entered into that certain Credit Agreement dated as of March 28, 2025 (as amended, restated, supplemented, or otherwise modified from time to time, the "Credit Agreement"), pursuant to which the Lenders have made available to the Borrower a senior secured term loan B facility in the aggregate principal amount of One Billion Four Hundred Million Dollars ($1,400,000,000) (the "Term Loan B Facility");
WHEREAS, the Borrower, the Guarantors, and the Collateral Agent have entered into that certain Security Agreement dated as of March 28, 2025 (as amended, restated, supplemented, or otherwise modified from time to time, the "Security Agreement"), pursuant to which the Borrower and the Guarantors have granted to the Collateral Agent, for the benefit of the Secured Parties, a first-priority security interest in substantially all of their personal property and assets to secure the Obligations (as defined in the Credit Agreement);
WHEREAS, the Guarantors and the Collateral Agent have entered into that certain Guarantee Agreement dated as of March 28, 2025 (as amended, restated, supplemented, or otherwise modified from time to time, the "Guarantee Agreement"), pursuant to which the Guarantors have unconditionally guaranteed the punctual payment and performance of all Obligations of the Borrower under the Credit Agreement and the other Loan Documents;
WHEREAS, Mortgagor is a Subsidiary Guarantor under the Credit Agreement and the Guarantee Agreement, and is the owner of fee simple title to the real property described in Exhibit A attached hereto and incorporated herein by this reference, which real property is commonly known as 600 Manufacturers Row, Greenville, South Carolina 29607, and which constitutes the site of the Nexford Engineered Systems manufacturing plant;
WHEREAS, it is a condition of the Credit Agreement, and specifically a post-closing obligation of the Loan Parties pursuant to Section 6.14 of the Credit Agreement, that the Mortgagor execute and deliver this Mortgage and that this Mortgage be recorded in the real property records of Greenville County, South Carolina, on or before April 30, 2025, to secure all of the Obligations of the Borrower and the Guarantors under the Credit Agreement, the Guarantee Agreement, the Security Agreement, and the other Loan Documents;
WHEREAS, at the closing of the Credit Agreement on March 28, 2025, all prior liens and encumbrances in favor of Atlas Meridian Bank, N.A. under that certain Credit Agreement dated as of June 14, 2019 (as amended), including all mortgages, deeds of trust, and security interests encumbering the Mortgaged Property, were released and terminated in full; and
WHEREAS, the Mortgagor will directly and materially benefit from the extensions of credit under the Credit Agreement and has agreed to execute and deliver this Mortgage to secure the Obligations.
NOW, THEREFORE, for and in consideration of the premises, the sum of Ten Dollars ($10.00) in hand paid, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and to secure the Obligations (as hereinafter defined), Mortgagor hereby agrees as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms. As used in this Mortgage, the following terms shall have the meanings set forth below:
"Administrative Agent" means Crescent Harbor Bank, N.A., in its capacity as administrative agent for the Lenders under the Credit Agreement, together with its successors and assigns in such capacity.
"Borrower" means Nexford Industrial Holdings Inc., a Delaware corporation, and its permitted successors and assigns under the Credit Agreement.
"Collateral Agent" means Crescent Harbor Bank, N.A., in its capacity as collateral agent for the Secured Parties under the Credit Agreement, together with its successors and assigns in such capacity.
"Credit Agreement" has the meaning set forth in the Recitals hereto, and includes all amendments, restatements, supplements, refinancings, replacements, and other modifications thereof from time to time.
"Event of Default" has the meaning assigned to such term in the Credit Agreement.
"Fixtures" means all fixtures, machinery, equipment, fittings, apparatus, appliances, and other articles of personal property now or hereafter attached to, installed in, or used in connection with the Land or the Improvements, including all heating, ventilation, air conditioning, plumbing, electrical, lighting, fire protection, security, and elevator systems, and all components thereof, to the extent that such items constitute "fixtures" under the laws of the State of South Carolina.
"Guaranteed Obligations" means all Obligations (as defined in the Credit Agreement) and all obligations of the Guarantors under the Guarantee Agreement, including all indebtedness, liabilities, and obligations of every kind and nature, whether now existing or hereafter arising, whether direct or indirect, absolute or contingent, joint or several.
"Guarantee Agreement" has the meaning set forth in the Recitals hereto.
"Improvements" means all buildings, structures, improvements, and construction of every kind and nature now or hereafter erected or placed on the Land, including the Nexford Engineered Systems manufacturing plant and all related facilities.
"Land" means the real property situated in Greenville County, South Carolina, more particularly described in Exhibit A attached hereto and incorporated herein by this reference.
"Lenders" means the several banks and other financial institutions and lenders from time to time party to the Credit Agreement as lenders.
"Loan Documents" has the meaning assigned to such term in the Credit Agreement.
"Mortgaged Property" means, collectively, the Land, the Improvements, the Fixtures, and all other property, rights, and interests described in Article II hereof, together with all replacements, substitutions, additions, and accessions thereto and all proceeds thereof.
"Mortgagor" has the meaning set forth in the Preamble hereto.
"Mortgagee" has the meaning set forth in the Preamble hereto.
"Obligations" has the meaning assigned to such term in the Credit Agreement and includes all indebtedness, liabilities, and obligations of any kind or nature of the Loan Parties under or in connection with the Loan Documents, whether for principal, interest, premium, fees, expenses, indemnities, reimbursement obligations, damages, or other amounts, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising.
"Permitted Encumbrances" means, collectively, (a) the encumbrances, exceptions, and other matters set forth in Exhibit B hereto, (b) "Permitted Encumbrances" as defined in the Credit Agreement, and (c) "Permitted Liens" as defined in the Credit Agreement, in each case to the extent applicable to the Mortgaged Property.
"Secured Parties" means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, and their respective successors and assigns.
"Security Agreement" has the meaning set forth in the Recitals hereto.
"UCC" means the Uniform Commercial Code as from time to time in effect in the State of South Carolina.
Capitalized terms used but not otherwise defined in this Mortgage shall have the respective meanings assigned to such terms in the Credit Agreement, as in effect on the date hereof (or, in the case of terms defined by reference to the UCC, the meanings assigned under the UCC). In the event of any inconsistency between the definitions set forth in this Mortgage and the definitions set forth in the Credit Agreement, the definitions in the Credit Agreement shall control, except to the extent that any such inconsistency relates to the creation, perfection, priority, or enforcement of the mortgage lien or security interest granted hereby, in which case the provisions of this Mortgage shall control.
Section 1.02. Rules of Construction.
(a) References in this Mortgage to "South Carolina law" or the "laws of the State of South Carolina" shall include all applicable statutes, regulations, judicial decisions, and rules of common law of the State of South Carolina.
(b) References to the "Uniform Commercial Code" or the "UCC" shall mean the Uniform Commercial Code as adopted and in effect from time to time in the State of South Carolina, including without limitation Title 36 of the South Carolina Code of Laws, and specifically S.C. Code Ann. § 36-9-102 et seq. for purposes of the security interest in fixtures and personal property and S.C. Code Ann. § 36-9-502 for purposes of fixture filing.
(c) The headings and captions of the Articles and Sections of this Mortgage are for convenience of reference only and shall not be deemed to define, limit, or otherwise affect any of the provisions hereof.
(d) Unless the context otherwise requires, (i) words importing the singular include the plural and vice versa, (ii) words importing any gender include the other genders, (iii) references to "including" shall mean "including without limitation," (iv) references to agreements and other contractual instruments shall be deemed to include all subsequent amendments, restatements, supplements, and other modifications thereto, and (v) references to any statute or regulation shall be deemed to include all amendments thereto and successor provisions and regulations.
(e) If any payment or action is required to be made or taken on a day that is not a Business Day (as defined in the Credit Agreement), such payment or action shall be made or taken on the next succeeding Business Day.
ARTICLE II
GRANTING CLAUSES
Section 2.01. Grant of Mortgage Lien. Mortgagor hereby mortgages, grants, bargains, sells, conveys, assigns, transfers, pledges, hypothecates, and sets over to Mortgagee, and hereby grants to Mortgagee a first-priority mortgage lien on and security interest in, the following described property, rights, and interests (collectively, the "Mortgaged Property"):
(a) Land. All that certain lot, piece, or parcel of land situated in Greenville County, State of South Carolina, more particularly described in Exhibit A attached hereto and incorporated herein by this reference, commonly known as 600 Manufacturers Row, Greenville, South Carolina 29607 (the "Land"), together with all right, title, and interest of Mortgagor in and to any land lying within the right-of-way of any street, road, or avenue, open or proposed, in front of or adjoining the Land, to the center line thereof;
(b) Improvements. All buildings, structures, and improvements of every kind and nature now or hereafter erected, constructed, or placed on the Land, including without limitation the Nexford Engineered Systems manufacturing plant and all associated administrative, warehouse, loading, utility, and ancillary structures (the appraised value of which, together with the Land, is Thirty-Eight Million Dollars ($38,000,000) based on the appraisal conducted by Greystone Valuation Services, Inc., with Daniel Pritchard, MAI, serving as lead appraiser), together with all additions, alterations, replacements, and substitutions thereto and therefor (the "Improvements");
(c) Fixtures. All fixtures, machinery, equipment, building materials, appliances, furniture, furnishings, fittings, and other articles of personal property now or hereafter attached to, installed in, incorporated into, or used in connection with the Land or the Improvements, to the extent constituting fixtures under South Carolina law, including without limitation all heating, ventilation, and air conditioning systems, boilers, furnaces, generators, engines, motors, transformers, compressors, tanks, piping, wiring, conduit, electrical systems, plumbing systems, fire protection and suppression systems, security and access control systems, elevators, escalators, cranes, conveyors, and all components, parts, and replacements thereof (the "Fixtures");
(d) Easements and Appurtenances. All easements, rights-of-way, rights of ingress and egress, strips and gores of land, streets, ways, alleys, passages, sewer rights, water courses, water rights, mineral rights, air rights, development rights, and all other appurtenances, privileges, and advantages pertaining to or benefiting the Land, including all rights of Mortgagor to use any shared driveways, parking areas, or common areas;
(e) Leases and Rents. All leases, subleases, licenses, concessions, occupancy agreements, and other agreements for the use, possession, or occupancy of, or otherwise affecting, the Mortgaged Property or any portion thereof, now existing or hereafter entered into, and all extensions, renewals, modifications, and replacements thereof (collectively, the "Leases"), together with all rents, issues, profits, revenues, royalties, income, receipts, deposits (including security deposits), accounts, cash, and other sums of money and benefits now or hereafter arising from or payable under the Leases or from the use or occupancy of the Mortgaged Property or any activity conducted thereon (collectively, the "Rents"), subject to the assignment provisions of Article III hereof;
(f) Condemnation Awards and Insurance Proceeds. All awards, damages, payments, proceeds, and compensation heretofore made or hereafter to be made by any governmental authority or other person with respect to the taking by eminent domain, condemnation, or any other means (including any transfer in lieu of or in anticipation thereof) of the Mortgaged Property or any part thereof, and all insurance proceeds, unearned premiums, dividends, return premiums, and other payments arising from or related to any insurance policy maintained with respect to the Mortgaged Property;
(g) Accounts and Contract Rights. All accounts, contract rights, general intangibles, payment intangibles, chattel paper, instruments, documents, deposit accounts, and other rights to the payment of money arising from or related to the Mortgaged Property, the ownership, use, operation, or disposition thereof, or any other business conducted thereon;
(h) Proceeds. All proceeds (as defined in the UCC) of any and all of the foregoing, including without limitation all proceeds of the conversion, voluntary or involuntary, of any of the foregoing into cash or liquidated claims, and all proceeds of proceeds.
The lien and security interest granted hereby are intended to encumber and cover all of the Mortgagor's right, title, and interest in and to the Mortgaged Property, whether now owned or hereafter acquired, and whether now existing or hereafter arising, and all replacements, substitutions, additions, and accessions thereto.
Section 2.02. Habendum Clause. TO HAVE AND TO HOLD the Mortgaged Property, together with all and singular the rights, privileges, appurtenances, and immunities thereto belonging or in any wise appertaining, unto the Mortgagee, its successors and assigns, for the benefit of the Secured Parties, forever, subject to the terms and conditions of this Mortgage. Provided, however, that if the Obligations shall be fully paid, satisfied, and discharged and all commitments to lend under the Credit Agreement shall have been irrevocably terminated, then this Mortgage and the estate hereby granted shall cease, terminate, and be void, and Mortgagee shall execute and deliver such instruments of satisfaction, release, and discharge as may be necessary or appropriate to evidence such termination.
Section 2.03. Obligations Secured. This Mortgage and the lien and security interest created hereby secure the prompt and complete payment and performance of:
(a) all Obligations of the Borrower and the Guarantors under the Credit Agreement, including without limitation (i) the principal amount of all Term Loans outstanding under the Term Loan B Facility in the aggregate original principal amount of One Billion Four Hundred Million Dollars ($1,400,000,000), (ii) all interest accruing thereon (including interest accruing at the applicable rate of Term SOFR plus 400 basis points per annum, with a Term SOFR floor of 0.75% per annum, and, upon and during the continuance of any Event of Default, at the default rate of an additional 200 basis points per annum above the otherwise applicable rate), (iii) all regularly scheduled quarterly amortization payments of Three Million Five Hundred Thousand Dollars ($3,500,000) per quarter, (iv) all fees, commissions, and charges payable under the Credit Agreement, and (v) all costs and expenses (including attorneys' fees and disbursements) payable under the Credit Agreement;
(b) all Guaranteed Obligations of the Mortgagor under the Guarantee Agreement;
(c) all obligations and liabilities of the Mortgagor and the other Loan Parties under the Security Agreement and each of the other Loan Documents;
(d) all costs and expenses incurred by the Mortgagee, the Administrative Agent, or any other Secured Party in connection with the enforcement of this Mortgage or the protection of the Mortgaged Property, including without limitation all reasonable attorneys' fees and disbursements, receiver's fees, court costs, appraisal fees, environmental assessment fees, and all other costs of collection and enforcement; and
(e) all extensions, renewals, modifications, amendments, restatements, supplements, replacements, and refinancings of any of the foregoing.
The maturity date of the Term Loans under the Credit Agreement is March 28, 2032. The maximum principal amount of indebtedness that may be secured by this Mortgage at any time outstanding (exclusive of interest, fees, costs, and expenses) is One Billion Four Hundred Million Dollars ($1,400,000,000) (or such greater amount as may result from protective advances, tax payments, insurance premiums, or similar amounts advanced by Mortgagee to protect the Mortgaged Property or the lien hereof). This statement of the maximum principal amount is made solely for the purpose of complying with any applicable requirement of South Carolina law regarding the recording of mortgages and shall not be construed to limit the amount of the Obligations secured hereby.
ARTICLE III
ASSIGNMENT OF LEASES AND RENTS
Section 3.01. Assignment. Mortgagor hereby absolutely, unconditionally, and irrevocably assigns, transfers, and sets over to Mortgagee all of Mortgagor's right, title, and interest in, to, and under (a) all Leases now existing or hereafter entered into with respect to all or any part of the Mortgaged Property, together with all amendments, extensions, renewals, and modifications thereof, and (b) all Rents now due or which may hereafter become due or to which Mortgagor may now or hereafter become entitled under the Leases or by reason of the use, occupancy, or enjoyment of all or any part of the Mortgaged Property. This assignment is intended to be an absolute and present assignment, not merely an assignment for security purposes, to the fullest extent permitted under South Carolina law, and shall be immediately effective without the necessity of any further action by Mortgagor or Mortgagee. Notwithstanding the foregoing, Mortgagee hereby grants to Mortgagor a present, revocable license to collect, receive, use, and enjoy the Rents and to enforce the Leases, so long as no Event of Default has occurred and is continuing. Such license shall be freely revocable by Mortgagee upon the occurrence and during the continuance of an Event of Default, without notice to or demand upon Mortgagor.
Section 3.02. Revocation of License Upon Event of Default. Upon the occurrence and during the continuance of an Event of Default, (a) the license granted to Mortgagor in Section 3.01 to collect and receive Rents shall be automatically and immediately revoked, without the necessity of any notice, demand, or other action by Mortgagee, (b) Mortgagee shall have the immediate right to collect all Rents directly from the tenants, licensees, and other occupants of the Mortgaged Property, (c) Mortgagee may notify any tenant, licensee, or other occupant of the Mortgaged Property to pay Rents directly to Mortgagee and each such tenant, licensee, or other occupant shall be entitled to rely upon and comply with such notice without any obligation to inquire as to the existence of an Event of Default, and (d) Mortgagee may apply any Rents so collected to the Obligations secured hereby in such order and manner as Mortgagee shall determine in its sole discretion. In connection with the exercise of its rights under this Section 3.02, Mortgagee shall be entitled to seek the appointment of a receiver to collect and apply the Rents in accordance with the laws of the State of South Carolina, and Mortgagor hereby consents to the appointment of such a receiver and waives any requirement that Mortgagee post a bond or other security in connection therewith.
Section 3.03. Mortgagor's Obligations Regarding Leases. Mortgagor covenants and agrees that:
(a) Mortgagor shall faithfully observe and perform all of the terms, covenants, and conditions of the Leases on the part of the landlord thereunder to be observed or performed, and shall not do or permit to be done anything to impair the value of any of the Leases;
(b) Mortgagor shall not, without the prior written consent of Mortgagee (which consent shall not be unreasonably withheld, conditioned, or delayed, and which shall be subject to the baskets and permissions set forth in the Credit Agreement), (i) enter into any material Lease (as determined in accordance with the Credit Agreement), (ii) amend, modify, or supplement any material Lease in any material respect, (iii) terminate or accept a surrender of any material Lease, or (iv) waive or release any material right of Mortgagor under any material Lease;
(c) Mortgagor shall not collect Rents for more than one (1) month in advance, other than security deposits collected in the ordinary course of business;
(d) Mortgagor shall promptly deliver to Mortgagee, upon Mortgagee's written request, a true, correct, and complete copy of each Lease (including all amendments and modifications thereof) and such other information regarding the Leases and the Rents as Mortgagee may reasonably request; and
(e) Mortgagor shall promptly notify Mortgagee of any default by any tenant under any material Lease and of any termination or proposed termination of any material Lease.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MORTGAGOR
Mortgagor hereby represents and warrants to Mortgagee and the Secured Parties as follows:
Section 4.01. Title. Mortgagor is the lawful owner of indefeasible fee simple title to the Mortgaged Property, free and clear of all liens, encumbrances, charges, easements, restrictions, and other title exceptions of every kind and nature whatsoever, except for the Permitted Encumbrances. Mortgagor's title to the Mortgaged Property is insurable by Landmark Title Assurance Company pursuant to that certain title insurance commitment issued by Landmark Title Assurance Company in connection with the closing of the Credit Agreement, as supplemented by post-closing endorsements to be delivered in connection with the recording of this Mortgage.
Section 4.02. Authority. Mortgagor is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware, and is duly qualified to do business and in good standing in the State of South Carolina. Mortgagor has the full right, power, and authority to execute, deliver, and perform this Mortgage and to grant the mortgage lien and security interest herein. The execution, delivery, and performance of this Mortgage have been duly authorized by all necessary organizational action on the part of Mortgagor, including all requisite resolutions of its managers and members, and no further consent, approval, or authorization of any person or entity is required in connection therewith.
Section 4.03. No Conflicts. The execution, delivery, and performance of this Mortgage, and the granting of the mortgage lien and security interest herein, do not and will not (a) violate or conflict with the certificate of formation, limited liability company agreement, or other organizational documents of Mortgagor, (b) violate or conflict with any applicable law, rule, regulation, order, judgment, writ, injunction, or decree of any court or governmental authority, (c) result in a breach of, or constitute a default (with or without the giving of notice or lapse of time, or both) under, or result in the creation or imposition of any lien (other than the lien of this Mortgage and the Permitted Encumbrances) upon the Mortgaged Property under, any material agreement, indenture, mortgage, deed of trust, or other instrument to which Mortgagor is a party or by which Mortgagor or the Mortgaged Property is bound, or (d) result in or require the creation of any lien upon or with respect to the Mortgaged Property other than the lien created by this Mortgage and the Permitted Encumbrances.
Section 4.04. Enforceability. This Mortgage constitutes the legal, valid, and binding obligation of Mortgagor, enforceable against Mortgagor in accordance with its terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, receivership, fraudulent conveyance, or similar laws affecting the enforcement of creditors' rights generally from time to time in effect, and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
Section 4.05. No Prior Liens. No mortgage, deed of trust, lien, pledge, security interest, charge, or encumbrance of any kind or nature whatsoever (other than the Permitted Encumbrances) encumbers or affects the Mortgaged Property. All prior liens in favor of Atlas Meridian Bank, N.A. under that certain Credit Agreement dated as of June 14, 2019 (as amended, restated, supplemented, or otherwise modified), including all mortgages, security interests, assignments of rents, and UCC financing statements, have been irrevocably released, satisfied, discharged, and terminated in full as of the closing date of the Credit Agreement on March 28, 2025, and satisfaction pieces and UCC termination statements with respect thereto have been or will promptly be filed or recorded in all applicable filing offices and land records.
Section 4.06. Compliance with Law. The Mortgaged Property and the current use, occupancy, and operation thereof comply in all material respects with all applicable zoning ordinances, building codes, subdivision laws, environmental laws, and other governmental rules, regulations, and requirements. Without limiting the foregoing, Mortgagor has obtained all material permits, licenses, certificates, and approvals required by applicable governmental authorities for the use, occupancy, and operation of the Mortgaged Property as currently conducted. Mortgagor has not received any notice of any violation of any zoning, building, fire, health, environmental, or other law, ordinance, regulation, or code with respect to the Mortgaged Property that has not been cured, remedied, or otherwise resolved.
Section 4.07. Environmental Matters. (a) No recognized environmental condition, controlled recognized environmental condition, or historical recognized environmental condition requiring remediation exists at, on, under, or emanating from the Mortgaged Property, based on the Phase I Environmental Site Assessment conducted by Clearwater Environmental Sciences, Inc. (Dr. Nathan Foley, Project Manager) in connection with the closing of the Credit Agreement, except as disclosed in writing to Mortgagee prior to the date hereof; (b) Mortgagor has not received any notice, claim, demand, order, or directive from any governmental authority or any third party alleging any violation of or liability under any applicable environmental law with respect to the Mortgaged Property; (c) no underground storage tanks, asbestos-containing materials in a friable condition, or polychlorinated biphenyls are located at, on, in, or under the Mortgaged Property, except as disclosed in the Phase I Environmental Site Assessment referenced above; (d) no judicial or administrative proceeding, order, or action is pending, or to the knowledge of Mortgagor, threatened, with respect to any environmental condition at or affecting the Mortgaged Property; and (e) Mortgagor has not caused or permitted, and has no knowledge of, any release, discharge, or disposal of hazardous materials at, on, from, or under the Mortgaged Property in violation of applicable environmental laws.
Section 4.08. Insurance. Mortgagor maintains, or causes to be maintained, property and casualty insurance, commercial general liability insurance, and such other insurance coverages with respect to the Mortgaged Property as are required by the Credit Agreement and the other Loan Documents. Such insurance is placed through Continental Shield Underwriters, Inc. (broker: Vantage Risk Advisors, LLC; account executive: Rachel Sorensen) and is in full force and effect, with all premiums currently paid. All such insurance policies comply with the requirements of the Credit Agreement, and Mortgagee has been or will be named as mortgagee and loss payee (or additional insured, as applicable) on all such policies in accordance with the terms hereof and the Credit Agreement.
Section 4.09. Taxes and Assessments. All real property taxes, assessments, charges, levies, and other governmental impositions on or with respect to the Mortgaged Property that are due and payable as of the date hereof have been paid in full. No tax lien or assessment lien is pending or, to the knowledge of Mortgagor, threatened against the Mortgaged Property.
Section 4.10. Condemnation. No condemnation, eminent domain, or similar proceeding has been commenced or, to the knowledge of Mortgagor, is pending, threatened, or contemplated with respect to all or any part of the Mortgaged Property. Mortgagor has not received any written notice of any proposed or contemplated taking, condemnation, or other acquisition of all or any part of the Mortgaged Property by any governmental authority.
Section 4.11. Utilities and Access. The Mortgaged Property has adequate and legally enforceable access to and from public roads and highways for the current use and operation of the Mortgaged Property. All utilities necessary for the current use and operation of the Mortgaged Property (including water, sewer, gas, electric, telephone, and internet service) are available at the boundaries of the Land and are connected to the Improvements, and all utility service is provided by public utilities or municipal authorities or private providers on commercially reasonable terms.
ARTICLE V
COVENANTS OF MORTGAGOR
Mortgagor hereby covenants and agrees with Mortgagee as follows:
Section 5.01. Payment of Obligations. Mortgagor shall pay and perform, or cause to be paid and performed, all Obligations secured hereby punctually and faithfully as and when the same shall become due and payable in accordance with the terms of the Credit Agreement and the other Loan Documents.
Section 5.02. Maintenance and Repair. Mortgagor shall maintain the Mortgaged Property in good order, condition, and repair, shall not commit or permit waste thereon or thereto, and shall not do or suffer to be done anything that would materially impair the value of the Mortgaged Property or the lien of this Mortgage. Mortgagor shall make or cause to be made all necessary repairs, renewals, and replacements to the Mortgaged Property, whether ordinary or extraordinary, structural or nonstructural, foreseen or unforeseen. Mortgagor shall comply in all material respects with all applicable laws, ordinances, rules, regulations, codes, and requirements of governmental authorities having jurisdiction over the Mortgaged Property or the use, occupancy, or operation thereof.
Section 5.03. Insurance. (a) Mortgagor shall maintain, or cause to be maintained, insurance coverage with respect to the Mortgaged Property as required by the Credit Agreement, including without limitation (i) property insurance covering the Improvements and the Fixtures against loss or damage by fire, windstorm, and all other hazards and risks covered by a standard "all-risk" property insurance policy, in an amount not less than the full replacement cost of the Improvements and the Fixtures (without deduction for depreciation), (ii) commercial general liability insurance, and (iii) such other insurance as may be required by the Credit Agreement or as Mortgagee may reasonably require from time to time. All such insurance shall be issued by financially sound and reputable insurance companies authorized to do business in the State of South Carolina and having a claims-paying ability rating of at least "A-" from A.M. Best Company (or an equivalent rating from Standard & Poor's or Moody's).
(b) Mortgagee shall be named as mortgagee and loss payee on all property insurance policies, and Mortgagee (or the Administrative Agent) shall be named as additional insured on all liability insurance policies, in each case pursuant to a standard mortgagee clause or endorsement acceptable to Mortgagee. Each property insurance policy shall provide that the insurer shall give Mortgagee not less than thirty (30) days' prior written notice of cancellation, non-renewal, or material modification.
(c) All insurance proceeds received by Mortgagor or Mortgagee with respect to any loss or damage to the Mortgaged Property shall be applied in accordance with the mandatory prepayment provisions of the Credit Agreement, including the requirement for application of one hundred percent (100%) of net cash proceeds to the prepayment of the Obligations, subject to the reinvestment rights and the Ten Million Dollar ($10,000,000) threshold for mandatory prepayment specified in the Credit Agreement. To the extent Mortgagor is entitled to reinvest insurance proceeds in the restoration or repair of the Mortgaged Property in accordance with the Credit Agreement, such proceeds shall be applied to such restoration or repair in a manner reasonably satisfactory to Mortgagee.
Section 5.04. Payment of Taxes. Mortgagor shall pay, before delinquency, all real property taxes, assessments, ground rents (if any), water and sewer charges, and other governmental charges and impositions levied or assessed against or with respect to the Mortgaged Property, and shall promptly deliver to Mortgagee, upon request, evidence of such payment. Mortgagor shall have the right to contest in good faith the amount or validity of any such tax, assessment, or charge, provided that (i) no Event of Default exists, (ii) such contest is diligently pursued by appropriate proceedings, (iii) Mortgagor has established adequate reserves in accordance with GAAP, and (iv) the lien of this Mortgage is not jeopardized. If Mortgagor fails to pay any such tax, assessment, or charge when due (or before the expiration of any applicable grace or contest period), Mortgagee may (but shall not be obligated to) advance sums to pay such amounts on behalf of Mortgagor, and all such sums so advanced by Mortgagee, together with interest thereon at the default rate specified in the Credit Agreement, shall be added to and become part of the Obligations secured by this Mortgage and shall be immediately due and payable.
Section 5.05. Preservation of Lien. Mortgagor shall preserve and protect the first-priority lien of this Mortgage. Mortgagor shall not create, incur, assume, or suffer to exist any mortgage, deed of trust, lien, pledge, security interest, charge, encumbrance, or restriction of any kind on the Mortgaged Property, except for the Permitted Encumbrances. Mortgagor shall promptly discharge or bond over any lien, encumbrance, or charge (other than a Permitted Encumbrance) that is filed, claimed, or asserted against the Mortgaged Property. Mortgagor shall pay or cause to be paid, when due, all claims for labor performed and materials furnished in connection with any work on or about the Mortgaged Property, and shall take all actions necessary to prevent the filing of any mechanic's or materialman's lien against the Mortgaged Property.
Section 5.06. Alterations and Additions. Mortgagor may make alterations, additions, and improvements to the Improvements consistent with the covenants and restrictions set forth in the Credit Agreement, provided that (a) no material diminution in the fair market value of the Mortgaged Property results therefrom, (b) such work is performed in a good and workmanlike manner and in compliance with all applicable laws, ordinances, rules, and regulations, and (c) all necessary permits, licenses, and approvals have been obtained from the applicable governmental authorities. Any such alterations, additions, or improvements shall become part of the Mortgaged Property and shall be subject to the lien of this Mortgage.
Section 5.07. Compliance with Laws. Mortgagor shall comply in all material respects with all applicable laws, ordinances, rules, regulations, codes, orders, directives, and requirements of all governmental authorities having jurisdiction over the Mortgaged Property or any part thereof or the use, occupancy, or operation thereof, including without limitation all zoning laws, building codes, subdivision laws, environmental laws, health and safety laws, and disability access laws. Mortgagor shall maintain in full force and effect all licenses, permits, certificates of occupancy, and other governmental approvals required for the lawful use, occupancy, and operation of the Mortgaged Property.
Section 5.08. Environmental Covenants. (a) Mortgagor shall not cause or permit, and shall use commercially reasonable efforts to prevent, any release, discharge, emission, leaking, spilling, injection, escaping, dumping, or disposing of any hazardous materials at, on, from, in, or under the Mortgaged Property in violation of applicable environmental laws.
(b) Mortgagor shall promptly notify Mortgagee in writing of (i) any release or threatened release of hazardous materials at, on, from, in, or under the Mortgaged Property in violation of or requiring remediation under applicable environmental laws, (ii) any notice, claim, demand, order, directive, or investigation received or initiated by any governmental authority or third party relating to any environmental condition at or affecting the Mortgaged Property, and (iii) any condition at the Mortgaged Property that could reasonably be expected to give rise to liability under applicable environmental laws.
(c) Mortgagor shall, at its sole cost and expense, promptly investigate, remediate, and clean up any contamination of the Mortgaged Property by hazardous materials in compliance with all applicable environmental laws and in a manner reasonably satisfactory to Mortgagee.
(d) Mortgagor shall indemnify, defend, and hold harmless Mortgagee, the Administrative Agent, the Lenders, and the other Secured Parties, and their respective directors, officers, employees, agents, successors, and assigns, from and against any and all claims, demands, causes of action, judgments, damages, losses, liabilities, penalties, fines, costs, and expenses (including without limitation reasonable attorneys' fees, consultant fees, investigation and remediation costs, and court costs) arising out of or in any way relating to (i) any breach of the representations, warranties, or covenants of Mortgagor contained in Section 4.07 or this Section 5.08, (ii) the presence, release, or threatened release of any hazardous materials at, on, from, in, or under the Mortgaged Property, or (iii) any environmental law, environmental claim, or environmental liability relating to the Mortgaged Property. The obligations of Mortgagor under this Section 5.08(d) shall survive the repayment of the Obligations, the release of this Mortgage, and any foreclosure or other enforcement of this Mortgage.
Section 5.09. No Sale or Transfer. Mortgagor shall not sell, convey, assign, transfer, or otherwise dispose of the Mortgaged Property or any part thereof or interest therein, and shall not create, incur, or permit to exist any lien, encumbrance, or charge thereon (other than Permitted Encumbrances), without the prior written consent of Mortgagee, except as expressly permitted under the Credit Agreement (including without limitation permitted asset dispositions subject to the mandatory prepayment of net cash proceeds, with reinvestment rights exercisable within three hundred sixty-five (365) days (or, if Mortgagor has entered into a binding commitment for reinvestment within such period, five hundred forty-five (545) days) of receipt and subject to an annual basket of Twenty-Five Million Dollars ($25,000,000) for asset dispositions not requiring mandatory prepayment). Any sale, transfer, or encumbrance in violation of this Section 5.09 shall be void and of no force or effect.
Section 5.10. Further Assurances. Mortgagor shall, at its sole cost and expense, from time to time execute and deliver, or cause to be executed and delivered, such further instruments, documents, and agreements, and take such further actions, as Mortgagee may reasonably request in order to (a) grant, preserve, protect, and perfect the validity, priority, and enforceability of the mortgage lien and security interest created by this Mortgage, (b) enable Mortgagee to exercise and enforce its rights and remedies hereunder and under the Credit Agreement and the other Loan Documents with respect to the Mortgaged Property, and (c) otherwise carry out the purposes and intent of this Mortgage. Without limiting the foregoing, Mortgagor shall cooperate with Mortgagee in obtaining any consents, approvals, or waivers from third parties that may be necessary or desirable in connection with the perfection or enforcement of the lien of this Mortgage.
Section 5.11. Condemnation Proceedings. Mortgagor shall promptly notify Mortgagee in writing upon obtaining knowledge of any actual or threatened condemnation, eminent domain, or similar proceeding affecting all or any part of the Mortgaged Property. Mortgagee shall have the right, at its option, to participate in any such proceeding and to be represented by counsel of its own choosing. Mortgagor shall not settle, compromise, or consent to any condemnation or taking without the prior written consent of Mortgagee (not to be unreasonably withheld, conditioned, or delayed). All condemnation awards and payments shall be applied in accordance with the mandatory prepayment provisions of the Credit Agreement, and Mortgagee is hereby authorized to collect and receive any such awards or payments directly.
Section 5.12. Estoppel Certificates. Within ten (10) Business Days after receipt of a written request from Mortgagee, Mortgagor shall deliver to Mortgagee a written statement, duly acknowledged, certifying (a) the unpaid principal balance of the Obligations secured hereby (to the extent known to Mortgagor), (b) that this Mortgage is unmodified and in full force and effect (or, if modified, stating the nature of such modification), (c) whether any Event of Default has occurred and is continuing (and, if so, specifying the nature thereof), (d) that, to Mortgagor's knowledge, no offsets, defenses, or counterclaims exist with respect to the Obligations secured hereby (or, if any such offsets, defenses, or counterclaims exist, specifying the nature thereof), and (e) such other matters as Mortgagee may reasonably request.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. An "Event of Default" under this Mortgage shall mean the occurrence and continuance of any Event of Default under and as defined in the Credit Agreement, including without limitation any of the following:
(a) Payment Default. Failure to pay any principal of any Loan when due, or failure to pay any interest, fee, or other amount payable under any Loan Document within five (5) Business Days after the date when due;
(b) Representation and Warranty Default. Any representation or warranty made or deemed made by or on behalf of the Borrower or any Guarantor (including Mortgagor) in or in connection with any Loan Document, or any certificate or document furnished pursuant thereto, shall prove to have been incorrect or misleading in any material respect when made or deemed made;
(c) Covenant Default. Failure by the Borrower or any Guarantor (including Mortgagor) to observe or perform any covenant, condition, or agreement contained in the Credit Agreement or any other Loan Document, subject to any applicable cure period specified in the Credit Agreement (including, without limitation, a thirty (30) day cure period for certain affirmative covenant defaults);
(d) Cross-Default. Default in the payment of any principal of or premium or interest on any Material Indebtedness (as defined in the Credit Agreement) when due (after giving effect to any applicable grace period), or any other event or condition that results in the acceleration of the maturity of any Material Indebtedness, including without limitation any default under the Two Hundred Fifty Million Dollar ($250,000,000) 7.250% Senior Unsecured Notes due 2028 issued pursuant to the indenture between Nexford Industrial Holdings Inc. and Pinnacle Trust Company, as trustee;
(e) Bankruptcy and Insolvency. The commencement of any case, proceeding, or other action (i) under any existing or future law relating to bankruptcy, insolvency, reorganization, liquidation, receivership, or relief of debtors seeking to have an order for relief entered with respect to, or seeking to adjudicate as bankrupt or insolvent, the Borrower, any Guarantor (including Mortgagor), or any Material Subsidiary, or (ii) seeking appointment of a receiver, trustee, custodian, or other similar official for the Borrower, any Guarantor (including Mortgagor), any Material Subsidiary, or for all or any substantial part of their respective assets;
(f) Judgment Default. The entry of one or more final, non-appealable judgments or orders for the payment of money in an aggregate amount exceeding Thirty-Five Million Dollars ($35,000,000) (or the equivalent thereof in any other currency) against the Borrower, any Guarantor (including Mortgagor), or any Material Subsidiary (to the extent not covered by insurance as to which the insurer has acknowledged coverage), to the extent the same remain unsatisfied, unvacated, unbonded, unstayed, and undischarged for a period of sixty (60) consecutive days;
(g) Change of Control. The occurrence of a "Change of Control" as defined in the Credit Agreement, including without limitation (i) the acquisition by any person or group (other than Granite Peak Capital Partners, L.P. and its affiliates) of more than thirty-five percent (35%) of the outstanding voting equity interests of Nexford Industrial Holdings Inc., (ii) Nexford Industrial Holdings Inc. ceasing to be the direct, wholly-owned parent of the Borrower (or the Borrower ceasing to be a wholly-owned subsidiary of Holdings, as applicable), or (iii) the occurrence of a "Change of Control" (or any comparable term) under the indenture governing the Senior Unsecured Notes;
(h) Invalidity of Loan Documents or Liens. Any Loan Document ceases to be in full force and effect (other than by reason of a release of collateral in accordance with the terms of the Credit Agreement or the Security Agreement or the satisfaction in full of the Obligations), or any lien created by any Loan Document ceases to be a valid and perfected first-priority lien (subject to Permitted Encumbrances) on any material portion of the collateral purported to be covered thereby, or any Loan Party (including Mortgagor) contests in writing the validity or enforceability of any Loan Document or any lien thereunder;
(i) ERISA Events. The occurrence of one or more ERISA Events (as defined in the Credit Agreement) that, individually or in the aggregate, could reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount exceeding Twenty Million Dollars ($20,000,000); and
(j) Material Adverse Effect. The occurrence of any event or condition that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect (as defined in the Credit Agreement).
ARTICLE VII
REMEDIES
Section 7.01. Acceleration. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent, at the direction of the Required Lenders (as defined in the Credit Agreement), may (and, upon the written request of the Required Lenders, shall) by notice to the Borrower (a) declare the unpaid principal amount of all Obligations, all interest accrued and unpaid thereon, and all other amounts owing or payable under the Credit Agreement and the other Loan Documents to be immediately due and payable, without presentment, demand, protest, or other notice of any kind, all of which are hereby expressly waived by Mortgagor, and (b) exercise any and all rights and remedies available to Mortgagee hereunder, under the Credit Agreement, under the other Loan Documents, or under applicable law. Notwithstanding the foregoing, upon the occurrence of an Event of Default described in clause (e) of Section 6.01 with respect to the Borrower, the unpaid principal amount of all Obligations and all interest and other amounts as aforesaid shall automatically become due and payable without further act of the Administrative Agent, the Collateral Agent, or any Lender.
Section 7.02. Foreclosure. Upon the occurrence and during the continuance of an Event of Default and acceleration of the Obligations, Mortgagee shall have the right to foreclose this Mortgage by judicial proceedings in accordance with the laws of the State of South Carolina. Mortgagor acknowledges that South Carolina is a judicial foreclosure state and that foreclosure of the lien of this Mortgage must be effected through an action in the court of common pleas of Greenville County, South Carolina, in accordance with S.C. Code Ann. § 29-3-610 et seq. and other applicable provisions of South Carolina law. In any such foreclosure action:
(a) The Mortgaged Property may be sold as an entirety or in such parcels as Mortgagee or the court may determine;
(b) Mortgagee and any Secured Party shall be entitled to bid at any foreclosure sale, and Mortgagee may credit the amount of its bid against the Obligations in lieu of payment of cash;
(c) Mortgagee shall be entitled to recover a deficiency judgment against Mortgagor and any other person or entity liable for the Obligations, to the fullest extent permitted by the laws of the State of South Carolina; and
(d) The purchaser at any foreclosure sale shall be entitled to immediate possession of the Mortgaged Property, and Mortgagor hereby agrees to surrender possession of the Mortgaged Property upon demand of such purchaser and consents to the entry of an order of possession in any foreclosure action.
Section 7.03. Receiver. Upon the occurrence and during the continuance of an Event of Default, Mortgagee shall be entitled, as a matter of right and without regard to the adequacy of any security for the Obligations or the solvency of Mortgagor or any other party liable for the Obligations, to the appointment of a receiver of the Mortgaged Property and the Rents by any court of competent jurisdiction, without notice to Mortgagor and without the necessity of posting any bond or other security. Mortgagor hereby irrevocably consents to such appointment and waives any right to contest the appointment of a receiver on any ground, including the ground that the security is adequate or that Mortgagor is solvent. Any such receiver shall have all powers and authorities customarily exercised by receivers under the laws of the State of South Carolina, including the power to collect all Rents, to manage and operate the Mortgaged Property, to make necessary repairs, and to apply the net income and profits from the Mortgaged Property to the Obligations.
Section 7.04. Entry and Possession. Upon the occurrence and during the continuance of an Event of Default, Mortgagee, personally or through its agents, nominees, or attorneys, may enter upon and take possession of the Mortgaged Property, exclude Mortgagor and all other persons therefrom, manage and operate the Mortgaged Property, collect all Rents, make such repairs and improvements as Mortgagee deems necessary or desirable, and apply the net income and profits from the Mortgaged Property, after payment of all costs and expenses of operation and management (including reasonable compensation to any managing agent appointed by Mortgagee), to the Obligations in such order and manner as Mortgagee shall determine in its discretion. The exercise of the rights under this Section 7.04 shall not cure or waive any Event of Default or invalidate any act done pursuant to any notice of default, and the receipt of Rents by Mortgagee shall not constitute a waiver of any other right that Mortgagee may have under this Mortgage, the Credit Agreement, or any other Loan Document or at law or in equity.
Section 7.05. UCC Remedies. To the extent that any of the Mortgaged Property constitutes personal property or fixtures (as opposed to real property), Mortgagee shall have, in addition to all other rights and remedies provided herein or by law, all rights and remedies of a secured party under the Uniform Commercial Code as adopted in the State of South Carolina, including without limitation the right to (a) require Mortgagor to assemble the personal property and make it available to Mortgagee at a place designated by Mortgagee that is reasonably convenient to both parties, (b) take possession of the personal property without judicial process to the extent permitted by law, (c) sell, lease, or otherwise dispose of the personal property at public or private sale upon at least ten (10) days' prior written notice to Mortgagor (which notice period Mortgagor agrees is commercially reasonable), and (d) exercise any and all other rights and remedies available to a secured party under the UCC. Mortgagee may exercise its remedies with respect to the personal property and fixtures either separately from or concurrently with its remedies with respect to the real property.
Section 7.06. Application of Proceeds. The proceeds of any foreclosure sale, enforcement action, or other realization upon the Mortgaged Property shall be applied in the following order of priority:
(a) First, to the payment of all reasonable costs and expenses of enforcement, including without limitation all attorneys' fees, receiver's fees, appraisal fees, court costs, title search and examination fees, recording fees, and all other costs and expenses incurred by Mortgagee in connection with the enforcement of this Mortgage and the protection and preservation of the Mortgaged Property;
(b) Second, to the payment of the Obligations under the Loan Documents in the order of priority specified in the Credit Agreement, including the application of proceeds in accordance with the waterfall provisions set forth therein; and
(c) Third, any surplus remaining after payment in full of all of the foregoing shall be paid to Mortgagor or to such other person or entity as may be entitled thereto by law.
The application of proceeds under this Section 7.06 is subject to and shall be consistent with the terms and provisions of that certain Intercreditor Agreement dated as of March 28, 2025, by and between Crescent Harbor Bank, N.A., in its capacity as First Lien Collateral Agent, and Pinnacle Trust Company, in its capacity as trustee under the indenture governing the Senior Unsecured Notes, regarding the priority of first lien secured claims of the Secured Parties relative to the unsecured claims of the holders of the Senior Unsecured Notes.
Section 7.07. Cumulative Remedies. All rights, powers, and remedies of Mortgagee under this Mortgage, the Credit Agreement, the other Loan Documents, and applicable law are cumulative and not exclusive of any other right, power, or remedy that Mortgagee may have. The exercise or beginning of the exercise of any one right, power, or remedy shall not preclude the simultaneous or later exercise of any other right, power, or remedy. All of Mortgagee's rights, powers, and remedies may be exercised at such time or times and in such order as Mortgagee may determine in its sole discretion.
Section 7.08. No Waiver. No delay or omission by Mortgagee in exercising any right, power, or remedy hereunder or under the Credit Agreement or any other Loan Document shall impair, prejudice, or constitute a waiver of any such right, power, or remedy, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. No waiver of any Event of Default shall be effective unless in writing and signed by Mortgagee (acting at the direction of the Required Lenders), and no such waiver shall extend to or be taken to affect any subsequent Event of Default or to impair the rights resulting therefrom.
ARTICLE VIII
SECURITY AGREEMENT AND FIXTURE FILING
Section 8.01. Security Interest in Fixtures and Personal Property. This Mortgage constitutes a "security agreement" within the meaning of Article 9 of the Uniform Commercial Code as adopted in the State of South Carolina with respect to all Fixtures, personal property, and other collateral described herein that is subject to the UCC. In addition to the mortgage lien granted herein, Mortgagor hereby grants to Mortgagee a first-priority security interest in all Fixtures, equipment, machinery, appliances, furniture, furnishings, and other articles of personal property now or hereafter located on, attached to, installed in, or used in connection with