AMENDED AND RESTATED
FIRST MORTGAGE AND SECURITY AGREEMENT
by and between
INTERGRAPH CORPORATION, a
Delaware corporation,
Mortgagor
and
FOOTHILL CAPITAL CORPORATION, a
California corporation,
Mortgagee
Dated as of November 25, 1997
Prepared by, and after recordation return to:
Xxxxxx X. Xxxxxxx
Xxxxxxxx Xxxxxx Xxxxxxx & Xxxxxx LLP
0000 XxXxxxx/Xxxxxxx Xxxxx
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
NOTE: This instrument constitutes an amendment and restatement
of the mortgage by and between Intergraph Corporation, as
Mortgagor, and Foothill Capital Corporation, as Mortgagee, dated
January 6, 1997, and recorded in the Office of the Judge of
Probate of Madison County, Alabama on January 6, 1997, in
Mortgage Book 2248, Page 538, et seq. (the "Mortgage") securing
the payment of a $20,000,000 term loan from Mortgagee to
Mortgagor.
THIS INSTRUMENT AMENDS AND RESTATES THE MORTGAGE TO SECURE A
$5,000,000 INCREASE IN THE SAID TERM LOAN. A MORTGAGE TAX HAS
BEEN PAID IN FULL ON THE MORTGAGE WITH RESPECT TO THE ORIGINAL
$20,000,000 TERM LOAN BALANCE.
This Amended and Restated First Mortgage and Security
Agreement is to be cross-indexed in the Uniform Commercial Code
Records as a fixture filing.
AMENDED AND RESTATED
FIRST MORTGAGE AND SECURITY AGREEMENT
TABLE OF CONTENTS
Article Page
1 Warranty of Title 6
2 Payment of Secured Indebtedness 6
3 Requirements; Proper Care and Use 7
4 Taxes on Secured Property or Mortgagee 8
5 Payment of Impositions 9
6 Insurance 10
7 Condemnation/Eminent Domain 13
8 Sale and Lease of Secured Property 14
9 Liens 15
10 Right of Contest 15
11 Leases and Ground Leases 16
12 Loan Document Expenses 19
13 Mortgagee's Right to Perform 20
14 Mortgagee's Costs and Expenses 20
15 Defaults 21
16 Remedies 21
17 Security Agreement under Uniform Commercial Code 24
18 Additional Representations and Warranties 25
19 No Waivers. Etc. 25
20 Additional Rights 26
21 Waivers by Mortgagor 26
22 Not Joint Venture or Partnership 27
23 Notices 27
24 Inconsistency with the Loan Documents 27
25 No Modification: Binding Obligations 27
26 Miscellaneous 27
27 Enforceability 28
28 Receipt of Copy 28
29 Termination of Security Interest 28
Exhibit A - Description of the Land
Index of Defined Terms
Additional Mortgages 2
Additional Term Loan 1
Awards 5
Buildings 3
Code 24
Contractor's Claims 15
Event of Default 21
Fixtures 14
GAAP 15
Governmental Authority 7
Ground Leases 4
Impositions 9
Initial Term Loan 1
Insurance Proceeds 5
Interest Rate 8
Land 3
Leases 4
Legal Requirements 7
Letters of Credit 2
Liens 15
Loan Agreement 1
Loan Documents 2
Material Adverse Effect 15
Mortgage 1
Mortgagee 1
Mortgagor 2
Obligations 2
Permitted Encumbrances 6
Person 2
Provisions 27
Real Estate 3
Rents 4
Secured Indebtedness 2
Secured Obligations 3
Secured Property 3
Subsidiaries 15
Taking 14
Tax 8
Taxes 8
Term Loan 2
AMENDED AND RESTATED
FIRST MORTGAGE AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED FIRST MORTGAGE AND SECURITY
AGREEMENT ("Amendment") is made as of this ____ day of
____________, 1997, by INTERGRAPH CORPORATION, a Delaware
corporation, having an xxxxxx xx Xxx Xxxxxxx Xxxxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000-0000 ("Mortgagor"), and FOOTHILL CAPITAL
CORPORATION, a California corporation having an address at 00000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 90025-
3333 ("Mortgagee").
WITNESSETH:
WHEREAS, Mortgagor previously made, executed and delivered,
inter alia, the following documents to Mortgagee:
(a) that certain Loan and Security Agreement dated as of
December 20, 1996, as amended by Amendment Number One to
Loan and Security Agreement dated as of January 15, 1997,
and Amendment Number Two To Loan and Security Agreement
dated as of November 25, 1997 (collectively, the "Loan
Agreement"); and
(b) that certain First Mortgage And Security Agreement from
Mortgagor to Mortgagee dated January 6, 1997, and recorded
on January 6, 1997, in the Offices of the Probate Judge of
Madison County, Alabama at Mortgage Book 2248, Page 538 et
seq. (as amended and restated by this Amendment, the
"Mortgage"); and
WHEREAS, the Loan Agreement evidences, inter alia, a
$20,000,000 term loan from Mortgagee to Mortgagor (herein
referred to as the "Initial Term Loan"); and
WHEREAS, Mortgagee has made an additional term loan to
Mortgagor in the amount of Five Million and No/100 Dollars
($5,000,000), such term loan being identified in the Loan
Agreement as the "Additional Term Loan," and Mortgagor has agreed
that the repayment of the Initial Term Loan and the Additional
Term Loan shall be secured, equally and ratably, by the lien of
the Mortgage as amended and restated in accordance with the terms
of this Amendment; and
WHEREAS, the parties now desire to amend and restate the
terms, covenants, conditions and warranties of the Mortgage as
hereinafter provided.
NOW, THEREFORE, in consideration of the premises, the
foregoing representations of Mortgagor, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby covenant and agree
as follows:
Mortgagor covenants and agrees that the Mortgage is hereby
amended and restated such that the Mortgage, as amended and
restated hereby, shall secure the following obligations and
liabilities:
(a) the payment of (i) the Initial Term Loan and the
Additional Term Loan (collectively, the "Term Loan")
together with all accrued interest thereon to be paid
pursuant to the provisions of the Loan Agreement, (ii) any
future advances and readvances of such principal amount made
from time to time pursuant to the Loan Agreement, (iii) any
Letter of Credit (said term and other capitalized terms used
herein and not otherwise defined shall have the meaning set
forth in the Loan Agreement) reimbursement obligations that
may arise under Letters of Credit or L/C Guaranties issued
pursuant to the Loan Agreement; (iv) any and all other sums
due or to become due and any other monetary Obligations
under the Loan Agreement, this Mortgage or any other
document evidencing or securing the Loan or any other
obligations of Mortgagor entered into, executed or delivered
pursuant to the terms of the Loan Agreement, (v) any further
or subsequent advances made under the Loan Agreement this
Mortgage or any other Loan Document, and (vi) any
extensions, renewals, replacements or modifications of the
Loan Agreement or any other Loan Document (the items set
forth in clauses (i) through (vi) hereof, collectively, the
"Secured Indebtedness"), and
(b) the performance of all of the terms, covenants,
conditions, agreements, obligations and liabilities of
Mortgagor under (i) this Mortgage, (ii) the Loan Agreement,
(iii) the Loan Documents, (iv) any mortgages or deeds of
trust in addition to this Mortgage now or hereafter made by
Mortgagor to secure the Secured Indebtedness (such
additional mortgages and deeds of trust, collectively, the
"Additional Mortgages"), (v) any supplemental agreements,
undertakings, instruments, documents or other writings
executed by Mortgagor as a condition to advances under the
Loan Agreement or otherwise in connection with the Loan
Agreement (including, without limitation, the "Obligations",
as defined in the Loan Agreement), (vi) all security
agreements, chattel mortgages, pledges, powers of attorney,
consents, assignments, notices, leases and financing
statements heretofore, now or hereafter executed by or on
behalf of Mortgagor or any other Person and/or delivered to
Mortgagee in connection with the Loan Agreement or the
transactions contemplated thereby, and (vii) any extensions,
renewals, replacements or modifications of any of the
foregoing (all obligations and liabilities of Mortgagor
arising under this Mortgage, the Loan Agreement, the Loan
Documents, the Additional Mortgages and any other
supplemental agreements, undertakings, instruments,
documents, or other writings executed in connection with any
of the foregoing, together with (x) the foregoing powers of
attorney, consents, assignments, notices, leases and
financing statements, (y) any guarantees of the Secured
Indebtedness and (z) any deeds of trust, mortgages, security
agreements or assignments now or hereafter made to secure
the Secured Indebtedness and the obligations and liabilities
described herein are hereinafter collectively referred to as
the "Secured Obligations"); and
For and in consideration of the Secured Obligations and to
secure payment of the same, with interest thereon, and any
extensions or renewals of the same, and to further secure the
performance of the covenants and conditions and agreements
provided for in the Loan Agreement and as herein set forth, and
for other good and valuable consideration to Mortgagor, the
receipt and legal sufficiency hereby of which are acknowledged,
Mortgagor does hereby mortgage, give, grant, bargain, sell,
warrant, alienate, remise, release, convey, assign, transfer,
hypothecate, deposit, pledge, set over and confirm unto Mortgagee
the following described real and other property and all
substitutions for and all replacements, reversions and remainders
of such property, whether now owned or held or hereafter acquired
by Mortgagor (collectively, the "Secured Property"):
The fee simple and leasehold estate of Mortgagor with
respect to those plots, pieces or parcels of land more
particularly described in Exhibit A annexed hereto and made a
part hereof (which Exhibit A identifies the fee or leasehold
estate held by Mortgagor with respect to each such parcel),
together with the right, title and interest of Mortgagor, if any,
in and to the streets and in and to land lying in the bed of any
streets, roads or avenues, open or proposed, public or private,
in front of, adjoining or abutting said land to the center line
thereof, the air space and development rights pertaining to said
land and the right to use such air space and development rights,
all rights of way, privileges, liberties, tenements,
hereditaments and appurtenances belonging to, or in any way
appertaining to, said land, all easements now or hereafter
benefiting said land and all royalties and rights appertaining to
the use and enjoyment of said land, including, but without
limiting the generality of the foregoing, all alley, vault,
drainage, mineral, water, oil, coal, gas, timber and other
similar rights (collectively, the "Land");
TOGETHER with the buildings and other improvements now or
hereafter erected on the Land (the buildings and other
improvements, collectively, the "Buildings" and the Land together
with the Buildings and the Fixtures (hereinafter defined),
collectively, the "Real Estate");
TOGETHER with all and singular the reversion or reversions,
remainder or remainders, rents, issues, profits and revenues of
the Real Estate and all of the estate, right, title, interest,
dower and right of dower, curtesy and right of curtesy, property,
possession, claim and demand whatsoever, both in law and at
equity, of Mortgagor of, in and to the Real Estate and of, in and
to every part and parcel thereof, with the appurtenances, at any
time belonging or in any way appertaining thereto;
TOGETHER with all of the fixtures, systems, machinery,
apparatus, equipment and fittings of every kind and nature
whatsoever and all appurtenances and additions thereto and
substitutions or replacements thereof now owned or hereafter
acquired by Mortgagor and now or hereafter attached or affixed
to, or constituting a part of, the Real Estate or any portion
thereof (collectively the "Fixtures"), including, but without
limiting the generality of the foregoing, all heating,
electrical, mechanical, lighting, lifting, plumbing, ventilating,
air conditioning and air-cooling fixtures, systems, machinery,
apparatus and equipment, refrigerating, incinerating and power
fixtures, systems, machinery, apparatus and equipment, loading
and unloading fixtures, systems, machinery, apparatus and
equipment, escalators, elevators, boilers, communication systems,
switchboards, sprinkler systems and other fire prevention and
extinguishing fixtures, systems, machinery, apparatus and
equipment, and all engines, motors, dynamos, machinery, wiring,
pipes, pumps, tanks, conduits and ducts constituting a part of
any of the foregoing, it being understood and agreed that all of
the Fixtures are appropriated to the use of the Real Estate and,
for the purposes of this Mortgage, shall be deemed conclusively
to be Real Estate and mortgaged hereby;
TOGETHER with all drainage, mineral, water, oil, gas, timber
and sewer pipes, conduits and wires, and other facilities
furnishing utility or other services and other similar rights now
or hereafter benefitting the Real Estate or any portion thereof
or appertaining thereto;
TOGETHER with all of Mortgagor's right, title and interest
and leasehold estate under any leases held by Mortgagor, as
lessee, with respect to any portion of the Real Estate (as
described in Exhibit A hereto), including all powers, options,
renewal rights and other rights and interest of Mortgagor, as
lessee, under the terms of any such leases (collective the
"Ground Leases");
TOGETHER with Mortgagor's right, title and interest in, to
and under all leases, subleases, underlettings, concession
agreements, licenses and other occupancy agreements which now
exist or which may hereafter be granted by Mortgagor, as lessor,
affecting the Real Estate or any portion thereof and under any
and all guarantees, modifications, renewals and extensions
thereof (collectively, the "Leases"), and in and to any and all
deposits made or hereafter made as security under the Leases,
subject to the prior legal rights under the Leases of the lessees
making such deposits, together with any and all of the benefits,
revenues, income, rents, issues and profits due or to become due
or to which Mortgagor is now or hereafter may become entitled
arising out of the Leases or the Real Estate or any portion
thereof (collectively, the "Rents");
TOGETHER with (a) all unearned premiums accrued, accruing or
to accrue under any insurance policies now or hereafter obtained
by Mortgagor and Mortgagor's interest in and to all proceeds
which now or hereafter may be paid in connection with the
conversion of the Secured Property or any portion thereof into
cash or liquidated claims, together with the interest payable
thereon and the right to collect and receive the same, including,
but without limiting the generality of the foregoing, proceeds of
casualty insurance, title insurance and any other insurance now
or hereafter maintained by Mortgagor with respect to the Real
Estate or in connection with the use or operation thereof
(collectively, the "Insurance Proceeds"), and (b) all awards,
payments and/or other compensation, together with the interest
payable thereon and the right to collect and receive the same,
which now or hereafter may be made with respect to the Secured
Property as a result of (i) a taking by eminent domain,
condemnation or otherwise, (ii) the change of grade of any
street, road or avenue or the widening of any streets, roads or
avenues adjoining or abutting the land, or (iii) any other injury
to, or decrease in the value of, the Secured Property or any
portion thereof (collectively, the "Awards"), in any of the
foregoing circumstances described in clauses (a) or (b) above to
the extent of the entire amount of the Secured Indebtedness
outstanding as of the date of Mortgagee's receipt of any such
Insurance Proceeds or Awards, notwithstanding that the entire
amount of the Secured Indebtedness may not then be due and
payable, and also to the extent of reasonable attorneys' fees,
costs and disbursements incurred by Mortgagee in connection with
the collection of any such Insurance Proceeds or Awards.
Mortgagor hereby assigns to Mortgagee, and Mortgagee is hereby
authorized to collect and receive, all Insurance Proceeds and
Awards and to give proper receipts and acquittances therefor and
to apply the same toward the Secured Indebtedness as herein set
forth notwithstanding that the entire amount of the Secured
Indebtedness may not then be due and payable. Mortgagor hereby
agrees to make, execute and deliver, from time to time, upon
demand, such further documents, instruments or assurances as may
be requested by Mortgagee to confirm the assignment of the
Insurance Proceeds and the Awards to Mortgagee, free and clear of
any interest of Mortgagor whatsoever therein and free and clear
of any other Liens (hereinafter defined), claims or encumbrances
of any kind or nature whatsoever;
TOGETHER with all right, title and interest of Mortgagor in
and to all extensions, improvements, betterments, renewals,
substitutes and replacements of, and all additions and
appurtenances to, the Real Estate, and in each such case, the
foregoing shall be deemed a part of the Real Estate and shall
become subject to the Lien of this Mortgage as fully and
completely, and with the same priority and effect, as though now
owned by Mortgagor and specifically described herein, without any
further mortgage, conveyance, assignment or other act by
Mortgagor;
TOGETHER with all of Mortgagor's rights to further encumber
the Secured Property for debt.
TO HAVE AND TO HOLD the Secured Property and the rights and
privileges hereby mortgaged or intended so to be unto Mortgagee
and its successors and assigns for the uses and purposes herein
set forth, until the Secured Indebtedness is fully paid and the
Secured Obligations are fully performed in accordance with the
provisions set forth herein and in the other Loan Documents.
Mortgagor, for itself and its successors and assigns,
further represents, warrants, covenants and agrees with Mortgagee
as follows:
1 Warranty of Title. Except as otherwise set forth on Exhibit
A, Mortgagor warrants that it is lawfully seized of a good and
marketable leasehold estate under the Ground Leases or fee simple
absolute title (as particularly described in Exhibit A hereto) to
the Real Estate and has the right to mortgage the same in
accordance with the provisions set forth in this Mortgage and
that this Mortgage is a valid and enforceable first Lien on the
Secured Property, subject only to the exceptions to title more
particularly described in Commitment for Title No. 050122-041
dated December 10, 1996, as redated to the date hereof, issued by
First American Title Insurance Company to Mortgagee
(collectively, the "Permitted Encumbrances"). Mortgagor shall (a)
preserve such title and the validity and priority of the Lien of
this Mortgage and shall forever warrant and defend the same unto
Mortgagee against the claims of all and every Person or Persons,
corporation or corporations and parties whomsoever, and (b) make,
execute, acknowledge and deliver all such further or other deeds,
documents, instruments or assurance and cause to be done all such
further acts and things as may at any time hereafter be required
by Mortgagee to confirm and fully protect the Lien and priority
of this Mortgage.
2 Payment of Secured Indebtedness.
2.1 Mortgagor shall pay the Secured Indebtedness at the
times and places and in the manner specified in the Loan
Documents and shall perform all of the Secured Obligations in
accordance with the provisions set forth herein and in the other
Loan Documents. Anything to the contrary herein notwithstanding,
the maximum principal amount (exclusive of costs, expenses,
protective advances, and interest) at any time secured by this
Mortgage shall not exceed Twenty-Five Million and No/100 Dollars
($25,000,000.00); furthermore, the Secured Obligations shall not
include any obligations for the payment of principal or interest
with respect to any revolving loans or future loan advances under
the terms of any of the Loan Documents.
2.2 Any payment made in accordance with the terms of this
Mortgage by any Person at any time liable for the payment of the
whole or any part of the Secured Indebtedness, or by any
subsequent owner of the Secured Property, or by any other Person
whose interest in the Secured Property might be prejudiced in the
event of a failure to make such payment, or by any stockholder,
officer or director of a corporation or by any partner of a
partnership which at any time may be liable for such payment or
may own or have such an interest in the Secured Property shall be
deemed, as between Mortgagee and all Persons who at anytime may
be liable as aforesaid or may own the Secured Property, to have
been made on behalf of all such Persons.
3 Requirements: Proper Care and Use.
3.1 Subject to the right of Mortgagor to contest a Legal
Requirement (hereinafter defined) as provided in Article 10
hereof, Mortgagor promptly shall comply with, or cause to be
complied with, all present and future laws, statutes, codes,
ordinances, orders, judgments, decrees, injunctions, rules,
regulations, restrictions and requirements (collectively "Legal
Requirements") of every federal, state, county, municipal or
other governmental authority having jurisdiction over Mortgagor
or the Secured Property (a "Governmental Authority") (and, unless
such contest operates to suspend compliance with such
Governmental Authority, in no case later than the time period
allowed under any order or other form of notice issued by such
Governmental Authority) or the use, manner of use, occupancy,
possession, operation, maintenance, alteration, repair or
restoration of the Real Estate, without regard to the nature of
the work to be done or the cost of performing the same, whether
foreseen or unforeseen, ordinary or extraordinary, and shall
perform, or cause to be performed, all obligations, agreements,
covenants, restrictions and conditions now or hereafter of record
which may be applicable to Mortgagor or to the Secured Property
or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration, repair or restoration of the Real
Estate.
3.2 Except as it may otherwise be permitted by the Loan
Agreement, Mortgagor shall (i) not abandon the Real Estate or any
portion thereof, (ii) subject to Articles 6 and 7 hereof,
maintain the Real Estate in good repair, order and condition,
(iii) subject to Articles 6 and 7 hereof, promptly make all
necessary repairs to the Real Estate, (iv) not commit or suffer
waste with respect to the Real Estate, (v) refrain from impairing
or diminishing the value or integrity of the Secured Property or
the priority or security of the Lien of this Mortgage, (vi) not
remove, demolish or materially alter any of the Real Estate
without the prior written consent of Mortgagee in each instance,
except that Mortgagor shall have the right without the consent of
Mortgagee to remove and dispose of, free of the Lien of this
Mortgage, such Fixtures as may, from time to time, become worn
out or obsolete, provided that if Mortgagor shall replace the
same with other Fixtures then such replacement Fixtures shall be
free of any security agreements or other Liens or encumbrances of
any kind or nature whatsoever, and by such removal and
replacement, Mortgagor shall be deemed to have subjected such
replacement Fixtures to the Lien and priority of this Mortgage,
(vii) not make, install or permit to be made or installed,any
material alterations or additions to the Real Estate if doing so
would materially impair the use of the Secured Property by
Mortgagor in the conduct of its business, (viii) not make, suffer
or permit any nuisance to exist on the Real Estate or any portion
thereof, and (ix) permit Mortgagee and its agents, at the times
and in the manner set forth in the Loan Agreement and subject to
the rights of tenants under Leases, to enter upon the Real Estate
for the purpose of inspecting and appraising the Real Estate or
any portion thereof.
3.3 Mortgagor shall not by any act or omission permit any
building or other improvement located on any property which is
not subject to the Lien of this Mortgage to rely upon the Real
Estate or any portion thereof or any interest therein to fulfill
any Legal Requirement and Mortgagor hereby assigns to Mortgagee
any and all rights to give consent for all or any portion of the
Real Estate or any interest therein to be so used. The Real
Estate is zoned as one or more lots separate and apart from all
other premises and Mortgagor shall not, by any act or omission,
impair the integrity of the Real Estate as such lot or lots or
initiate or join in any zoning change, private easement or any
other modification of the zoning regulating the Real Estate.
Unless first approved in writing by Mortgagee, Mortgagor shall
not (i) impose any restrictive covenants or encumbrances upon the
Real Estate, execute or file any subdivision plot affecting the
Real Estate or consent to the annexation of the Real Estate to
any municipality or (ii) permit or suffer the Real Estate to be
used by the public or any Person in such manner as might make
possible a claim of adverse usage or possession or of any implied
dedication or easement. To the extent allowed by applicable law,
any act or omission by Mortgagor which would result in a
violation of any of the provisions of this Article shall be null
and void.
4 Taxes on Secured Property or Mortgagee.
4.1 If any Governmental Authority shall levy, assess or
charge any tax, assessment, fee or imposition upon this Mortgage
or any other Loan Document, the Secured Indebtedness, the
interest of Mortgagee in the Secured Property, or Mortgagee by
reason of this Mortgage or any other Loan Document, the Secured
Indebtedness or Mortgagee's interest in the Secured Property
(individually a "Tax", and collectively "Taxes") (excepting
therefrom any taxes measured by Mortgagee's net income, and
franchise taxes imposed on it, by the jurisdiction (or any
political subdivision thereof under the laws of which Mortgagee
is organized), Mortgagor shall pay all such Taxes to, for, or on
account of, Mortgagee as they become due and payable and, on
demand, shall furnish proof of such payment to Mortgagee. If
Mortgagor shall fail to so pay any such Tax, then, Mortgagee, at
its option and upon simultaneous notice, may pay any such Tax
and, in such event, the amount so paid (i) shall be deemed to be
Secured Indebtedness, (ii) shall be a Lien on the Secured
Property prior to any right or title to, interest in, or claim
upon, the Secured Property subordinate to the Lien of this
Mortgage, and (iii) immediately shall be due and payable, on
demand, together with interest thereon at the rate of interest
then payable under the Loan Agreement, including, in calculating
such rate of interest, any additional interest which is then
imposed under the Loan Agreement by reason of any Event of
Default thereunder (such rate of interest, the "Interest Rate"),
from the date of any such payment by Mortgagee to the date of
repayment to Mortgagee.
4.2 If any Governmental Authority shall at any time require
revenue, documentary or similar stamps to be affixed to this
Mortgage or any other Loan Document or shall require the payment
of any Taxes with respect to the ownership or recording of this
Mortgage or any other Loan Document, Mortgagor, upon demand,
shall pay for such stamps in the required amount and shall
deliver the same to Mortgagee, together with a copy of the
receipted xxxx therefor. If Mortgagor shall fail to so pay for
any such stamps, then, Mortgagee, upon simultaneous notice to
Mortgagor, may pay for the same and, in such event, the amount so
paid (i) shall be deemed to be Secured Indebtedness, (ii) shall
be a Lien on the Secured Property prior to any right or title to,
or interest in, or claim upon, the Secured Property subordinate
to the Lien of this Mortgage, and (iii) immediately shall be due
and payable, on demand, together with interest thereon at the
Interest Rate, from the date of any such payment by Mortgagee to
the date of repayment to Mortgagee. Mortgagor shall indemnify
Mortgagee for, and shall hold Mortgagee harmless from and
against, any and all liability which Mortgagee may incur on
account of such revenue, documentary or other similar stamps or
by reason of any Taxes referred to in Paragraph 4.1 hereof,
whether such liability arises before or after payment of the
Secured Indebtedness and whether or not the Lien of this Mortgage
shall have been released.
5 Payment of Impositions.
5.1 Subject to the provisions of Article 10 hereof and
except to the extent the failure to comply with any of the
following is permitted by the Loan Agreement, not later than the
date on which payment of the same shall be due, that is, the day
before the date on which any fine, penalty, interest, late charge
or loss may be added thereto or imposed by reason of the
non-payment thereof, Mortgagor shall pay and discharge all Taxes
(including, but without limiting the generality of the foregoing,
all real property taxes and assessments, personal property taxes,
income, franchise, withholding, profits and gross receipts
taxes), charges for any easement or agreement maintained for the
benefit of the Secured Property or any portion thereof, general
and special assessments and levies, permit, inspection and
license fees, water and sewer rents and charges and any other
charges of every kind and nature whatsoever, foreseen or
unforeseen, ordinary or extraordinary, public or private, which,
at any time, are imposed upon or levied or assessed against
Mortgagor or the Secured Property or any portion thereof, or
which arise with respect to, or in connection with, the use,
manner of use, occupancy, possession, operation, maintenance,
alteration, repair or restoration of the Real Estate or any
portion thereof, together with any penalties, interest or late
charges which may be imposed in connection with any of the
foregoing (all of the foregoing taxes, assessments, levies and
other charges, together with such interest, penalties and late
charges, collectively, "Impositions"). If, however, any Legal
Requirement shall allow that any Imposition may, at Mortgagor's
option, be paid in installments (whether or not interest shall
accrue on the unpaid balance of such Imposition), Mortgagor may
exercise the option to pay such Imposition in such installments
and, in such event, Mortgagor shall be responsible for the
payment of all such installments, together with the interest, if
any, thereon, in accordance with the provisions of the applicable
Legal Requirement. Within five (5) days after a request by
Mortgagee, Mortgagor shall deliver to Mortgagee evidence
acceptable to Mortgage showing the payment of such Imposition.
Mortgagor also shall deliver to Mortgagee, within five (5) days
after a request by Mortgagee, copies of all settlements and
notices pertaining to any imposition that may be issued by any
Governmental Authority.
5.2 Nothing contained in this Mortgage shall affect any
right or remedy of Mortgagee under this Mortgage or otherwise to
pay, upon simultaneous notice, any imposition from and after the
date on which such Imposition shall have become due and payable
and, in such event, the amount so paid (i) shall be deemed to be
Secured Indebtedness, (ii) shall be a Lien on the Secured
Property prior to any right or title to, interest in, or claim
upon, the Secured Property subordinate to the Lien of this
Mortgage, and (iii) shall be immediately due and payable, on
demand; together with interest thereon at the Interest Rate, from
the date of any such payment by Mortgagee to the date of
repayment to Mortgagee.
6 Insurance.
6.1 Mortgagor shall provide and keep in full force and
effect, or require to be provided and kept in full force and
effect, for the benefit of Mortgagee, as hereinafter provided:
A. insurance for the Buildings and the Fixtures
(w) against loss or damage by fire, lightning,
windstorm, tornado, hail and such other further and
additional hazards of whatever kind or nature as are
now or hereafter may be covered by standard extended
coverage "all risk" endorsements (including, but
without limiting the generality of the foregoing, and
specifically, vandalism, malicious mischief and damage
by water) of whatsoever kind, (x) against flood
disaster pursuant to the Flood Disaster Protection Act
of 1973,84 Stat. 572,42 U.S.C. 4001 if the Real Estate
is located in an area identified by the United States
Department of Housing and Urban Development as a flood
hazard area, (y) against loss of rentals and business
interruption due to any of the foregoing causes, and
(z) when and to the extent reasonably required by
Mortgagee, against any other risk insured against by
Persons operating properties similar to the Real Estate
and located in the vicinity of the Real Estate or
operations similar to the operations conducted at the
Real Estate;
B. insurance for demolition and increased cost
of construction coverage;
C. if a sprinkler system shall be located in the
Buildings, sprinkler leakage insurance;
D. comprehensive public liability insurance with
respect to the Real Estate and the operations related
thereto, whether conducted on or off the Real Estate,
against liability for personal injury, including bodily
injury and death, and property damage. Such
comprehensive public liability insurance shall be on an
occurrence basis and shall specifically include, but
not be limited to, sprinkler leakage legal liability
(if a sprinkler shall be located in the Buildings),
water damage legal liability, products liability, motor
vehicle liability for all owned and non-owned vehicles,
including rented and leased vehicles, and contractual
indemnification; and
E. such other insurance in such amounts as may
from time to time be reasonably required by Mortgagee
against such other insurable hazards as at the time are
commonly insured against in the case of properties
similar to the Real Estate and located in the vicinity
of the Real Estate or operations similar to the
operations conducted at the Real Estate.
All insurance provided hereunder shall be in such form and in
such amounts as, from time to time, shall be acceptable to
Mortgagee, in its reasonable discretion, shall name Mortgagee as
a named insured under a standard "noncontributory mortgagee"
endorsement or its equivalent, which shall be reasonably
acceptable to Mortgagee, shall be provided by insurance companies
which have a Best's rating of at least "AXII" and otherwise shall
be acceptable to Mortgagee in its reasonable discretion. In the
event Mortgagor shall receive any Insurance Proceeds, then
Mortgagor shall promptly pay such Insurance Proceeds directly to
Mortgagee in the manner set forth in the Loan Agreement.
Anything contained herein to the contrary notwithstanding, in no
event shall the insurance provided under Paragraph 6.1.A.w hereof
or under Paragraph 6.1.B hereof be in an amount which is less
than One Hundred Percent (100%) of the full replacement cost of
the Buildings and the Fixtures, including the cost of debris
removal, but excluding the value of foundations and excavations,
as reasonably determined from time to time by Mortgagee. Every
policy of insurance referred to in this Paragraph shall contain
an agreement by the insurer that it will not cancel such policy
except alter thirty (30) days prior written notice to Mortgagee
and that any loss payable thereunder shall be payable
notwithstanding any act or negligence of Mortgagor or Mortgagee
which might, absent such agreement, result in a forfeiture of all
or a part of such insurance payment and notwithstanding (A)
occupancy or use of the Secured Property for purposes more
hazardous than permitted by the terms of such policy, (B) any
foreclosure or other action or proceeding taken by Mortgagee
pursuant to this Mortgage upon the happening of an Event of
Default (hereinafter defined) or (C) any change in title or
ownership of the Secured Property. Mortgagor shall assign and
deliver to Mortgagee all such policies of insurance, or duplicate
originals thereof or certificates evidencing the coverage
thereunder. If any insurance required to be provided hereunder
shall expire, be withdrawn, become void by breach of any
condition thereof by Mortgagor or by any lessor under the Ground
Leases or any lessee of the Real Estate or any portion thereof,
or-become void or questionable by reason of the failure or
impairment of the capital of any insurer, or if for any other
reason whatsoever any such insurance shall become unsatisfactory
to Mortgagee in its reasonable discretion, Mortgagor immediately
shall obtain new or additional insurance which shall be
satisfactory to Mortgagee in its reasonable discretion.
Mortgagor shall not take out any separate or additional insurance
which is contributing in the event of loss unless it is properly
endorsed and otherwise satisfactory to Mortgagee in all respects.
6.2 Mortgagor shall (i) pay as they become due all premiums
for the insurance required hereunder, and (ii) not later than
thirty (30) days prior to the expiration of each such policy,
deliver a renewal policy or a duplicate original thereof and a
certificate of insurance indicating that the insurance is then in
effect or accompanied by such other evidence of payment as shall
be satisfactory to Mortgagee in its discretion.
6.3 If Mortgagor shall be in default of its obligation to
so insure or deliver any such-prepaid policy or policies of
insurance to Mortgagee in accordance with the provisions hereof,
Mortgagee, at its option and upon simultaneous notice to
Mortgagor, may effect such insurance from year to year, and pay
the premium or premiums therefor, and, in such event, the amount
of all such premium or premiums (i) shall be deemed to be Secured
Indebtedness, (ii) shall be a Lien on the Secured Property prior
to any right or title to, or interest in, or claim upon, the
Secured Property subordinate to the Lien of this Mortgage, and
(iii) shall be immediately due and payable, on demand, together
with interest thereon at the Interest Rate, from the date of any
such payment by Mortgagee to the date of repayment to Mortgagee.
6.4 At the request of Mortgagee, Mortgagor shall increase
the amount of insurance required to be provided pursuant to the
provisions of Paragraph 6.1.A.w hereof and Paragraph 6.1.B hereof
by using the Factory Mutual Index to determine whether there
shall have been an increase in the replacement cost of the
Buildings and the Fixtures since the most recent adjustment to
any such policy and, if there shall have been any such increase,
the amount of insurance required to be provided hereunder shall
be adjusted accordingly.
6.5 Mortgagor promptly shall comply with, and shall cause
the Buildings and the Fixtures to comply with, (i) all of the
provisions of each such insurance policy, and (ii) all of the
requirements of the insurers thereunder applicable to Mortgagor
or to any of the Buildings or the Fixtures or to the use, manner
of use, occupancy, possession, operation, maintenance,
alteration, repair or restoration of any of the Buildings or the
Fixtures if the failure to comply therewith could foreseeably
permit the insurer to deny coverage or to cancel any insurance
required hereunder, even if such compliance would necessitate
structural changes or improvements or would result in
interference with the use or enjoyment of the Real Estate or any
portion thereof. If Mortgagor shall use the Real Estate or any
portion thereof in any manner which would permit the insurer to
cancel any insurance required to be provided hereunder, Mortgagor
shall obtain prior to the cancellation thereof a substitute
policy which shall be satisfactory to Mortgagee and which shall
be effective on or prior to the date on which any such other
insurance policy shall be cancelled.
6.6 If the Buildings or the Fixtures or any portion thereof
shall be materially damaged, destroyed or injured by fire or any
other casualty (whether insured or uninsured), Mortgagor shall
give prompt notice thereof to Mortgagee.
6.7 In the event of any damage, destruction or injury,
then, if no Event of Default has occurred and is then continuing,
Mortgagee and Mortgagor shall jointly adjust, collect and
compromise all such claims under all policies of insurance and
execute and deliver on behalf of Mortgagor all necessary proofs
of loss, receipts, vouchers and releases required by the
insurers. If any Event of Default shall have occurred and then be
continuing, Mortgagee may, at its option, adjust, collect and
compromise all such claims. If, prior to the payment of any
Insurance Proceeds, the Secured Property or any portion thereof
shall have been sold on foreclosure of this Mortgage, then
Mortgagor shall direct each insurer to pay to Mortgagee the
amount of any deficiency found to be due upon such sale, whether
or not a deficiency judgment on this Mortgage shall have been
sought or recovered or denied, together with interest thereon at
the Interest Rate.
6.8 The insurance required by this Mortgage may, at the
option of Mortgagor, be effected by blanket and/or umbrella
policies issued to Mortgagor covering the Buildings and the
Fixtures as well as other properties (real and personal) which
are owned or leased by Mortgagor, provided that, in each case,
the policies otherwise comply with the provisions of this
Mortgage and allocate to the Buildings and the Fixtures, from
time to time, the coverage specified by Mortgagee, without
possibility of reduction or coinsurance by reason of, or damage
to, any other property (real or personal) named therein. If the
insurance required by this Mortgage shall be effected by any such
blanket or umbrella policies, Mortgagor shall furnish to
Mortgagee original certificates evidencing policies thereof,
with, if requested by Mortgagee, schedules attached thereto
showing the amount of the insurance provided under such policies
which is applicable to the Buildings and the Fixtures.
6.9 Any transfer of the Secured Property, in accordance
with the provisions hereof, including a transfer by foreclosure
or deed in lieu of foreclosure, shall transfer therewith all of
Mortgagor's interest in all property insurance policies then
covering the Buildings and the Fixtures or the operations
conducted at the Real Estate, including, but without limiting the
generality of the foregoing, any unearned premiums.
7 Condemnation/Eminent Domain.
7.1 Mortgagor shall notify Mortgagee promptly upon
obtaining knowledge of the institution of (i) any taking by
eminent domain, condemnation or otherwise of all or any portion
of the Secured Property, or (ii) the change of grade of any
street, road or avenue or the widening of streets, roads or
avenues adjoining or abutting the Land, or (iii) any other,
injury to, or decrease in value of, the Secured Property caused
in any manner by any Governmental Authority (any of the foregoing
events, a "Taking").
7.2 If no Event of Default has occurred and is then
continuing, Mortgagee and Mortgagor shall jointly negotiate and
settle any such proceedings with respect to such a Taking and the
amount of any Award to be made in connection therewith and shall
jointly execute and deliver on behalf of Mortgagor all necessary
proofs of loss, receipts, vouchers and releases required in
connection with any such Taking. If any Event of Default shall
have occurred and then be continuing, then Mortgagee may, at its
option, negotiate and settle such claims. Mortgagor agrees to
execute, upon demand by Mortgagee, all such proofs of loss,
receipts, vouchers and releases and to cooperate with Mortgagee
in connection therewith. Mortgagor shall direct the applicable
Governmental Authority to make payment of any such Award directly
to Mortgagee and Mortgagee is hereby authorized to endorse any
draft therefor as Mortgagor's attorney-in-fact. If, prior to the
payment of any Award, the Secured Property or any portion thereof
shall have been sold on foreclosure of this Mortgage, Borrower
shall direct the applicable Governmental Authority to pay to
Mortgagee the amount of any deficiency found to be due upon such
sale, whether or not a deficiency judgment on this Mortgage shall
have been sought or recovered or denied, together with interest
thereon at the Interest Rate.
8 Sale and Lease of Secured Property. Except to the extent
permitted under the Loan Agreement, Mortgagor shall not, at any
time, without the prior written consent of Mortgagee in each
instance,
8.1 sell, assign, transfer or convey all or any part of the
Secured Property or any interest therein; or
8.2 lease or sublease the Real Estate or any portion
thereof except in accordance with the terms hereof; or
8.3 (i) make any new or additional mortgage, deed of trust
or other loan which is secured by the Secured Property or any
portion thereof (whether superior or junior to the Lien of this
Mortgage and whether recourse or non-recourse) unless such loan
is made by Mortgagee, or (ii) except for the Permitted
Encumbrances and subject to the provisions of Articles 9 and 10
hereof and except for other Liens permitted by the Loan
Agreement, otherwise create, grant, permit or suffer any Lien,
security interest, claim, charge or encumbrance of any kind or
nature whatsoever, whether recorded or unrecorded, against the
Secured Property or any portion thereof.
Mortgagor shall comply with or otherwise perform, keep or
observe, all terms, provisions, conditions, covenants, warranties
and representations contained in any mortgage that is subordinate
to this Mortgage and shall not permit or suffer a default under
any such mortgage or deed of trust.
9 Liens. Subject to the provisions of Article 10 hereof,
Mortgagor at all times shall keep the Secured Property free from
any and all "Liens" (which term shall hereinafter have the
meaning ascribed thereto in the Loan Agreement) except as
permitted under the Loan Agreement and except for the Permitted
Encumbrances.
10 Right of Contest. Mortgagor, at its sole cost and expense,
may, in good faith, contest, by proper legal actions or
proceedings, the validity of any Legal Requirement or the
application thereof to Mortgagor or the Secured Property, or the
validity or amount of any Imposition or the validity of the
claims of any mechanics, laborers, subcontractors, contractors or
materialmen ("Contractor's Claims"). During the pendency of any
such action or proceeding, compliance with such contested Legal
Requirement or payment of such contested Imposition or payment of
such contested Contractor's Claim may be deferred provided that,
in each case, at the time of the commencement of any such action
or proceeding, and during the pendency of such action or
proceeding (a) no Event of Default shall exist hereunder and no
other event shall have occurred which, with the giving of notice
or lapse of time, or both, would constitute an Event of Default
hereunder, (b) adequate reserves with respect thereto are
maintained on Mortgagor's books in accordance with GAAP (as
defined in the Loan Agreement) and the applicable provisions of
the Loan Agreement, (c) such contest operates to suspend
enforcement of compliance with the contested Legal Requirement or
collection of the contested Imposition or collection or
enforcement of such contested Contractor's Claim, (d) during the
pendency of such action or proceeding, Mortgagor is able to make
full use and benefit of the Secured Property and (e) such contest
is maintained and prosecuted continuously and with diligence,
notwithstanding any such reserves, Mortgagor promptly shall
comply with any contested Legal Requirement or shall pay any
contested Imposition or Contractor's Claim, and compliance
therewith or payment thereof shall not be deferred, if, at any
time, the Secured Property or any portion thereof shall be, in
Mortgagee's judgment, in danger of being forfeited or lost by
reason of any such contest or Mortgagor's non-compliance with any
such Legal Requirement or non-payment of any such Imposition or
Contractor's Claim and such claim has or could foreseeably have a
Material Adverse Effect (as defined in the Loan Agreement) on the
Borrower and its Subsidiaries (as defined in the Loan Agreement)
taken as one enterprise. If such action or proceeding is
terminated or discontinued adversely to Mortgagor, Mortgagor,
upon demand, shall deliver to Mortgagee evidence satisfactory to
Mortgagee, in its reasonable discretion, of Mortgagor's
compliance with such contested Legal Requirement or payment of
such contested Imposition or Contractor's Claim, as the case may
be.
11 Leases and Ground Leases.
11.1. Leases.
A. Mortgagor has no right or power, as against
Mortgagee, without the prior written consent of
Mortgagee, to enter into any Lease affecting the
Secured Property, except as permitted under the Loan
Agreement.
B. Each Lease hereinafter entered into by
Mortgagor shall (i) by its express terms not permit the
lessee thereunder to terminate or invalidate the terms
of its Lease as a result of any action taken by
Mortgagee to enforce this Mortgage either by
foreclosure, or acceptance of a deed in lieu of
foreclosure, or by resort to any other rights or
remedies available to Mortgagee hereunder or at law or
in equity, (ii) include a subordination clause
providing that the Lease and the interest of the lessee
thereunder in the Secured Property are in all respects
subject and subordinate to this Mortgage, (iii) provide
that, at the option of Mortgagee or the purchaser at a
foreclosure sale or the grantee in a voluntary
conveyance in lieu of foreclosure, the lessee
thereunder shall attorn to Mortgagee or to such
purchaser or grantee under all of the terms of the
Lease and recognize such entity as the lessor under the
Lease for the balance of the term of the Lease, and
(iv) provide that, in the event of the enforcement by
Mortgagee of the rights and remedies provided by law or
in equity or by this Mortgage, any Person succeeding to
the interest of Mortgagee as a result of such
enforcement shall not be bound by any prepayment of
installments of rent for more than thirty (30) days in
advance of the time when the same shall become due,
except for security deposits not in excess of three
months' rent, or by any amendment, modification,
extension, cancellation or renewal of the Lease made
without the prior written consent of Mortgagee.
C. As to all Leases, Mortgagor shall (i)
promptly perform all of the provisions of the Leases on
the part of the lessor thereunder to be performed, (ii)
promptly enforce all of the provisions of the Leases on
the part of the lessees thereunder to be performed,
(iii) refrain from taking any action that would result
in the termination of the Lease by any lessee
thereunder or the diminution of the Rents thereunder,
(iv) appear in and prosecute or defend any action or
proceeding arising under, growing out of, or in any
manner connected with, the Leases or the obligations of
the lessor or the lessees thereunder, as the case may
be, (v) exercise, within five (5) days after demand by
Mortgagee, any right to request from the lessee under
any Lease a certificate with respect to the status
thereof, (vi) deliver to Mortgagee, within twenty (20)
days after demand by Mortgagee, a written statement
containing the names of all lessees, the terms of all
Leases and the spaces occupied and rentals payable
thereunder and a statement of all Leases which are then
in default, including the nature and magnitude of any
such default and (vii) provide Mortgagee with a copy of
each notice of default received by Mortgagor under any
Lease immediately upon receipt thereof and deliver to
Mortgagee a copy of each notice of material default
sent by Mortgagor under any Lease simultaneously with
its delivery of such notice under such Lease, and
(viii) promptly deliver to Mortgagee a copy of any
Lease. Notwithstanding the foregoing, Mortgagor shall
not be required to perform any of the actions described
in clauses (i) through (iv) of this paragraph if the
failure to do so would not cause a Material Adverse
Effect (as defined in the Loan Agreement).
D. Mortgagor hereby assigns to Mortgagee, from
and after the date hereof (including any period allowed
by law for redemption after any foreclosure or other
sale), primarily, on a parity with the Secured
Property, and not secondarily, as further security for
the payment of the Secured Indebtedness and the
performance of the Secured Obligations, the Leases and
the Rents. Nothing contained in this Article shall be
construed to bind Mortgagee to the performance of any
of the terms, covenants, conditions or agreements
contained in any Lease or otherwise impose any
obligation on Mortgagee (including, but without
limiting the generality of the foregoing, any liability
under the covenant of quiet enjoyment contained in any
Lease in the event that any lessee shall have been
joined as a party defendant in any action to foreclose
this Mortgage or commenced by reason of an Event of
Default hereunder or in the event any lessee shall have
been barred and foreclosed of any or all right, title
and interest and equity of redemption in the Secured
Property), except that Mortgagee shall be accountable
for any money actually received pursuant to the
aforesaid assignment. Mortgagor hereby further grants
to Mortgagee the right, but not the obligation,
following the occurrence and during the continuation of
an Event of Default (i) to enter upon and take
possession of the Real Estate for the purpose of
collecting the Rents, (ii) to dispossess by the usual
summary proceedings any lessee defaulting in making any
payment due under any Lease to Mortgagee or defaulting
in the performance of any of its other obligations
under its Lease, (iii) to let the Real Estate or any
portion thereof, (iv) to apply the Rents on account of
the Secured Indebtedness, and (v) to perform such other
acts as Mortgagee is entitled to perform pursuant to
this Article. Such assignment and grant shall continue
in effect until this Mortgage terminates in accordance
with the terms hereof, the execution of this Mortgage
constituting and evidencing the irrevocable consent of
Mortgagor to the entry upon and taking possession of
the Real Estate by Mortgagee following the Occurrence
and during the continuation of an Event of Default
pursuant to such grant, whether or not an action to
foreclose this Mortgage has been instituted and without
applying for a receiver. Mortgagee, however, grants to
Mortgagor, not as a limitation or condition hereof, but
as a personal covenant available only to Mortgagor and
its successors and not to any lessee or other Person, a
license, revocable upon five (5) days' written notice
to Mortgagor following and during the continuation of
an Event of Default, to collect all of the Rents and to
retain, use and enjoy the same, unless an Event of
Default shall exist hereunder or, unless any event
shall have occurred which, with the giving of notice or
the lapse of time, or both, would constitute an Event
of Default hereunder or, at Mortgagee's option, for any
other reason whatsoever.
E. Mortgagor shall receive the Rents as set
forth in Section 11.4 hereof and shall hold the Rents
as a fund to be applied first to the payment of the
Impositions and then to the payment of insurance
coverages required under Article 6 hereof before
applying any portion of the same to other purposes.
F. Upon notice and demand, Mortgagor shall, from
time to time, execute, acknowledge and deliver to
Mortgagee, or shall cause to be executed, acknowledged
and delivered to Mortgagee, in form reasonably
satisfactory to Mortgagee, one or more separate
assignments (confirmatory of the general assignment
provided in this Article) of the lessor's interest in
any Lease, and shall pay to Mortgagee the reasonable
expenses incurred by Mortgagee in connection with the
preparation and recording of any such instrument, a as
provided in the Loan Agreement.
11.2 Ground Leases.
A. Mortgagor will not do or omit to do any act
or thing which could impair the security of this
Mortgage with respect to Mortgagor's leasehold estate
under the Ground Leases.
B. Mortgagor (i) shall comply with the
provisions of the Ground Leases, (ii) shall give
immediate written notice to Mortgagee of any default by
the lessor under the Ground Leases or of any notice
received by Mortgagor from such lessor of any default
under a Ground Lease by Mortgagor, (iii) shall give
immediate written notice to Mortgagee of the
commencement of any remedial proceedings under the
Ground Leases by any party thereto and, if required by
Mortgagee, shall permit Mortgagee as Mortgagor's
attorney-in-fact to control and act for Mortgagor in
any such remedial proceedings and (iv) shall within
thirty (30) days after reasonable request by Mortgagee
obtain from the lessor under the Ground Leases and
deliver to Mortgagee the lessor's estoppel certificate
required thereunder, if any. The Mortgagor hereby
expressly transfers and assigns to Mortgagee the
benefit of all covenants contained in the Ground
Leases, whether or not such covenants run with the
land, but Mortgagee shall have no liability with
respect to such covenants nor any other covenants
contained in the Ground Leases.
C. Mortgagor shall not surrender the leasehold
estate and interests herein conveyed nor terminate or
cancel the Ground Leases creating said estate and
interests, and the Mortgagor shall not, without the
express written consent of Mortgagee alter or amend any
Ground Lease. The Mortgagor agrees that there shall
not be a merger of the Ground Lease, or of the
leasehold estate created thereby, with the fee estate
covered by the Ground Lease by reason of the leasehold
estate or the fee estate, or any part of either, coming
into common ownership, unless Mortgagee shall consent
in writing to such merger. In the event Mortgagor
shall acquire fee title to all or any portion of such
Real Estate, this Mortgage shall further constitute a
mortgage with respect to such fee interest or estate of
Mortgagor in such Real Estate, upon the terms provided
for herein without any amendment to or modification of
this Mortgage being required. In such event,
notwithstanding the fact that the provisions hereof
shall be self-executing, Mortgagor agrees, immediately
upon the written request of Mortgagee, to execute any
amendment to this Mortgage or any additional mortgage
or other agreement or instrument with respect to said
Real Estate to further evidence and effect the
existence of a valid mortgage in favor of Mortgagee
with respect to Mortgagor's fee interest in all or any
portion of said Real Estate, the form and content of
any such amendment, mortgage or other instrument not
inconsistent with the terms of this Mortgage to be
approved by Mortgagee.
D. Mortgagee represents, covenants and warrants
that: (i) each Ground Lease is in full force and
effect and unmodified except as hereinbefore provided;
(ii) that all rents reserved in the Ground Leases have
been paid to the extent they were payable prior to the
date hereof; and (iii) that there is no existing
default under the provisions of the Ground Leases or in
the performance of the Ground Leases on the part of the
Mortgagor to be observed or performed.
12 Loan Document Expenses. Subject to the provisions of
Article 10 hereof, Mortgagor shall pay, together with any
interest or penalties imposed in connection therewith, all
reasonable expenses of Mortgagee incident to the preparation,
execution, acknowledgement, delivery and/or recording of this
Mortgage and the other Loan Documents, including, but without
limiting the generality of the foregoing, all filing,
registration and recording fees and charges, documentary stamps,
intangible taxes and all Federal, State, county and municipal
taxes, duties, imposts, assessments and charges now or hereafter
required by reason of, or in connection with, this Mortgage or
any other Loan Document.
13 Mortgagee's Right to Perform. In the event and for so long
as an Event of Default shall be continuing hereunder and upon
simultaneous notice to Mortgagor, Mortgagee may (but shall be
under no obligation to), at any time perform the Secured
Obligations, without waiving or releasing Mortgagor from any
Secured Obligations or any Event of Default under this Mortgage,
and, in such event, the reasonable cost thereof, including, but
without limiting the generality of the foregoing, reasonable
attorneys' fees, costs and disbursements incurred the connection
therewith (a) shall be deemed to be Secured Indebtedness, and (b)
shall be payable, promptly on demand, together with interest
thereon at the Interest Rate (except in the case of items under
clause (e) of Section 14 prior to any Event of Default), from the
date of any such payment by Mortgagee to the date of repayment to
Mortgagee. No payment or advance of money by Mortgagee pursuant
to the provisions of this Article shall cure, or shall be deemed
or construed to cure, any such Event of Default by Mortgagor
hereunder or waive any rights or remedies of Mortgagee hereunder
or at law or in equity by reason of any such Event of Default.
14 Mortgagee's Costs and Expenses. If (a) upon the occurrence
and during the continuance of any Event of Default, or (b)
Mortgagee shall exercise any of its rights or remedies hereunder,
or (c) any action or proceeding is commenced in which it becomes
necessary to defend or uphold the Lien or priority of this
Mortgage or any action or proceeding is Commenced to which
Mortgagee is or becomes a party, or (d) the taking, holding or
servicing of this Mortgage by Mortgagee is alleged to subject
Mortgagee to any civil or criminal fine or penalty, or (e)
Mortgagee's review and approval of any document, including, but
without limiting the generality of the foregoing, any Lease, is
requested by Mortgagor or required by Mortgagee, then, in any
such event, all actual reasonable costs, expenses and fees
incurred by Mortgagee in connection therewith (including, but
without limiting the generality of the foregoing, any civil or
criminal fines or penalties and reasonable attorneys' fees, costs
and disbursements) (i) shall be deemed to be Secured
Indebtedness, and (ii) shall be payable, promptly on demand,
together with interest thereon at the Interest Rate (except that
no interest shall be payable in the case of items incurred under
clause (e) of this paragraph prior to any Event of Default), from
the date of any such payment by Mortgagee to the date of
repayment to Mortgagee. In any action to foreclose this Mortgage
or to recover or collect the Secured Indebtedness or any portion
thereof, the provisions of this Article with respect to the
recovery of costs, expenses, disbursements and penalties shall
prevail unaffected by the provisions of any Legal Requirement
with respect to the same to the extent that the provisions of
this Article are not inconsistent therewith or violative thereof.
15 Defaults. The occurrence of any Event of Default (as defined
in the Loan Agreement) under the Loan Agreement (regardless of
the reason therefor), shall constitute a default ("Event of
Default") hereunder.
16 Remedies.
16.1 Upon the occurrence of any Event of Default hereunder,
Mortgagee may, without notice, presentment, demand or protest,
all of which are hereby expressly waived by Mortgagor to the
extent permitted by applicable law, take such action to protect
and enforce its rights in and to the Secured Property, including,
but without limiting the generality of the foregoing, the
following actions, each of which may be pursued concurrently or
otherwise, at such time and in such manner as Mortgagee may
determine, without impairing or otherwise affecting the other
rights and remedies of Mortgagee hereunder or at law or in
equity:
A. Mortgagee may declare the entire
amount of the Secured Indebtedness immediately due
and payable. Thereupon, all of the other Secured
Obligations also shall become immediately due and
payable.
B. Mortgagee may, without releasing
Mortgagor from any Secured Obligation or Secured
Indebtedness under this Mortgage or any other Loan
Document and without waiving any Event of Default,
exercise any of its rights and remedies under
Article 13 hereof.
C. Mortgagee may (w) institute and
maintain an action of mortgage foreclosure against
any of the Secured Property and against any of the
property subject to any of the Additional
Mortgages, (x) institute and maintain an action
with respect to the Secured Property under any
other Loan Document, or (y) take such other action
as may be allowed at law or in equity for the
enforcement of this Mortgage, the Additional
Mortgages and the other Lean Documents. Mortgagee
may proceed in any such action to final judgment
and execution thereon for the whole of the Secured
Indebtedness, together with interest thereon at
the Interest Rate, from the date on which
Mortgagee shall declare the same to be due and
payable to the date of repayment to Mortgagee, and
all costs of any such action, including, but
without limiting the generality of the foregoing,
reasonable attorneys' fees, costs and
disbursements.
D. Mortgagee may sell the Secured
Property at public outcry to the highest bidder
for cash in front of the courthouse door in the
county where the Secured Property is located,
either in person or by auctioneer, after having
first given notice of the time, place and terms of
sale by publication once a week for three (3)
successive weeks prior to said sale in some
newspaper published in said county. Upon payment
of the purchase money, the Mortgagee or any person
conducting the sale for the Mortgagee is
authorized to execute to the purchaser at said
sale an assignment of Mortgagor's leasehold estate
under any Ground Lease, or a deed to the Real
Estate if then owned in fee by Mortgagor. The
Mortgagee may bid at said sale and purchase said
property or any part thereof if the highest bidder
therefor. At any foreclosure sale the Secured
Property may be offered for sale and sold as a
whole without first offering it in any other
manner or may be offered for sale and sold in any
other manner the Mortgagee may elect in its sole
discretion.
E. Mortgagee may, without releasing
Mortgagor from any Secured Obligation or Secured
Indebtedness, and without waiving any Event of
Default, enter upon and take possession of the
Real Estate or any portion thereof, either
personally or by its agents, nominees or
attorneys, and dispossess Mortgagor and its agents
and servants therefrom and, thereupon, Mortgagee
may (x) subject to lease rights in favor of third
parties to the extent permitted by the Loan
Agreement, use, manage and operate the Real
Estate, and (y) exercise all rights and powers of
Mortgagor with respect to the Secured Property,
either in the name of Mortgagor or otherwise,
including, but without limiting the generality of
the foregoing, the right to make, cancel, enforce
or modify Leases, obtain and evict lessees. After
deduction of all actual costs and expenses of
operating and managing the Real Estate, including,
but without limiting the generality of the
foregoing, reasonable attorneys' fees, costs and
disbursements, administration expenses, management
fees and brokers' commissions, satisfaction of
Liens on any of the Secured Property, payment of
Impositions, claims and Insurance Premiums,
invoices of Persons who may have supplied goods
and services to or for the benefit of any of the
Secured Property and all costs and expenses of the
maintenance, repair, restoration, alteration or
improvement of any of the Secured Property,
Mortgagee shall apply the Rents received by
Mortgagee to payment of the Secured Indebtedness
or performance of the Secured Obligations.
Mortgagee shall apply the Rents received by
Mortgagee as provided in Section 16.2 hereof.
Mortgagee may, in its sole discretion, determine
the method by which, and extent to which, the
Rents will be collected and the obligations of the
lessees under the Leases enforced and Mortgagee
may waive or fail to enforce any right or remedy
of the lessor under any Lease.
16.2 In the case of a sale either pursuant to an order,
decree or judgment of foreclosure or by power-of-sale as herein
provided, the Real Estate may, at Mortgagee's election, be sold
in one (1) or more parcels. Mortgagee shall receive the proceeds
of any such sale and shall apply the proceeds of such sale as
follows, in the following order:
First, to all costs, fees, charges and expenses
recurred by Mortgagee and its counsel in connection with any
Event of Default hereunder, the exercise of any of the rights and
remedies of Mortgagee hereunder and any such sale, including,
without limitation, attorneys' fees, costs and disbursements, all
expenses of such sale, or pursuant to Section 4.2 hereof,
including publication costs, stenographic charges, title searches
and title insurance premiums, surveys, guarantee policies, and
transfer taxes and recording fees and charges;
Second, to the payment of all sums expended by
Mortgagee under the terms of this Mortgage and not yet repaid,
together with interest thereon at the Interest Rate.
Third, to the payment of the Term Loan Obligations,
including all accrued and unpaid interest due under the Loan
Agreement with respect to the Term Loan.
Fourth, to the payment of all other unpaid Secured
Obligations, whether due or to become due, in whatever order and
proportion to the Mortgagee may elect, in its sole discretion.
Fifth, the remainder, if any, to the Persons appearing
of record to be the owner of the Secured Property sold.
16.3 Mortgagor shall bear all expenses, including without
limitation reasonable attorneys' fees, costs and
disbursements, of or incidental to, enforcement of any provision
of this Mortgage or the Secured Indebtedness and for the
compromise, curing, defending or asserting any provision, right
or claim with respect thereto, by litigation or otherwise.
16.4 Mortgagee, in any action to enforce this Mortgage,
shall be entitled to the appointment of a receiver.
16.5 The remedies and rights granted to Mortgagee hereunder
are cumulative and are not in lieu of, but are in addition to,
and shall not be affected by the exercise of, any other remedy or
right available to Mortgagee whether now or hereafter existing
either at law or inequity or under this Mortgage or any other
Loan Document.
16.6 Except as otherwise provided herein, any sale of the
Secured Property pursuant to this Mortgage, without further
notice, shall create the relation of landlord and tenant at
sufferance between the Purchaser and Mortgagor or any Person
holding possession of the Real Estate through Mortgagor, and upon
failure of Mortgagor or such Person to surrender possession
thereof immediately, Mortgagor, or such Person may be removed by
an action for unlawful detainer by the purchaser, in any court
having venue.
16.7 Mortgagor shall indemnify and hold Mortgagee harmless
and defend it from any loss, liability, cost and expense
(including without limitation attorneys' fees and disbursements)
and all claims, actions, proceedings and suits arising out of, or
in connection with, any lawful action by Mortgagee to enforce
this Mortgage or any Loan Document, whether or not any action,
proceeding or suit is filed, except where such loss, liability,
cost, expense, claim, action, proceeding or suit is caused by or
resulting from the gross negligence or willful misconduct of
Mortgagee as determined by a court of competent jurisdiction in a
final non-appealable judgment or order, but in no event shall
Mortgagor be liable for any exemplary or punitive damages to the
extent permitted by applicable law.
17 Security Agreement under Uniform Commercial Code.
A. Mortgagor hereby grants to Mortgagee a
security interest in all of the Secured Property
(including, without limitation, the Fixtures) and in
Mortgagor's present and future "equipment" and "general
intangibles" as said quoted terms are defined in the
Uniform Commercial Code of the State of Alabama (the
"Code") and Mortgagee shall have, in addition to all
rights and remedies provided herein, and in any other
agreements made between Mortgagor and Mortgagee, all of
the rights and remedies of a "secured creditor" under
the Code. To the extent permitted under applicable
law, this Mortgage shall be deemed to be a "security
agreement" as defined in said Code.
B. Notwithstanding the filing of a financing
statement covering any of the mortgaged Property in the
records normally pertaining to personal property, all
of the Mortgaged Property, for all purposes and in all
proceedings, legal or equitable, shall be regarded, at
Mortgagee's option legal or equitable, shall be
regarded, at Mortgagee's option to the extent permitted
by law), as part of the Real Estate whether or not any
such item is physically attached to the Real Estate or
serial numbers are used for the better identification
of certain items. The mention in any such financing
statement of any item of the Mortgaged Property shall
not be construed as in any way derogating from or
impairing this declaration and hereby stated intention
of the parties. Pursuant to the provisions of the
Code, Mortgagor hereby authorizes Mortgagee, without
the signature of Mortgagor, to execute and file
financing and continuation statements if Mortgagee
shall determine in its sole discretion, that such are
necessary or advisable in order to perfect its security
interest in the Secured Property and Fixtures covered
by this Mortgage, and Mortgagor shall pay to Mortgagee,
upon demand, any reasonable expenses incurred by
Mortgagee in connection with the preparation,
execution, and filing of such statements that may be
filed by Mortgagee.
C. Certain of the Secured Property and Fixtures
are or may become fixtures related to the Real Estate,
and with respect thereto this Mortgage shall be
effective as a financing statement filed on a fixture
filing from the date of its filing in the real estate
records of the county wherein the Real Estate is
located. For purposes hereof, Mortgagor is the
"Debtor" and Mortgagee is the "Secured Party," and the
addresses of both are as set forth above. A
photographic or other reproduction of this Mortgage
shall be sufficient as a financing statement and may be
filed as a financing statement with any filing officer
as deemed necessary or desirable by Mortgagee.
Information concerning the security interest created by
this instrument may be obtained from the Mortgagee, as
Secured Party, at the address set forth above.
18 Additional Representations and Warranties. Mortgagor
represents and warrants that: (a) Mortgagor is qualified to do
business in the State in which the Secured Property is located;
(b) on the date hereof, no portion of the Buildings or the
Fixtures have been damaged, destroyed or injured by fire or other
casualty which is not now fully restored; (c) Mortgagor has all
necessary licenses, authorizations, registrations and approvals
to own, use, occupy and operate the Real Estate and has full
power and authority to carry on its business at the Real Estate
as currently conducted and has not received any notice of any
violation of any Legal Requirement; (d) as of the date hereof,
Mortgagor has not received any notice of any Taking of the
Secured Property or any portion thereof and Mortgagor has no
knowledge that any such Taking is contemplated; (e) Mortgagor is
a business and commercial organization, and the transaction
reflected in, and effectuated by, the Loan Documents is made
solely to acquire or to carry on business and commercial
enterprise; and (f) at the date hereof there are no Leases
affecting the Real Estate or any portion thereof, other than as
identified on Exhibit A.
19 No Waivers, Etc. A failure by Mortgagee to insist upon the
strict performance by Mortgagor of any of the terms and
provisions of this Mortgage shall not be deemed to be a waiver of
any of the terms, covenants, conditions and provisions hereof and
Mortgagee, notwithstanding any such failure, shall have the right
thereafter to insist upon the strict performance by Mortgagor of
any and all of the terms, covenants, conditions and provisions of
this Mortgage to be performed by Mortgagor. 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 Secured Property, any part of the security held for
payment of the Secured Indebtedness or any portion thereof or for
the performance of the Secured Obligations secured by this
Mortgage without, as to the remainder of the security, in any
manner whatsoever, impairing or affecting the Lien of this
Mortgage or the priority of the Lien of this Mortgage over any
subordinate Lien. Mortgagee may resort for the payment of the
Secured Indebtedness secured by this Mortgage to any other
security therefor held by Mortgagee in such order and manner as
Mortgagee may elect.
20 Additional Rights. Upon confirmation of a sale pursuant to
any order, decree or judgment of foreclosure of this Mortgage,
the appropriate governmental officer making such sale, or his
successor in office, shall be and is hereby authorized
immediately to execute and deliver to the purchaser at such sale,
a deed, assignment or appropriate document conveying the Secured
Property to such purchaser. To the extent allowed by applicable
law, upon the execution of such deed, assignment or appropriate
document, the recitals therein of facts such as the terms of the
sale, the sale, the purchase, payment of purchase money and other
facts affecting the regularity or validity of such sale shall,
absent manifest error, be conclusive proof of the truthfulness
thereof, that such sale was regularly and validly made, and any
such deed, assignment or appropriate document shall be conclusive
against all persons as to all matters and facts recited therein.
21 Waivers by Mortgagor.
21.1 To the extent allowed by applicable law, Mortgagor
hereby waives errors and imperfections in any proceedings
instituted by Mortgagee under this Mortgage, the Loan Agreement
or any other Loan Document and all benefit of any present or
future statute of limitations or any other present or future
statute, law, stay, moratorium, appraisal or valuation law,
regulation or judicial decision which, nor shall Mortgagor at any
time insist upon or plead, or in any manner whatsoever, claim or
take any benefit or advantage of any such statute, law, stay,
moratorium, regulation or judicial decision which (i) provides
for the valuation or appraisal of the Secured Property prior to
any sale or sales thereof which maybe made pursuant to any
provision herein or pursuant to any decree, judgment or order of
any court of competent jurisdiction, (ii) exempts any of the
Secured Property or any other property, real or personal, or any
part of the proceeds arising from any sale thereof, from
attachment, levy or sale under execution, (iii) provides for any
stay of execution, moratorium, marshalling of assets, exemption
from civil process, redemption or extension of time for payment,
(iv) requires Mortgagee to institute proceedings in mortgage
foreclosure against the Secured Property before exercising any
other remedy afforded Mortgagee hereunder in the event of an
Event of Default, (v) affects any of the terms, covenants,
conditions or provisions of this Mortgage, or (vi) conflicts with
or may affect, in a manner which may be adverse to Mortgagee, any
provision, covenant, condition or term of this Mortgage, the Loan
Agreement or any other Loan Document, nor shall Mortgagor at any
time alter any sale or sales of the Secured Property pursuant to
any provision herein, including, but without limiting the
generality of the foregoing, after any sale pursuant to a
judgment of foreclosure, claim or exercise any right under any
present or future statute, law, stay, moratorium, regulation or
judicial decision to redeem the Secured Property or the portion
thereof so sold.
21.2 To the extent allowed by applicable law, Mortgagor
hereby waives the right, if any, to require any sale to be made
in parcels, or the right, if any, to select parcels to be sold,
and there shall be no requirement for marshalling of assets.
22 Not Joint Venture or Partnership. Mortgagor and Mortgagee
intend that the relationship created hereunder be solely that of
mortgagor and mortgagee or borrower and lender, as the case may
be. Nothing herein is intended to create a joint venture,
partnership, tenancy-in-common, or joint tenancy relationship
between Mortgagor and Mortgagee nor to grant Mortgagee any
interest in the Secured Property other than that of mortgagee or
lender.
23 Notices. Whenever it is provided herein that any notice,
demand, request, consent, approval, declaration or other
communication shall or may be given to or served upon either
Mortgagor or Mortgagee, or whenever either Mortgagor or Mortgagee
shall desire to give or serve upon the other any such
communication with respect to this Mortgage or the Secured
Property, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and shall
be delivered in the manner and at the addresses of the parties
set forth in the Loan Agreement.
24 Inconsistency with the Loan Documents. Unless this Mortgage
expressly provides otherwise, if there shall be any
inconsistencies between the terms, covenants, conditions and
provisions set forth in this Mortgage and the terms, covenants,
conditions and provisions set forth in the Loan Agreement, then
the terms, covenants, conditions and provisions of the Loan
Agreement shall prevail.
25 No Modification: Binding Obligations. This Mortgage may not
be modified, amended, discharged or waived in whole or in part
except by an agreement in writing signed by Mortgagor and
Mortgagee. The covenants of this Mortgage shall run with the Land
and shall bind Mortgagor and the heirs, distributees, personal
representatives, successors and assigns of Mortgagor and all
present and subsequent encumbrances, lessees and subleases of any
of the Secured Property and shall inure to the benefit of
Mortgagee and its respective successors, permitted assigns and
endorsees.
26 Miscellaneous. The Article headings in this Mortgage are
used only for convenience and are not part of this Mortgage and
are not to be used in determining the intent of the parties or
otherwise in interpreting this Mortgage. As used in this
Mortgage, the singular shall include the plural as the context
requires and the following words and phrases shall have the
following meanings: (a) "provisions" shall mean "provisions,
terms, covenants and/or conditions"; (b) "obligation" shall mean
"obligation, duty, covenant and/or condition"; (c) "any of the
Secured Property" shall mean "the Secured Property or any portion
thereof or interest therein"; and (d) "Person" shall have the
meaning ascribed thereto in the Loan Agreement. Any act which
Mortgagee is permitted to perform under this Mortgage, the Loan
Agreement or any other Loan Document may be performed at any time
and from time to time by Mortgagee or by any Person or entity
designated by Mortgagee. Any act which is prohibited to Mortgagor
under this Mortgage, the Loan Agreement or any other Loan
Document is also prohibited to all lessees of any of the Secured
Property. Each appointment of Mortgagee as attorney-in-fact for
Mortgagor under this Mortgage, the Loan Agreement or any other
Loan Document shall be irrevocable and coupled with an interest.
27 Enforceability. This Mortgage shall be governed by, and
construed in accordance with, the laws of the State in which the
Secured Property is located without regard to principles of
conflicts of laws, except that the laws of the State of
California shall govern the resolution of issues arising under
the Loan Agreement to the extent that such resolution is
necessary to the interpretation of this Mortgage. Whenever
possible, each provision of this Mortgage shall be interpreted in
such manner as to be effective and valid under applicable law,
but if any provision of this Mortgage shall be prohibited by or
invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without
invalidating the remaining provisions of this Mortgage. Nothing
in this Mortgage or in any other Loan Documents shall require
Mortgagor to pay, or Mortgagee to accept, interest in an amount
which would subject Mortgagee to penalty under applicable law. In
the event that the payment of any interest due hereunder or under
any of the other Loan Documents or a payment which is deemed
interest, exceeds the maximum amount payable as interest under
the applicable usury laws, such excess amount shall be applied to
the reduction of the Secured Indebtedness, and upon payment in
full of the Secured Indebtedness, shall be applied to the
performance of the Secured Obligations, and upon performance in
full of the Secured Obligations, shall be deemed to be a payment
made by mistake and shall be refunded to Mortgagor.
28 Receipt of Copy. Mortgagor acknowledges that it has received
a true copy of this Mortgage.
29 Termination of Security Interest. This Mortgage, and the
security interests created or granted hereby shall automatically
terminate and be of no further force and effect on the earlier of
(a) the date on which (i) all Secured Obligations, accrued or
matured interest and fees, and other accrued and payable monetary
Secured Obligations have been paid (subject to reinstatement in
accordance with the Loan Agreement), and (ii) the termination,
payment in full or cash collateralization of all outstanding
Letters of Credit (as defined in the Loan Agreement) in full to
the reasonable satisfaction of the Mortgagee, at which time
Mortgagee (without recourse upon, or any warranty whatsoever by,
Mortgagee) shall execute and deliver to Mortgagor, for recording
in each office in which this Mortgage shall have been recorded,
an instrument releasing this Mortgage and such other documents
and instruments necessary to terminate any security interest of
Mortgagee granted hereby as Mortgagor may reasonably request, all
without recourse upon, or warranty whatsoever by, Mortgagee,
except that the same shall be free and clear of any claims, Liens
or encumbrances created by or in respect of Mortgagee, and at the
cost and expense of Mortgagor.
29.1 MORTGAGOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY.
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be
duly executed and acknowledged under seal the day and year first
above written.
INTERGRAPH CORPORATION,
Mortgagor
By:
Name: /s/ Xxxxx X. Xxxxxx
----------------------
Title: EVP
------------------
STATE OF _______________ )
COUNTY OF ______________ )
I, the undersigned Notary Public in and for said County, in
said State, hereby certify that ____________________, whose name
as _______________ of Intergraph Corporation, a Delaware
corporation, is signed to the foregoing instrument and who is
known to me, acknowledged before me on this day that, being
informed of the contents of said instrument, _____ as such
officer and with full authority, executed the same voluntarily
for and as the act of said corporation on the day the same bears
date.
Given under my hand and official seal, this _____ day of
_______________, 1997.
______________________________
Notary Public
My Commission Expires:
______________________________
EXHIBIT "A"
TRACT I
-------
(Foothill)
All that part of Sections 21, 27, 28 and 33, Township 4 South,
Range 0 Xxxx xx xxx Xxxxxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx.
Particularly described as beginning at a concrete monument at the
center of the East boundary of Xxxxxxx 00, Xxxxxxxx 0 Xxxxx,
Xxxxx 0 Xxxx; thence from the point of true beginning, South 01
degrees 24 minutes 39 seconds West 2657.77 feet to a concrete
monument at the Southeast corner of said Section 21; thence South
01 degree 31 minutes 20 seconds West, 1204.68 feet to a concrete
monument; thence South 88 degrees 46 minutes 04 seconds East,
1259.91 feet to a concrete monument; thence South 18 degrees 56
minutes 51 seconds East, 140.57 feet to a concrete monument;
thence South 88 degrees 25 minutes 56 seconds East, 2.83 feet to
a concrete monument at the Northeast corner of the Southwest
Quarter of the Northwest Quarter of Xxxxxxx 00, Xxxxxxxx 0 Xxxxx,
Xxxxx 0 Xxxx; thence along the East boundary of said Quarter-
Quarter Section, South 01 degrees 51 minutes 00 seconds West,
1329.29 feet to a concrete monument at the Southeast corner of
the Southwest Quarter of the Northwest Quarter of said Section
27; thence along the Quarter-Section line, South 88 degrees 24
minutes 49 seconds East, 2132.29 feet to a concrete monument at
the Northwest corner of a Huntsville Utilities lot; thence along
the west boundary of said lot, South 01 degrees 35 minutes 11
seconds West, 250.00 feet to a concrete monument; thence South 88
degrees 24 minutes 49 seconds East, 230.00 feet to a concrete
monument; thence North 1 degrees 35 minutes 11 seconds East,
250.00 feet to a concrete monument on the Quarter Section line;
thence along the Quarter-Section line, South 88 degrees 24
minutes 49 seconds East, 1515.51 feet to a concrete monument on
the Westerly margin of Xxxxxx Road; thence along the westerly
margin of Xxxxxx Road, South 02 degrees 17 minutes 01 seconds
West, 1760.18 feet to a concrete monument at the Northeast corner
of the University of Alabama-Huntsville Property; thence along
the North boundary of said property, North 88 degrees 19 minutes
37 seconds West, 1901.00 feet to a concrete monument; thence
South 02 degrees 17 minutes 01 seconds West, 900.00 feet to a
concrete monument on the South boundary of Xxxxxxx 00, Xxxxxxxx 0
Xxxxx, Xxxxx 0 Xxxx; thence along the South boundary of said
Section 27, North 88 degrees 19 minutes 37 seconds West, 3245.75
feet to an unmonumented Southwest corner of Section 27, Southeast
corner Section 28, Northeast Corner of Section 33 and Northwest
corner of Section 34 all in Township 4 South, Range 2 West;
thence along the Easterly boundary of Section 33, South 03
degrees 31 minutes 04 seconds West 1330.88 feet to a concrete
monument at the center of the Easterly boundary of Section 33,
South 03 degrees 31 minutes 04 seconds West 1330.88 feet to a
concrete monument at the center of the East boundary of the
Northeast Quarter of said Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 0
Xxxx; thence along the South boundary of the North one-half of
the Northeast Quarter of Section 33, North 88 degrees 52 minutes
27 seconds West, 2121.77 feet to a concrete monument; thence
North 2 degrees 15 minutes 55 seconds East, 79.92 feet to a
concrete monument; thence North 85 degrees 29 minutes 04 seconds
West, 550.00 feet to a concrete monument on the Westerly margin
of Old Xxx Xxxxxxxx Road; thence North 02 degrees 15 minutes 55
seconds East 614.78 feet to a point; thence continuing along the
Westerly margin of said road, around a curve to the left, with a
radius of 846.72 feet and a chord bearing and distance of North
05 degrees 10 minutes 18 seconds East, 219.21 feet to a concrete
monument on the North-South Quarter Section line of said Section
33; thence along the Quarter-Section line, North 02 degrees 23
minutes 03 seconds East, 383.29 feet to a concrete monument at
the center of the North boundary of Section 33; thence along the
North boundary of said Section 33, South 88 degrees 54 minutes 24
seconds East, 2728.16 feet to the unmonumented Northeast corner
of Section 33, Northwest corner of Section 34, Southeast corner
of Section 28 and the Southwest corner of Section 27; thence from
the Southwest corner of Section 27, North 01 degrees 31 minutes
20 seconds East, 2652.19 feet to a concrete monument at the
center of the East boundary of Section 28; thence along the
Quarter Section line of said Section 28, North 88 degrees 53
minutes 06 seconds West 970.05 feet to a concrete monument at the
Southeast corner of a Huntsville Utilities Lot; thence along the
East boundary of said lot, North 01 degrees 47 minutes 39
seconds East 225.00 feet to a concrete monument at the Northeast
corner of said lot; thence along the North boundary of the
Huntsville Utilities lot, North 88 degrees 53 minutes 06 seconds
West, 387.22 feet to a concrete monument on the North-South
Quarter-Quarter Section line; thence North 01 degrees 47 minutes
39 seconds East, along said Quarter-Quarter Section line, 803.83
feet to a concrete monument at the intersection of said Quarter-
Quarter Section line with the centerline of Dunlop Boulevard;
thence continuing North 01 degrees 47 minutes 39 seconds East
along said Quarter-Quarter line 60.00 feet to a concrete monument
on the North margin of Dunlop Boulevard; thence along the North
margin of Xxxxxx Xxxxxxxxx, Xxxxx 00 degrees 01 minutes 20
seconds West, 10.00 feet to a concrete monument at
TRACT I (Continued)
-------------------
(Foothill)
the intersection of the Northerly margin of Dunlop Boulevard with
the Easterly margin of the Southern Railway Systems Right-of-way;
thence along the Easterly margin of said railway right-of-way,
North 01 degrees 47 minutes 39 seconds East, 1569.13 feet to an
iron stake on the South boundary of Section 21; thence along said
boundary North 88 degrees 54 minutes 55 seconds West, 1.00 feet
to an iron stake; thence North 43 degrees 33 minutes 26 seconds
West, 5.62 feet to an iron stake; thence North 01 degrees 53
minutes 36 seconds East, 39.65 feet to an iron stake and the P.C.
of a curve to the left; thence around said curve with a radius of
1180.00 feet and a chord bearing and distance of North 12 degrees
25 minutes 34 seconds West, 583.27 feet to an iron stake at the
point of tangency; thence North 26 degrees 43 minutes 33 seconds
West, 1927.34 feet to a concrete monument at the intersection of
the Easterly margin of the Southern Railway right-of-way with the
Southerly margin of Lime Quarry Road right-of-way; thence along
the Southerly margin of said road right-of-way North 64 degrees
04 minutes 39 seconds East, 447.53 feet to a concrete monument;
thence continuing along said right-of-way, North 83 degrees 24
minutes 23 seconds East, 219.35 feet to a concrete monument;
thence continuing along said right-of-way, South 87 degrees 57
minutes 53 seconds East, 248.49 feet to a concrete monument;
thence continuing along said right-of-way, North 51 degrees 55
minutes 25 seconds East, 130.76 feet to a concrete monument;
thence North 02 degrees 02 minutes 07 seconds East, 50.00 feet to
a concrete monument on the East-West Quarter Section line of
Section 21, Township 4 South, Range 2 West, and the termination
of Lime Quarry Road Right-of-way; thence South 88 degrees 08
minutes 47 seconds East, along said Quarter Section line, 1442.99
feet to the point of true beginning and containing 591.495 acres,
more or less.
TRACT II:
---------
(Foothill)
All that part of the South one-half of Section 21 and the North
one-half of Section 28, Township 4 South, Range 0 Xxxx xx xxx
Xxxxxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx.
Particularly described as beginning at a concrete monument at the
intersection of the Southerly margin of Lime Quarry Road with the
Westerly margin of the Southern Railway Systems right-of-way;
said point of true beginning is further described as being North
88 degrees 08 minutes 47 seconds West 1442.99 feet, South 02
degrees 02 minutes 07 seconds West, 50.00 feet, South 51 degrees
55 minutes 25 seconds West, 130.76 feet, North 87 degrees 57
minutes 53 seconds West, 248.49 feet, South 83 degrees 24 minutes
23 seconds West, 219.35 feet and South 64 degrees 04 minutes 39
seconds West, 517.53 feet from the center of the East boundary of
Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 0 Xxxx; thence from the point
of true beginning, South 26 degrees 43 minutes 33 seconds East,
along the Westerly margin of the Southern Railway right-of-way,
1928.33 feet to an iron stake at the P.C. of a curve to the
right; thence around said curve to the right, with a radius of
1110.00 feet and a chord bearing and distance of South 12 degrees
25 minutes 34 seconds East, 548.67 feet to an iron stake at the
point of tangency; thence South 01 degrees 53 minutes 36 seconds
West, 44.63 feet to an iron stake on the South boundary line of
Section 21; thence along said boundary line, North 88 degrees 54
minutes 55 seconds West, 5.00 feet to an iron stake; thence South
01 degrees 47 minutes 39 seconds West, along the westerly margin
of the Southern Railway right-of-way, 1569.27 feet to a concrete
monument at the intersection of the North margin of Dunlop
Boulevard with the West margin of the Southern Railway right-of-
way; thence along the North margin of Xxxxxx Xxxxxxxxx, Xxxxx 00
degrees 01 minutes 20 seconds West, 1455.77 feet to a concrete
monument; thence North 02 degrees 14 minutes 47 seconds East,
402.10 feet to a concrete monument; thence North 88 degrees 56
minutes 13 seconds West, 436.00 feet to a concrete monument;
thence North 02 degrees 14 minutes 47 seconds East, 400.00 feet
to a concrete monument on the South margin of Xxxxxxx Road Right-
of-way; thence along the South margin of said road, South 88
degrees 56 minutes 13 seconds East, 633.47 feet to a concrete
monument; thence North 01 degrees 03 minutes 47 seconds East,
70.00 feet to a concrete monument on the North margin of Xxxxxxx
Road; thence continuing North 01 degrees 03 minutes 47 seconds
East 699.86 feet to a concrete monument on the South boundary of
Section 21; thence along the South boundary of said Section 21,
North 88 degrees 56 minutes 13 seconds West, 425.00 feet to a
concrete monument; thence South 01 degrees 03 minutes 47 seconds
West, 699.86 feet to a concrete monument on the North margin of
Xxxxxxx Road; thence along the North margin of Xxxxxxx Road,
North 88 degrees 56 minutes 13 seconds West, 986.53 feet to a
concrete monument ; thence North 02 degrees 14 minutes 45 seconds
East, 175.08 feet to a concrete monument at the P.C. of a curve
to the right; thence around said curve to the right with a radius
of 503.295 feet and a chord bearing and distance of North 34
degrees 27 minutes 28 seconds East, 536.60 feet to a concrete
monument at the P.T. of the curve; thence North 02 degrees 14
minutes 46 seconds East, 76.81 feet to a concrete monument on the
South boundary of Section 21; thence along the South boundary of
said Section 21, North 88 degrees 56 minutes 13 seconds West,
1434.36 feet to a concrete monument at the intersection of the
South boundary of Section 21 with the East margin of the Wall-
Triana East Bound Ramp - Right-of-Way to Interstate Highway I-
565; thence along said right-of-way line, North 00 degrees 48
minutes 05 seconds East, 687.98 feet to a concrete monument;
thence continuing along said ramp right-of-way, North 46 degrees
22 minutes 04 seconds East, 1198.33 feet to a concrete monument
on the Southerly right-of-way of I-565; thence continuing along
said I-565 southerly right-of-way, North 65 degrees 14 minutes 22
seconds East, 1050.10 feet to a concrete monument; thence
continuing along said right-of-way line, North 64 degrees 27
minutes 16 seconds East, 113.00 feet to a concrete monument;
thence continuing along said right-of-way South 30 degrees 04
minutes 26 seconds East 244.93 feet to a concrete monument;
thence continuing along said right-of-way, North 32 degrees 00
minutes 09 seconds East, 80.99 feet to a concrete monument;
thence continuing along said right-of-way, North 55 degrees 22
minutes 38 seconds East, 28.53 feet to a concrete monument;
thence continuing along said right-of-way, North 30 degrees 04
minutes 26 seconds West, 196.83 feet to a concrete monument;
thence continuing along said right-of-way, North 64 degrees 27
minutes 16 seconds East, 810.29 feet to a concrete monument at
the intersection of I-565 southerly right-of-way with the
Westerly margin of Southern Railway Systems Right-of-way; thence
along the Westerly margin of the Southern Railway right-of-way
around a curve to the left, with a radius of 1467.692 feet and a
chord bearing and distance of South 23 degrees 41 minutes 00
seconds East, 155.50 feet to a concrete monument; thence along
said railway right-of-way, South 26 degrees 43 minutes 33 seconds
East, 24.69 feet to the point of beginning and containing 208.150
acres, more or less.
TRACT II (Continued)
--------------------
(Foothill)
LESS AND EXCEPT that certain property located in the Southwest
Quarter of Section 21, Township 4 South, Range 2 West, Madison
County, Alabama more particularly described as follows:
Commencing at a point that is South 87 degrees 30 minutes West
146.17 feet; thence North 2 degrees 47 minutes 20 seconds West
688.41 feet; thence North 42 degrees 46 minutes 39 seconds East
1,198.30 feet and North 61 degrees 38 minutes 54 seconds East
153.58 feet from the Southwest corner of Section 21, Township 4
South, Range 2 West, said point being the true point of
beginning;
thence from the point of true beginning North 61 degrees 38
minutes 54 seconds East 216.26 feet to a point; thence South 01
degree 33 minutes 06 seconds East 98.12 feet to a point; thence
South 88 degrees 37 minutes 54 seconds West 193.03 feet to the
point of beginning.
PROVIDED, HOWEVER, THAT WITH RESPECT TO THE PARCELS OF TRACT II
DESCRIBED BELOW THE INTEREST OF THE MORTGAGOR IS AS LESSEE UNDER
THE FOLLOWING DESCRIBED LEASES AND WITH RESPECT TO THE PROPERTY
DESCRIBED BELOW FOR EACH SUCH LEASE, AND WITH RESPECT TO SUCH
PROPERTIES THE MORTGAGE SHALL BE A LEASEHOLD MORTGAGE:
1. INTERGRAPH CORPORATION'S RIGHTS UNDER THAT CERTAIN
LEASE AGREEMENT BETWEEN THE INDUSTRIAL DEVELOPMENT
BOARD OF THE CITY OF MADISON, INC. AND XXXXXXXX-ALABAMA
CORPORATION DATED JUNE 12, 1973 AND RECORDED IN DEED
BOOK 479, PAGE 19, JUDGE OF PROBATE, AND AS ASSIGNED TO
WELBILT CORPORATION PURSUANT TO MEMORANDUM OF
ASSIGNMENT OF LESSEE'S INTEREST IN LEASE DATED OCTOBER
21, 1982 AND RECORDED IN DEED BOOK 607, PAGE 37, AND AS
ASSIGNED TO INTERGRAPH CORPORATION PURSUANT TO THAT
CERTAIN ASSIGNMENT OF ASSUMPTION OF LEASE DATED
NOVEMBER 1, 1983, RECORDED IN DEED BOOK 624, PAGE 113,
IN THE OFFICE OF THE JUDGE OF PROBATE, MADISON COUNTY,
ALABAMA AND COVERING THE FOLLOWING DESCRIBED REAL
PROPERTY:
All that part of the South one-half of Section 21,
Township 4 South, Range 0 Xxxx xx xxx Xxxxxxxxxx
Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx. Particularly
described as beginning at a concrete monument on the
East margin of the Xxxxxxx-Xxxxxx Road and at the
Northwest corner of the U.S. Corrugated Fibre Box
Company site, said point of true beginning is further
described as being North 87 degrees 30 minutes east,
50.0 feet from the Southwest corner of Section 21,
Township 4 South, Range 2 west. Thence from the point
of true beginning, along the East margin of the Xxxxxxx-
Xxxxxx Xxxx, Xxxxx 00 degrees 22 minutes 06 seconds
West 900 feet to a point; thence North 87 degrees 30
minutes East, 2418.17 feet to a point in the center of
a drainage ditch; thence South 01 degrees 15 minutes 57
seconds East 950.34 feet to a concrete monument in the
center of said drainage ditch and on the projected
North boundary of the U.S. Corrugated Fibre Box Company
site; thence South 87 degrees 30 minutes West, along
the projected and North boundary of said U.S.
Corrugated Fibre Box Company site 2741.67 feet to the
point of true beginning and containing 53.29 acres,
more or less.
AND ALSO
--------
2. INTERGRAPH CORPORATION'S RIGHTS UNDER THAT CERTAIN
LEASE AGREEMENT BETWEEN THE INDUSTRIAL DEVELOPMENT
BOARD OF THE CITY OF HUNTSVILLE AND INTERGRAPH
CORPORATION DATED AS OF MAY 1, 1983 AND AS OF RECORD IN
DEED BOOK 616, PAGE 809, IN THE OFFICE OF THE JUDGE OF
PROBATE OF MADISON COUNTY, ALABAMA AND COVERING THE
FOLLOWING DESCRIBED PROPERTY:
TRACT II (Continued)
--------------------
(Foothill)
2. (Continued)
All that part of the northeast quarter of Section 28,
Township 4 South, Range 0 Xxxx xx xxx Xxxxxxxxxx
Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx.
Particularly described as beginning at an iron stake at
the northwest corner of the tract herein described;
said point of true beginning is further described as
being North 87 degrees 30 minutes East, 2691.67 feet
from the Northwest corner of Section 28, Township 4
South, Range 2 West. Thence from the point of true
beginning North 87 degrees 30 minutes 52 seconds East,
1261.66 feet to an iron stake on the west margin of the
80.00 foot Southern Railway Company Right-of-Way;
thence along the margin of said Right-of-way, South 01
degree 48 minutes 36 seconds East, 1569.25 feet to an
iron stake on the north margin of the 120.00 foot Right-
of-Way for Dunlop Boulevard; thence along the north
margin of said Right-of-way, South 87 degrees 24
minutes 30 seconds West 444.86 feet to an iron stake;
thence North 2 degrees 35 minutes 30 seconds West,
100.00 feet to the P.C. of a curve to the left; thence
around said curve, having a radius of 672.63 feet, with
a chord bearing and distance of North 25 degrees 33
minutes 59 seconds West, 525.09 feet to the P.T. of
said curve; thence North 48 degrees 32 minutes 27
seconds West, 27.03 feet to the P.C. of a curve to the
left; thence around said curve, having a radius of
708.29 feet, with a chord bearing and distance of North
70 degrees 31 minutes 14 seconds West, 530.19 feet to
the P.T. of said curve; thence South 87 degrees 30
minutes West, 80.77 feet to a point on the south margin
of the 70.00 foot Right-of-Way for Xxxxxxx Road; thence
North 2 degrees 30 minutes West, 70.00 feet to an iron
stake on the north margin of the Right-of-way for
Xxxxxxx Road and the southeast corner of the Xxxxxx
Pine Xxxxx property; thence along the east boundary of
said Xxxxxx Pine Xxxxx site, North 2 degrees 30 minutes
West, 699.85 feet to the point of true beginning and
containing 33.00 acres, more or less.
TOGETHER WITH:
All that part of the northeast quarter of Section 28,
Township 4 South, Range 0 Xxxx xx xxx Xxxxxxxxxx
Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx.
Particularly described as beginning at an iron stake on
the east margin of the 80.00 foot Southern Railway
Company Right-of-way; said point of true beginning is
further described as being North 87 degrees 30 minutes
East, 4033.33 feet from the northwest corner of Section
28, Township 4 South, Range 2 West.
Thence from the point of true beginning North 87
degrees 30 minutes 52 seconds East, 10.00 feet to a
concrete monument at the center of the north boundary
of the northeast quarter of Xxxxxxx 00, Xxxxxxxx 0
Xxxxx, Xxxxx 0 Xxxx; thence along the quarter-quarter
section line, South 01 degree 48 minutes 36 seconds
East, 1569.08 feet to an iron stake on the north margin
of the 120.00 foot Right-of-way for Dunlop Boulevard;
thence along the north margin of said Right-of-way
South 87 degrees 24 minutes 30 seconds West, 10.00 feet
to an iron stake on the east margin of the 80.00 foot
Southern Railroad Company Right-of-way; thence along
the east margin of said Right-of-way, North 01 degrees
48 minutes 36 seconds West, 1569.10 feet to the point
of true beginning and containing 0.36 acres more or
less.
TRACT III:
----------
(Foothill)
INTERGRAPH CORPORATION'S RIGHTS UNDER THAT CERTAIN LEASE
AGREEMENT BETWEEN THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF
HUNTSVILLE AND THE H. D. XXX COMPANY, INC. DATED SEPTEMBER 1,
1973 AND RECORDED IN DEED BOOK 484, PAGE 437, JUDGE OF PROBATE,
AND AS ASSIGNED FROM THE H.D.XXX COMPANY, INC. TO THE XXX APPAREL
COMPANY, INC. DATED FEBRUARY 14, 1983 AND RECORDED IN MORTGAGE
BOOK 1459, PAGE 264, JUDGE OF PROBATE, AND ASSIGNED AND ASSUMED
BY INTERGRAPH CORPORATION BY THAT CERTAIN ASSIGNMENT AND
ASSUMPTION OF LEASE DATED NOVEMBER 14, 1986 AND RECORDED IN
MORTGAGE BOOK 1459, PAGE 267, JUDGE OF PROBATE AND COVERING THE
FOLLOWING DESCRIBED REAL PROPERTY:
All that part of the Southwest Quarter of Section 28, Township 4
South, Range 0 Xxxx xx xxx Xxxxxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxx,
Xxxxxxx.
Particularly described as beginning at a concrete monument at the
intersection of the North margin of the 70.00 foot right-of-way
for the old Xxx Xxxxxxxx Road, with the Easterly margin of the
right-of-way for Xxxxxx Road; said point of true beginning is
described as being North 02 degrees 15 minutes 24 seconds East,
70.03 feet and North 86 degrees 01 minutes 06 seconds East, 47.15
feet from the Southwest corner of Section 28, Township 4 South,
Range 2 West; thence from the point of true beginning, along the
Easterly margin of Xxxxxx Road around a curve to the right,
having a radius of 2980.71 feet and a chord bearing and distance
of North 00 degrees 19 minutes 42 seconds West, 268.82 feet to a
concrete monument at the P.T. of the curve; thence continuing
along the Easterly margin of Xxxxxx Road, North 02 degrees 15
minutes 24 seconds East, 412.83 feet to a concrete monument at
the intersection of the Easterly margin of said Xxxxxx Road with
the Southerly margin of Xxxxxxx Road; thence along said Southerly
margin of Xxxxxxx Road, North 48 degrees 02 minutes 50 seconds
East, 132.49 feet to a concrete monument on the South margin of a
120.00 foot right-of-way for Xxxxxxx Road; thence South 89
degrees 10 minutes 36 seconds East, along the South margin of
Xxxxxxx Road; 1070.20 feet to a concrete monument; thence South
25 degrees 34 minutes 36 seconds East, 884.12 feet to a concrete
monument on the North margin of Old Xxx Xxxxxxxx Road; thence
along the North margin of Old Xxx Xxxxxxxx Road, North 89 degrees
05 minutes 25 seconds West, 1013.28 feet to a concrete monument
at the P.C. of a curve to the right; thence continuing along the
North margin of Old Xxx Xxxxxxxx Road, around said curve to the
right, having a radius of 2931.22 feet and a chord bearing and
distance of North 86 degrees 46 minutes 31 seconds West, 236.97
feet to a concrete monument at the point of a reverse curve;
thence continuing along the North margin of said road, around a
curve to the left, having a radius of 2777.05 feet, and a chord
bearing and distance of North 86 degrees 57 minutes 43 seconds
West, 242.83 feet to a concrete monument at the P.T. of the
curve; thence continuing along the North margin of said road,
North 89 degrees 28 minutes 22 seconds West, 72.80 feet to the
point of true beginning and containing 24.629 acres, more or
less.
TRACT IV:
---------
(Foothill)
All that part of Madison Industrial Park as recorded in Plat Book
6, Page 21, Probate Records of Madison County, Alabama, and
further described as being a part of the Southwest Quarter of
Section 15, Township 4 South, Range 0 Xxxx xx xxx Xxxxxxxxxx
Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx.
Particularly described as beginning at a concrete monument on the
Easterly boundary of Research Boulevard; said point of true
beginning is further described as being North 01 degrees 57
minutes 26 seconds East, 1538.11 feet and South 64 degrees 35
minutes 25 seconds West, 955.28 feet from the Southeast corner of
the Southwest Quarter of Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 0
Xxxx; thence from the point of true beginning North 25 degrees
24 minutes 35 seconds West, 300.00 feet to a concrete monument at
the intersection of a ninety degree corner of Research Boulevard;
thence along the Southerly margin of said Xxxxxxxxx Xxxxx 00
degrees 35 minutes 25 seconds East, 561.92 feet to a concrete
monument at the P.C. of a curve to the left; thence around said
curve to the left with a radius of 160.00 feet and a chord
bearing and distance of 18.92 feet to a concrete monument at a
point on the curve; thence continuing around said curve and along
the Easterly margin of Research Boulevard, with a radius of
160.00 feet and a chord bearing and distance of North 29 degrees
52 minutes 50 seconds East, 149.86 feet to a concrete monument at
the P.T. of the curve; thence South 88 degrees 02 minutes 34
seconds East, 164.01 feet to a concrete monument; thence South 01
degrees 57 minutes 26 seconds West, 181.36 feet to a concrete
monument; thence South 64 degrees 35 minutes 25 seconds West,
185.49 feet to a concrete monument; thence South 25 degrees 24
minutes 35 seconds East, 150.01 feet to a concrete monument;
thence South 64 degrees 35 minutes 25 seconds West, 580.80 feet
to the point of beginning and containing 5.00 acres, more or
less.
TRACT V:
--------
(Foothill)
INTERGRAPH CORPORATION'S RIGHTS UNDER THAT CERTAIN LEASE
AGREEMENT BETWEEN THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF
MADISON, INC. AND INTERGRAPH CORPORATION DATED AS OF SEPTEMBER 1,
1982 AND AS OF RECORD IN DEED BOOK 609, PAGE 636 OF THE JUDGE OF
PROBATE AND COVERING THE FOLLOWING DESCRIBED REAL PROPERTY:
All that part of Madison Industrial Park as recorded in Plat Book
6, Page 21, Probate Records of Madison County, Alabama, and
further described as being a part of the Southwest Quarter of
Section 15, Township 4 South, Range 0 Xxxx xx xxx Xxxxxxxxxx
Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx.
Particularly described as beginning at a concrete monument on the
Westerly Boundary of Research Boulevard; said point of true
beginning is further described as being North 01 degrees 57
minutes 26 seconds East 1765.79 feet and North 88 degrees 02
minutes 34 seconds West, 460.80 feet to a concrete monument at
the P.C. of a curve on the Westerly margin of Research Boulevard;
thence along the Westerly margin of said Boulevard, around a
curve to the right, with a radius of 90.00 feet and chord bearing
and distance of South 33 degrees 16 minutes 33 seconds West,
103.95 feet to a concrete monument at the P.T. of the curve;
thence continuing along the Northerly margin of Research
Boulevard, South 64 degrees 35 minutes 25 seconds West, 741.94
feet to a concrete monument at the P.C. of a curve to the right;
thence around said curve to the right with a radius of 25.00 feet
and a chord bearing and distance of North 70 degrees 24 minutes
06 seconds West, 35.36 feet to a concrete monument at the P.T. of
the curve; thence North 25 degrees 24 minutes 38 seconds West,
123.48 feet to a concrete monument at the P.C. of a curve to the
right; thence around said curve to the right, and continuing
along the Easterly margin of Research Boulevard with a radius of
176.84 feet and a chord bearing and distance of North 11 degrees
49 minutes 25 seconds West, 83.11 feet to a concrete monument at
the P.T. of the curve; thence continuing along the Easterly
margin of Research Boulevard, North 01 degrees 45 minutes 35
seconds East, 584.53 feet to a concrete monument at the P.C. of a
curve to the right; thence around said curve to the right, with a
radius of 100.00 feet and a chord bearing and distance of North
46 degrees 46 minutes 03 seconds East, 141.44 feet to a concrete
monument at the P.T. of the curve; thence South 88 degrees 13
minutes 34 seconds East, along the Southerly margin of Research
Boulevard, 625.21 feet to a concrete monument at the P.C. of a
curve to the right; thence around said curve to the right, with a
radius of 100.00 feet and a chord bearing and distance of South
43 degrees 08 minutes 06 seconds East, 141.65 feet to a concrete
monument at the P.T. of the curve; thence along the Westerly
margin of Research Drive, South 01 degrees 57 minutes 26 seconds
East, 358.11 feet to the point of beginning and containing 13.495
acres, more or less.
