EXHIBIT 10.3
WHEN RECORDED RETURN TO:
Commercial Loan Services
KY1-4340
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000-0000
[CHASE LOGO]
COLLATERAL MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
UNITED STATES OF AMERICA
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, that on this ___________ day of ____________________, 20____,
before me, a Notary Public for this Parish and State, and in the presence of the
undersigned competent witnesses, personally came and appeared:
Blackwater New Orleans, L.L.C., whose address is 0000 Xxxxxxx 00, Xxxxxxxxx, XX
00000, and whose Tax Identification Number is XX-XXXX3617 (the "Mortgagor"), who
declared to me, Notary, that the Mortgagor has executed a Collateral Mortgage
Note dated December 23, 2008 in the principal amount of $7,000,000.00 payable to
the order of BEARER, on demand, and bearing interest at the rate of 12.00% per
annum from date until paid, which Collateral Mortgage Note is paraphed "Ne
Varietur" for identification with this Mortgage by the Notary Public before whom
this Mortgage is passed. A copy of the Collateral Mortgage Note is attached as
an exhibit and is expressly made a part of this Mortgage by reference, and the
original Collateral Mortgage Note has been delivered to the Mortgagee, who
acknowledges its receipt.
The Mortgagor declared that the Collateral Mortgage Note has been or will be
pledged to JPMorgan Chase Bank, N.A., whose mailing address is 000 Xx. Xxxxxxx
Xxxxxx, Xxx Xxxxxxx, XX 00000, and whose Tax Identification Number is 00-0000000
(the "Mortgagee") for the purpose of securing any and all present and future
indebtedness that the Borrower may obtain or incur, from time to time and one or
more times, from the Mortgagee and any future holder(s) of the Collateral
Mortgage Note.
And now, in order to secure the prompt and punctual payment and satisfaction of
the Collateral Mortgage Note and the Liabilities, the Mortgagor MORTGAGES AND
WARRANTS to the Mortgagee all of the Mortgagor's right, title and interest, now
owned or hereafter acquired, in the "Premises." The Premises includes the
following:
(1) The immovable property, and all the existing or subsequently affixed
or erected buildings, structures and improvements on it, situated in
Xxxxxxxxx Xxxxxx, Louisiana, described as:
See Exhibit "A" Attached Hereto and Made a Part Hereof for All
Purposes Intended;
Commonly known as 000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx 00000;
(2) All easements, rights-of-way, licenses, privileges and hereditaments
appurtenant to or used in connection with the Premises;
(3) All land lying in the bed of any road, street, alley or the like,
opened, proposed or vacated, public or private, or any strip or xxxx,
adjoining the Premises;
(4) All machinery, apparatus, equipment, fittings, fixtures and articles
of personal property of every kind and nature whatsoever located now or in
the future in or upon the Premises and used or useable in connection with
any present or future operation of the Premises (the "Equipment"). It is
agreed that all Equipment is part of the Premises and appropriated to the
use of the real estate and, whether affixed or annexed or not, shall for
the purposes of this Mortgage, unless the Mortgagee shall otherwise elect,
be deemed conclusively to be real estate and mortgaged and warranted to
the Mortgagee;
(5) All mineral, coal, oil, gas and water rights, royalties, water
courses, ditch rights, water and water stock, timber and timber rights, if
any;
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(6) All insurance, condemnation and other awards or payments, including
interest, made as a result of: (a) the exercise of the right of eminent
domain, (b) the alteration of the grade of any street, (c) any loss of or
damage to any building or other improvement on the Premises, (d) any other
injury to or decrease in the value of the Premises, (e) any refund due on
account of the payment of real estate taxes, assessments or other charges
levied against or imposed upon the Premises and (f) the reasonable
attorneys' and fees and court costs;
(7) All present and future (a) leases, subleases, licenses and other
agreements for the use and/or occupancy of the Premises, oral or written,
including, without limitation, all extensions, renewals, replacements and
holdovers (collectively, the "Leases") and (b) rents, revenues, income,
issues, royalties, profits, bonuses, accounts, cash, security deposits,
advance rents and other payments and/or benefits, of every kind or nature,
derived from the Leases and/or the Premises, including, without
limitation, the Mortgagor's right to enforce Leases and to receive and
collect all payments and proceeds under the Leases (collectively, the
"Rents");
(8) All rights to make divisions of the real estate comprising the
Premises that are exempt from the platting requirements of all applicable
land division or platting acts, as amended from time to time; and
(9) All licenses, contracts, permits and agreements required or used in
connection with the ownership, maintenance or operation of the Premises.
The Premises are unencumbered except for liens for taxes and assessments not yet
due and payable, building and use restrictions of record, zoning ordinances, and
any other encumbrances disclosed to the Mortgagee in writing as of the date of
this Mortgage ("Permitted Encumbrances"). If the Premises are encumbered by
Permitted Encumbrances, the Mortgagor shall perform all obligations and make all
payments as required by the Permitted Encumbrances. The Mortgagor shall provide
the Mortgagee copies of all writings pertaining to Permitted Encumbrances and
the Mortgagee is authorized to request and receive that information from any
other person without the consent or knowledge of the Mortgagor.
The Mortgagor expressly confesses judgment for purposes of executory process in
favor of the Mortgagee for the full amount of the Liabilities in conformity with
La. R. S. 9:3590. The Mortgagor hereby expressly waives the benefit of
appraisement, as provided in Articles 2332, 2336, 2723, and 2724 of the
Louisiana Code of Civil Procedure, and all other laws conferring the same. The
Mortgagor further expressly waives demand, putting in default, citation and all
notices and delays, including the three-day notice provided by Articles 2639 and
2721, and the notice of seizure provided by Articles 2293 and 2721 of the
Louisiana Code of Civil Procedure. The Mortgagor further expressly consents to
the use of executory process to enforce the Liabilities and this Mortgage. The
Premises shall remain mortgaged and subject to the security interests granted in
this Mortgage even though the Liabilities may be reduced to zero, until the
cancellation of this Mortgage by written instrument executed by the Mortgagee or
its assignee. THIS MORTGAGE SECURES FUTURE ADVANCES.
The term "Borrower" means the Mortgagor or any other person or entity liable to
the Mortgagee under any instrument or agreement described in the definition of
"Liabilities" herein, whether under any promissory note, guaranty, letter of
credit application, this Mortgage, any other Related Documents or otherwise.
This Mortgage secures the Liabilities.
The term "Liabilities" means all indebtedness, liabilities and obligations of
every kind and character of each Borrower to the Mortgagee, whether the
indebtedness, liabilities and obligations are individual, joint or several
(solidary), contingent or otherwise, now or hereafter existing, including,
without limitation, all liabilities, interest, costs and fees, arising under or
from any note, open account, overdraft, credit card, lease, Rate Management
Transaction, letter of credit application, endorsement, surety agreement,
guaranty, acceptance, foreign exchange contract or depository service contract,
whether payable to the Mortgagee or to a third party and subsequently acquired
by the Mortgagee, any monetary obligations (including interest) incurred or
accrued during the pendency of any bankruptcy, insolvency, receivership or other
similar proceedings, regardless of whether allowed or allowable in such
proceeding, and all renewals, extensions, modifications, consolidations,
rearrangements, restatements, replacements or substitutions of any of the
foregoing. The Mortgagor and the Mortgagee specifically contemplate that
Liabilities include indebtedness hereafter incurred by the Borrower to the
Mortgagee. The term "Liabilities" includes, without limitation, the following:
(1) That certain Term Note, dated December 23, 2008 in the original
principal amount of Two Million Five Hundred Thousand and 00/100 Dollars
($2,500,000.00), executed and delivered by Blackwater New Orleans, L.L.C.
to the Mortgagee; and
(2) The performance of all of the promises and agreements contained in
this Mortgage.
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The maximum principal sum secured by this Mortgage shall not exceed
$50,000,000.00 at any one time outstanding. This Mortgage shall not apply to any
obligation or debt incurred for personal, household or family purposes unless
the note or guaranty evidencing such personal, household or family debt
expressly states that it is secured by this Mortgage.
The term "Rate Management Transaction" in this Mortgage means any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into by any Borrower and the Mortgagee, which is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option, equity or equity
index swap, equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction, cross-currency rate
swap transaction, currency option, derivative transaction or any other similar
transaction (including any option with respect to any of these transactions) or
any combination thereof, whether linked to one or more interest rates, foreign
currencies, commodity prices, equity prices or other financial measures.
The term "Related Documents" in this Mortgage means all loan agreements, credit
agreements, reimbursement agreements, security agreements, mortgages, deeds of
trust, pledge agreements, assignments, guaranties, or any other instrument or
document executed in connection with any of the Liabilities.
The Mortgagor promises and agrees with the Mortgagee that each of the following
is true and will remain until termination of this Mortgage and full and final
payment of all Liabilities:
1. PAYMENT OF LIABILITIES; PERFORMANCE OF OBLIGATIONS. The Mortgagor shall
promptly pay when due, whether by acceleration or otherwise, the Liabilities for
which the Mortgagor is liable, and shall promptly perform all obligations to
which the Mortgagor has agreed under the terms of this Mortgage and any of the
other Related Documents.
2. TAXES AND LIENS. The Mortgagor shall pay, when due, before any interest,
collection fees or penalties shall accrue, all taxes, assessments, fines,
impositions, and other charges which may become a lien prior to this Mortgage.
Should the Mortgagor fail to make those payments, the Mortgagee may at its
option and at the expense of the Mortgagor, pay the amounts due for the account
of the Mortgagor. Upon the request of the Mortgagee, the Mortgagor shall
immediately furnish to the Mortgagee all notices of amounts due and receipts
evidencing payment. The Mortgagor shall promptly notify the Mortgagee of any
lien on all or any part of the Premises and shall promptly discharge any
unpermitted lien or encumbrance.
3. CHANGE IN TAXES. In the event of the passage of any law or regulation, state,
federal or municipal, subsequent to the date of this Mortgage, which changes or
modifies the laws now in force governing the taxation of mortgages or debts
secured by mortgages, or the manner of collecting those taxes, the Liabilities
shall become due and payable immediately at the option of the Mortgagee. 4.
4. INSURANCE. The Mortgagor shall keep the Premises and the present and future
buildings and other improvements (the "Improvements") on the Premises
continuously insured for the benefit of the Mortgagee, at replacement cost for
the full insurable value, without any reduction based upon the Mortgagor's acts,
against fire and such other hazards and risks customarily covered by the
standard form of extended coverage endorsement available in the state where the
Premises are located, including risks of vandalism and malicious mischief. The
Mortgagor shall further at all times provide flood insurance covering all
Improvements and tangible personal property, if any, located on the Premises, if
the Premises are at any time determined by the Mortgagee to be situated in an
area designated as a Special Flood Hazard Area under the Flood Disaster
Protection Act of 1973, as amended by the National Flood Insurance Reform Act of
1994 and regulations issued under it (the "Flood Insurance Act"). Such flood
insurance policy shall be in the amount required by the Mortgagee (which may
exceed the amount required under the Flood Insurance Act) and include a
non-contributing mortgagee clause naming the Mortgagee as mortgagee. The
Mortgagor shall additionally provide such other appropriate insurance as the
Mortgagee may require from time to time. All insurance policies and renewals
must be in form and substance acceptable to the Mortgagee, must provide for
payment to the Mortgagee in the event of loss, regardless of any act or omission
by the Mortgagor, must require thirty (30) days notice to the Mortgagee in the
event of nonrenewal or cancellation and must be delivered to the Mortgagee
within thirty (30) days prior to their respective effective dates. Should the
Mortgagor fail to insure or fail to pay the premiums on any insurance or fail to
deliver the policies or certificates or renewals to the Mortgagee, then the
Mortgagee, at its option, may have the insurance written or renewed, and may pay
the premiums, for the account of the Mortgagor. In the event of loss or damage,
the proceeds of the insurance shall be paid to the Mortgagee alone. No loss or
damage shall itself reduce the Liabilities. The Mortgagee is authorized to
adjust and compromise a loss without the consent of the Mortgagor, to collect,
receive and receipt for any proceeds in the name of the Mortgagee and the
Mortgagor and to endorse the Mortgagor's name upon any check in payment of
proceeds. The proceeds shall be applied first toward reimbursement of all costs
and expenses of the Mortgagee in collecting the proceeds and then toward payment
of the Liabilities or any portion of it, whether or not then due or payable, or
the Mortgagee, at its option, may apply the proceeds, or any part of the
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proceeds, to the repair or rebuilding of the Premises provided that the
Mortgagor (a) is not then or at any time during the course of restoration of the
Premises in default under this Mortgage and (b) has complied with all
requirements for application of the proceeds to restoration of the Premises as
the Mortgagee, in its sole discretion may establish. The Mortgagor shall also
provide and maintain comprehensive general liability insurance in such coverage
amounts as the Mortgagee may request, with the Mortgagee being named as an
additional insured on such policies. Evidence of the renewal of such liability
insurance shall be delivered to the Mortgagee at the same time as evidence of
the renewal of the property insurance required above must be delivered to the
Mortgagee. If the Mortgagor fails to provide such liability insurance, and/or
the renewals thereof, or fails to pay the premiums on such liability insurance
when such premiums are due, then the Mortgagee may have such liability insurance
written or renewed, and may pay the premiums, for the account of the Mortgagor.
5. RESERVES FOR TAXES AND INSURANCE. The Mortgagor shall, if requested by the
Mortgagee, pay to the Mortgagee, at the time of and in addition to the scheduled
installments of principal and/or interest due under the Liabilities, a sum equal
to (a) the amount estimated by the Mortgagee to be sufficient to enable the
Mortgagee to pay, at least thirty (30) days before they become due and payable,
all taxes, assessments and other similar charges levied against the Premises,
plus (b) the amount of the annual premiums on any policies of insurance required
to be carried by the Mortgagor, divided by (c) the number of installments due
each year ((a) and (b) are collectively referred to as the "Charges"). Upon
notice at any time, the Mortgagor will, within ten (10) days, deposit such
additional sum as may be required for the payment of increased Charges. These
sums may be commingled with the general funds of the Mortgagee and no interest
shall be payable on them, nor shall these sums be deemed to be held in trust for
the benefit of the Mortgagor. Notwithstanding payment of any sums by the
Mortgagor to the Mortgagee under the terms of this Section, the Mortgagee shall
have no obligation to pay any Charges. The obligation of the Mortgagor to pay
the Charges is not affected or modified by the arrangements set out in this
Section. Payment by the Mortgagee on any one or more occasions of all or any
part of the Charges shall not be construed as obligating it to pay any Charges
on any other occasion. If the Mortgagee elects to pay any Charge, it shall not
be required to do so at any time prior to the date on which penalties, interest
or collection fees begin to accrue. If the Mortgagee elects to pay any premium
on any policy of insurance required to be carried by the Mortgagor, it may do so
at any time prior to the cancellation of the policy.
In the event of foreclosure of this Mortgage, any of the moneys then remaining
on deposit with the Mortgagee or its agent shall be applied against the
Liabilities prior to the commencement of foreclosure proceedings. Any default by
the Mortgagor in the performance of the provisions of this Section shall
constitute a default under this Mortgage.
6. WASTE/ABANDONMENT. The Mortgagor shall not abandon the Premises, commit or
permit waste on the Premises, or do any other act causing the Premises to become
less valuable. The Mortgagor will keep the Premises in good order and repair and
in compliance in all material respects with any law, regulation, ordinance or
contract affecting the Premises and, from time to time, will make all needful
and proper replacements so that all fixtures, improvements and Equipment will at
all times be in good condition, fit and proper for their respective purposes.
Without limitation of the foregoing, nonpayment of the Charges shall constitute
waste. Should the Mortgagor fail to effect any necessary repairs, the Mortgagee
may, at its option and at the expense of the Mortgagor, make the repairs for the
account of the Mortgagor. The Mortgagor shall use and maintain the Premises in
conformance with all applicable laws, ordinances and regulations. The Mortgagee
or its authorized agent shall have the right to enter upon and inspect the
Premises at all reasonable times. The Mortgagor unconditionally agrees to timely
pay all fees with respect to inspections of the Premises.
7. ALTERATIONS, REMOVAL. No building, structure, improvement, fixture, personal
property or Equipment constituting any part of the Premises shall be removed,
demolished or substantially altered without the prior written consent of the
Mortgagee.
8. PAYMENT OF OTHER OBLIGATIONS. The Mortgagor shall also pay all other
obligations which may become liens or charges against the Premises for any
present or future repairs or improvements made on the Premises, or for any other
goods, services, or utilities furnished to the Premises and shall not permit any
lien or charge of any kind securing the repayment of borrowed funds (including
the deferred purchase price for any property) to accrue and remain outstanding
against the Premises.
9. ASSIGNMENT OF LEASES AND RENTS. As additional security for the Liabilities,
the Mortgagor, by executing and delivering this Mortgage, absolutely,
unconditionally, irrevocably and immediately assigns, grants, conveys and sets
over unto the Mortgagee all of the Mortgagor's right, title and interest in and
to all Leases and Rents. Copies of existing Leases and Lease amendments have
been delivered to the Mortgagee. The Mortgagor will provide copies of any future
Leases and Lease amendments to the Mortgagee.
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Subject to the license granted to the Mortgagor below, the Mortgagee shall have
the complete right and authority, at any time from and after the occurrence of
any default in the payment or performance of any of the Liabilities or the
occurrence of any default under this Mortgage, to collect and receive the Rents.
For this purpose, the Mortgagee is hereby given and granted the following
rights, powers and authority: (a) the Mortgagee may send notices to any and all
tenants of the Premises advising them of this assignment and directing all the
Rents to be paid directly to the Mortgagee or the Mortgagee's agent; (b) the
Mortgagee may (i) enter upon and take possession of the Premises, (ii) demand,
collect and receive from the tenants (or from any other persons liable therefor)
all of the Rents, (iii) institute and carry on all legal proceedings necessary
for the protection of the Premises, including such proceedings as may be
necessary to recover possession of the Premises and collect the Rents, (iv)
remove any tenant or other persons from the Premises, (v) enter upon the
Premises to maintain the Premises and keep the same in repair, and pay the costs
thereof and of all services of all employees, including their equipment, and of
all continuing costs and expenses of maintaining the Premises in proper repair
and condition and (vi) pay all taxes, assessments and water utilities and the
premiums on fire and other insurance effected by the Mortgagee on the Premises;
(c) the Mortgagee may do any and all things necessary or advisable to execute
and comply with all applicable laws, rules, orders, ordinances and requirements
of all governmental agencies; (d) the Mortgagee may (i) rent or lease the whole
or any part of the Premises for such term or terms and on such conditions as the
Mortgagee may deem appropriate, (ii) modify, terminate or accept the surrender
of any Leases and/or (iii) waive, release, discharge or compromise any Rents or
any obligations of any of the tenants under any Leases; (e) the Mortgagee may
make any payment, including necessary costs, expenses and reasonable attorneys'
fees and court costs, or perform any action, required of the Mortgagor under any
Lease, without releasing the Mortgagor from the obligation to do so and without
notice to or demand on the Mortgagor; (f) the Mortgagee may engage such agent or
agents as the Mortgagee may deem appropriate, either in the Mortgagee's name or
in the Mortgagor's name, to rent and manage the Premises, including the
collection and application of the Rents; and (g) the Mortgagee may do all such
other things and acts with respect to the Premises, the Leases and the Rents as
the Mortgagee may deem appropriate and may act exclusively and solely in the
place and stead of the Mortgagor. The Mortgagee has all of the powers of the
Mortgagor for the purposes stated above. The Mortgagee shall not be required to
do any of the foregoing acts or things and the fact that the Mortgagee shall
have performed one or more of the foregoing acts or things shall not require the
Mortgagee to do any other specific act or thing. The foregoing rights and
remedies of the Mortgagee are in addition to and not in limitation of the rights
and remedies of the Mortgagee at law, in equity, under this Mortgage or under
any of the other Related Documents. The exercise by the Mortgagee of any of the
foregoing rights and remedies shall not constitute a cure or waiver of any
default in the payment or performance of any of the Liabilities or of any
default under this Mortgage.
Any Rents received by the Mortgagee shall be applied against the Liabilities in
such order or manner as the Mortgagee shall elect in its sole discretion.
The Mortgagor hereby irrevocably authorizes and directs the tenants under the
Leases to pay the Rents to the Mortgagee upon written demand by the Mortgagee,
without further consent of the Mortgagor. The tenants may rely upon any written
statement delivered by the Mortgagee to the tenants. Any such payment to the
Mortgagee shall constitute payment to the Mortgagor under the Leases. The
provisions of this paragraph are intended solely for the benefit of the tenants
and shall never inure to the benefit of the Mortgagor or any person claiming
through or under the Mortgagor, other than a tenant who has not received such
notice. This assignment is not contingent upon any notice or demand by the
Mortgagee to the tenants.
This assignment shall not, prior to entry upon and taking possession of the
Premises by the Mortgagee, be deemed to constitute the Mortgagee a "mortgagee in
possession", nor obligate the Mortgagee to: (a) appear in or defend any
proceedings relating to any of the Leases, the Rents or to the Premises; (b)
take any action hereunder; (c) expend any money, incur any expense or perform
any obligation or liability under the Leases; or (d) assume any obligation for
any deposits delivered to the Mortgagor by any tenant and not delivered to the
Mortgagee.
The Mortgagor consents to the appointment of a receiver for the Premises,
without notice, if this is believed necessary or desirable by the Mortgagee.
The Rents constitute cash collateral as defined under federal bankruptcy law.
This assignment shall continue to be operative during any foreclosure or other
proceeding taken to enforce this Mortgage and during any redemption period.
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Until the occurrence of any default in the payment or performance of any of the
Liabilities or the occurrence of a default under this Mortgage or under any loan
papers related to the Liabilities the Mortgagor shall have a license, subject to
the other covenants of the Mortgagor set forth in this assignment, to (a) remain
in possession and control of the Premises, (b) operate and manage the Premises
and (c) collect the Rents; provided that the granting of such license shall not
constitute the Mortgagee's consent to the use of cash collateral in any
bankruptcy proceedings. The foregoing license shall automatically and
immediately terminate, without notice to the Mortgagor, upon the occurrence of
any default in the payment or performance of any of the Liabilities or upon the
occurrence of any default under this Mortgage or under any loan papers related
to the Liabilities. Thereafter, the Mortgagor shall promptly pay or otherwise
deliver to the Mortgagee all Rents that the Mortgagor may receive, and the
Mortgagor shall hold such Rents in trust for the benefit of the Mortgagee until
so paid or delivered to the Mortgagee.
The Mortgagor covenants, represents and warrants to the Mortgagee that the
following statements are true and will remain true until the Mortgage is
terminated and the Liabilities are paid in full:
(i) The Mortgagor will fulfill and perform its obligations under all the
Leases and give the Mortgagee prompt notice of any default in the performance of
the terms and conditions of the Leases by either the Mortgagor or the tenant,
together with copies of notices sent or received by the Mortgagor in connection
with any Lease;
(ii) Without the prior written consent of the Mortgagee, the Mortgagor
shall not in any way (a) enter into any new Lease, (b) amend, modify, assign its
interest under, cancel or terminate any Lease, (c) accept a surrender of any
Lease, (d) accept any payment of Rent under any Lease more than thirty (30) days
in advance or (e) waive, release, discharge or compromise any Rent or any of the
tenant's obligations under any Lease, except that the Mortgagor may increase
Lease rentals without the Mortgagee's consent;
(iii) The Mortgagor will appear and defend or prosecute any action growing
out of any Lease at the Mortgagor's cost and expense;
(iv) The Mortgagee may, but shall not be required to, make any payment
including necessary costs, expenses and reasonable attorneys' fees and court
costs, or perform any action required of the Mortgagor under any Lease, without
releasing the Mortgagor from the obligation to do so and without notice to or
demand on the Mortgagor. The Mortgagor will, immediately upon demand, reimburse
the Mortgagee for all such costs, expenses and fees, together with interest at
the highest rate permitted by any instrument evidencing any of the Liabilities,
all of which shall be added to the Liabilities;
(v) The Mortgagor has not previously assigned any of its rights under any
Lease. The Mortgagor has not accepted Rent more than thirty (30) days in advance
of accrual. There is no present default under any Lease by either the Mortgagor
or any tenant. All existing Leases are in full force and effect and unmodified.
To the best of the Mortgagor's knowledge, no person or entity is in possession
of the Premises, except pursuant to a valid and fully executed Lease that has
been assigned to the Mortgagee pursuant to this assignment. The Mortgagor owns
the Leases, is entitled to receive the Rents and has authority to assign the
Leases and the Rents to the Mortgagee as set forth in this assignment. The
Mortgagor will enforce the tenant's obligations under their respective Leases;
(vi) The Mortgagee shall not be obligated by this assignment to perform or
discharge any obligation under any Lease; and
(vii) The Mortgagor covenants not to execute any other assignment of the
Leases or the Rents as security for any debt without the prior written consent
of the Mortgagee.
10. ASSIGNMENT OF INTEREST AS TENANT OR PURCHASER. If the Mortgagor's interest
in the Premises is that of a tenant or a purchaser, the Mortgagor also assigns,
mortgages and warrants to the Mortgagee, as additional security for the
Liabilities, all of the Mortgagor's right, title and interest in and to any
Leases, land contracts or other agreements by which the Mortgagor is leasing or
purchasing all or any part of the Premises, including all modifications,
renewals and extensions, and all of the Mortgagor's right, title and interest in
and to any purchase options contained in any such Leases or other agreements.
The Mortgagor agrees to pay each installment of rent, principal and interest
required to be paid by it under any such Lease, land contract or other agreement
when each installment becomes due and payable, whether by acceleration or
otherwise. The Mortgagor further agrees to pay and perform all of its other
obligations under any such Lease, land contract or other agreement.
If the Mortgagor defaults in the payment of any installment of rent, principal
or interest, or in the payment or performance of any other obligation, under any
such Lease, land contract or other agreement, the Mortgagee shall have the
right, but not the obligation, to pay the installment or installments and to pay
or perform the other obligations on behalf of and at the expense of the
Mortgagor. If the Mortgagee receives a written notice of the Mortgagor's default
under any such Lease, land contract or other agreement, the Mortgagee may rely
on that notice as cause to take any action it deems necessary or reasonable to
cure the default, even if the Mortgagor questions or denies the existence or
nature of the default.
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11. SECURITY AGREEMENT. This Mortgage also constitutes a security agreement
within the meaning of the Louisiana Commercial Laws as in effect from time to
time in the state in which the Premises is located (the "UCC") and the Mortgagor
grants to the Mortgagee a security interest in any Equipment or other personal
property included within the definition of the Premises, and all proceeds,
products and supporting obligations of any of the foregoing (the "Collateral").
Accordingly, the Mortgagee shall have all of the rights and remedies available
to a secured party under the UCC. Upon the occurrence of any default under this
Mortgage, the Mortgagee shall have, in addition to the remedies provided by this
Mortgage, the right to use any method of disposition of collateral authorized by
the UCC with respect to any portion of the Premises subject to the UCC. The
Mortgagee shall have the right to require the Mortgagor to assemble the
Collateral and make it available to the Mortgagee at a place designated by the
Mortgagee which is reasonably convenient to both parties, the right to take
possession of the Collateral with or without demand and with or without process
of law, and the right to sell and dispose of the Collateral and distribute the
proceeds according to law. Should a default occur, the Mortgagor will pay to the
Mortgagee all costs reasonably incurred by the Mortgagee for the purpose of
enforcing its rights hereunder, to the extent not prohibited by law, including,
without limitation: costs of foreclosure; costs of obtaining money damages; and
a reasonable fee for the services of internal and outside attorneys employed or
engaged by the Mortgagee for any purpose related to this security agreement,
including, without limitation, consultation, drafting documents, sending notices
or instituting, prosecuting or defending litigation or any proceeding. The
Mortgagor agrees that upon default the Mortgagee may dispose of any of the
Collateral in its then present condition, that the Mortgagee has no duty to
repair or clean the Collateral prior to sale, and that the disposal of the
Collateral in its present condition or without repair or clean-up shall not
affect the commercial reasonableness of such sale or disposition. The
Mortgagee's compliance with any applicable state or federal law requirements in
connection with the disposition of the Collateral will not adversely affect the
commercial reasonableness of any sale of the Collateral. In connection with the
right of the Mortgagee to take possession of the Collateral, the Mortgagee may,
without liability on the part of the Mortgagee, take possession of any other
items of property in or on the Collateral at the time of taking possession and
hold them for the Mortgagor. If there is any statutory requirement for notice,
that requirement shall be met if the Mortgagee sends notice to the Mortgagor at
least ten (10) days prior to the date of the sale, disposition, or other event
giving rise to the required notice. Upon the request of the Mortgagee, the
Mortgagor shall execute and file such financing statements and shall take any
other action requested by the Mortgagee to perfect and continue as perfected the
Mortgagee's security interests in the Equipment and other personal property
included in the definition of the Premises. The Mortgagor shall pay (and shall
reimburse the Mortgagee for) all costs, including attorneys' fees and court
costs, of the preparation and filing of any financing statements and the taking
of any such other actions. A carbon, photographic or other reproduction of this
Mortgage is sufficient as, and can be filed as, a financing statement. The
Mortgagee is irrevocably appointed the Mortgagor's attorney-in-fact to execute
any financing statement on the Mortgagor's behalf covering the Equipment and
other personal property, tangible or intangible, that is included within the
definition of Premises. Additionally, if permitted by applicable law, the
Mortgagor authorizes the Mortgagee to file one or more financing statements
related to the security interests created by this Mortgage and further
authorizes the Mortgagee, instead of the Mortgagor, to sign such financing
statements. The Mortgagor shall execute and deliver, or cause to be executed and
delivered, such other documents as the Mortgagee may from time to time request
to perfect or to further evidence the security interest created in the
Collateral by this Mortgage. The Mortgagor further represents and warrants to
the Mortgagee that (a) its principal residence or chief executive office is at
the address shown above and (b) the Mortgagor's name as it appears in this
Mortgage is identical to the name of the Mortgagor appearing in the Mortgagor's
organizational documents, as amended, including trust documents. The Mortgagor
will not, without the Mortgagee's prior written consent, change (a) the
Mortgagor's name, (b) the Mortgagor's business organization, (c) the
jurisdiction under which the Mortgagor's business organization is formed or
organized, or (d) the address of the Mortgagor's chief executive office or
principal residence or of any additional places of the Mortgagor's business.
12. REIMBURSEMENT OF ADVANCES. If the Mortgagor fails to perform any of its
obligations under this Mortgage, or if any action or proceeding is commenced
which materially affects the Mortgagee's interest in the Premises (including but
not limited to a lien priority dispute, eminent domain, code enforcement,
insolvency, bankruptcy or probate proceedings), then the Mortgagee at its sole
option may make appearances, disburse sums and take any action it deems
necessary to protect its interest (including but not limited to disbursement of
reasonable attorneys' fees and court costs and entry upon the Premises to make
repairs). Any amounts disbursed shall become additional Liabilities, shall be
immediately due and payable upon notice from the Mortgagee to the Mortgagor, and
shall bear interest at the highest rate permitted under any of the instruments
evidencing any of the Liabilities. The Mortgagee's rights under this Section
shall be in addition to all other rights and remedies of the Mortgagee under
this Mortgage and the other Related Documents. Any action taken by the Mortgagee
under this Section shall not be construed as curing any default that gave rise
to such action by the Mortgagee.
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13. DUE ON TRANSFER. If all or any part of the Premises or any interest in the
Premises is transferred without the Mortgagee's prior written consent, the
Mortgagee may, at its sole option, declare the Liabilities to be immediately due
and payable.
14. NO ADDITIONAL LIEN. The Mortgagor covenants not to execute any mortgage,
security agreement, assignment of leases and rentals or other agreement granting
a lien against the interest of the Mortgagor in the Premises without the prior
written consent of the Mortgagee, and then only when the document granting that
lien expressly provides that it shall be subject to the lien of this Mortgage
for the full amount secured by this Mortgage and shall also be subject and
subordinate to all present and future leases affecting the Premises.
15. EMINENT DOMAIN. Notwithstanding any taking under the power of eminent
domain, alteration of the grade of any road, alley, or the like, or other injury
or damage to or decrease in value of the Premises by any public or quasi-public
authority or corporation, the Mortgagor shall continue to pay the Liabilities in
accordance with the terms of the Related Documents. By executing this Mortgage,
the Mortgagor assigns the entire proceeds of any award or payment and any
interest to the Mortgagee. The Mortgagor will notify the Mortgagee of any action
or proceeding related to any taking of all or any part of the Premises, shall
defend that action or proceeding in consultation with the Mortgagee and shall,
if requested by the Mortgagee, deliver to the Mortgagee all documents and
instruments that may be required to allow the Mortgagee to directly participate
in or control such action or proceeding. The proceeds of any taking or grant in
lieu of any taking shall be applied first toward reimbursement of all costs and
expenses of the Mortgagee in collecting the proceeds, including reasonable
attorneys' fees and court costs, and then toward payment of the Liabilities,
whether or not then due or payable, or the Mortgagee, at its option, may apply
the proceeds, or any part, to the alteration, restoration or rebuilding of the
Premises.
16. ENVIRONMENTAL PROVISIONS. As used herein: the term "Hazardous Substance"
shall mean any substance, material, or waste that is (a) included within the
definitions of "hazardous substances," "hazardous materials," "hazardous waste,"
"toxic substances," "toxic materials," "toxic waste," or words of similar import
in any Environmental Law, (b) listed as hazardous substances by the United
States Department of Transportation or by the Environmental Protection Agency,
or (c) petroleum, petroleum-related, or a petroleum by-product, asbestos or
asbestos-containing material, polychlorinated biphenyls, flammable, explosive,
radioactive, freon gas, radon, or a pesticide, herbicide, or any other
agricultural chemical. The term "Environmental Law" shall mean any federal,
state or local law, rule, regulation, decision, policy or guideline, pertaining
to Hazardous Substances, or protection of the environment, and all present and
future amendments thereto. Except as disclosed in writing by the Mortgagor to
the Mortgagee, the Mortgagor represents and warrants to the Mortgagee that (i)
neither the Premises nor the Mortgagor are in violation of any Environmental Law
applicable to the Premises, or are subject to any existing, pending or
threatened governmental investigation pertaining to the Premises, or are subject
to any remedial obligation or lien under or in connection with any Environmental
Law, (ii) the Mortgagor has no actual knowledge or notice of the presence or
release of Hazardous Substances in, on or around any part of the Premises or the
soil, groundwater or soil vapor on or under the Premises, or the migration of
any Hazardous Substance, from or to any other property in the vicinity of the
Premises; and (iii) the Mortgagor's intended future use of the Premises will not
result in the release of any Hazardous Substance in, on or around any part of
the Premises or in the soil, groundwater or soil vapor on or under the Premises,
or the migration of any Hazardous Substance from or to any other property in the
vicinity of the Premises.
The Mortgagor shall neither use nor permit any third party to use, generate,
manufacture, produce, store, or release, on, under or about the Premises, or
transfer to or from the Premises, any Hazardous Substance, except in compliance
with all Environmental Laws, and shall otherwise comply, at the Mortgagor's sole
expense and responsibility, with all Environmental Laws, provided that if any
such occurrence shall nevertheless happen, the Mortgagor shall promptly remedy
such condition, at its sole expense and responsibility. The Mortgagor shall not
permit any environmental liens to be placed on any portion of the Premises. The
Mortgagor shall promptly notify the Mortgagee in writing if (a) any of the
representations and warranties herein are no longer accurate, (b) there may be
any Hazardous Substance in, on or around the Premises or the soil, groundwater
or soil vapor on or under the Premises, or (c) any violation of any
Environmental Law on or affecting or otherwise in respect of the Premises has
occurred. The Mortgagee and its agents shall have the right, and are hereby
authorized, at any reasonable time to enter upon the Premises for the purposes
of observing the Premises, taking and removing soil or groundwater samples, and
conducting tests and/or site assessments on the Premises, or taking such other
actions as the Mortgagee deems necessary or advisable to clean up, remove,
resolve, or minimize the impact of, or otherwise deal with, any Hazardous
Substances on or affecting the Premises following receipt of any notice from any
person or entity asserting the existence or possible existence of any Hazardous
Substances pertaining to the Premises, that, if true, could jeopardize the
Mortgagee's security for the Liabilities. All reasonable costs and expenses paid
or incurred by the Mortgagee in the exercise of any such rights shall be secured
hereby and shall be payable by the Mortgagor upon demand.
8
The Mortgagor shall indemnify and hold the Mortgagee harmless from, for and
against any and all actions, causes of action, claims, liabilities, damages
(including foreseeable and unforeseeable consequential damages), losses, fines,
penalties, judgments, awards, settlements, and costs and expenses (including,
without limitation, reasonable attorneys' fees, experts', engineers' and
consultants' fees, and costs and expenses of investigation, testing, remediation
and dispute resolution) (collectively referred to as "Environmental Costs") that
directly or indirectly arise out of or relate in any way to: (a) Any
investigation, cleanup, removal, remediation, or restoration work of site
conditions of the Premises relating to Hazardous Substances; (b) Any resulting
damages, harm, or injuries to the person or property of any third parties or to
any natural resources involving Hazardous Substances relating to the Premises;
(c) Any actual or alleged past or present disposal, generation, manufacture,
presence, processing, production, release, storage, transportation, treatment,
or use of any Hazardous Substance on, under, or about the Premises; (d) Any
actual or alleged past or present violation of any Environmental Law relating to
the Premises; (e) Any lien on any part of the Premises under any Environmental
Law; or (f) Breach of any representation or warranty by or covenant of the
Mortgagor herein. Notwithstanding anything contained herein to the contrary, the
foregoing indemnity shall not apply to (i) matters resulting from the gross
negligence or willful misconduct of the Mortgagee, or (ii) matters resulting
solely from the actions of the Mortgagee taken after the Mortgagee has taken
title to, or exclusive possession of the Premises, provided that, in both cases,
such matters shall not arise from or be accumulated with any condition of the
Premises, which condition was not caused by the Mortgagee. THE FOREGOING
INDEMNITY IS EXPRESSLY INTENDED TO INCLUDE, AND DOES INCLUDE, ANY ENVIRONMENTAL
COSTS ARISING AS A RESULT OF ANY STRICT LIABILITY IMPOSED OR THREATENED TO BE
IMPOSED ON THE MORTGAGEE IN CONNECTION WITH ANY OF THE INDEMNIFIED MATTERS
DESCRIBED IN THIS SECTION OR ARISING AS A RESULT OF THE NEGLIGENCE OF THE
MORTGAGEE IN CONNECTION WITH SUCH MATTERS. This indemnity shall continue in full
force and effect and shall survive the payment and performance of the
Liabilities, the release of record of the lien, or any foreclosure (or action in
lieu thereof), of this Mortgage, the exercise by the Mortgagee of any other
remedy under this Mortgage or any other document or instrument evidencing or
securing the Liabilities, and any suit, proceeding or judgment against the
Mortgagor by the Mortgagee hereon.
17. EVENTS OF DEFAULT/REMEDIES. If any of the Liabilities are not paid at
maturity, whether by acceleration or otherwise, or if a default occurs by anyone
under the terms of this Mortgage or any Related Document, then the Mortgagee may
exercise all of the rights, powers and remedies expressly or impliedly conferred
on or reserved to it under this Mortgage or any other Related Document, or now
or later existing at law or in equity, including without limitation the
following: (i) the Mortgagee may declare the Liabilities to be immediately due,
(ii) the Mortgagee may proceed at law or in equity to collect the Liabilities,
foreclose this Mortgage or otherwise pursue any of its rights or remedies
available at law, in equity, pursuant to this Mortgage or pursuant to any of the
other Related Documents and (iii) the Mortgagee may exercise any of its rights,
powers or remedies pursuant to the UCC. The Mortgagee shall be entitled to the
appointment of a receiver for the Premises as a matter of right and without
notice (without regard to the value of the Premises) and the Mortgagor
specifically consents to that appointment without notice. Without limitation,
the receiver shall have the power to protect and preserve the Premises, operate
the Premises prior to and during any foreclosure proceedings, to collect the
Rents and apply the proceeds, over and above the costs of the receivership, to
the Liabilities. The receiver shall serve without bond, if permitted by law.
The Premises may be sold in one parcel as an entirety or in such parcels, manner
and order as the Mortgagee may elect. The proceeds of any sale of the Premises
in foreclosure shall be retained by the Mortgagee, up to the amount due on the
Liabilities, including costs of sale and any environmental remediation or other
costs and expenses incurred by the Mortgagee in connection with the Liabilities
and/or the Premises, including without limitation, attorneys' fees and court
costs. By executing this Mortgage, the Mortgagor waives, in the event of a
foreclosure of this Mortgage or the enforcement by the Mortgagee of any other
rights and remedies in this Mortgage, any right otherwise available in respect
to marshalling of assets which secure the Liabilities or to require the
Mortgagee to pursue its remedies against any other such assets. The Mortgagor
waives all errors and imperfections in any proceedings instituted by the
Mortgagee to enforce any of its rights and remedies. The exercise of any one
right or remedy by the Mortgagee under this Mortgage or any of the other Related
Documents shall not impair or waive the Mortgagee's right to exercise any other
rights or remedies available to it at law, in equity, under this Mortgage or
under any of the other Related Documents, all such rights and remedies being
cumulative. All fees, costs and expenses incurred by the Mortgagee in pursuing
or enforcing its rights and remedies at law, in equity, under this Mortgage or
under any of the other Related Documents, whether or not a lawsuit or legal
action is filed, including attorneys' fees and court costs, shall be payable by
the Mortgagor to the Mortgagee on demand and shall be secured by this Mortgage.
9
18. PLEDGE. If the Mortgagor is not liable for all or any part of the
Liabilities, then the Mortgagor agrees that:
1. If any moneys become available from any source other than the Premises
that the Mortgagee can apply to the Liabilities, the Mortgagee may apply
them in any manner it chooses, including but not limited to applying them
against obligations, indebtedness or liabilities which are not secured by
this Mortgage.
2. The Mortgagee may take any action against the Borrower, the Premises or
any other collateral for the Liabilities, or any other person or entity
liable for any of the Liabilities.
3. The Mortgagee may release the Borrower or anyone else from the
Liabilities, either in whole or in part, or release the Premises in whole
or in part or any other collateral for the Liabilities, and need not
perfect a security interest in the Premises or any other collateral for
the Liabilities.
4. The Mortgagee does not have to exercise any rights that it has against the
Borrower or anyone else, or make any effort to realize on the Premises or
any other collateral for the Liabilities, or exercise any right of setoff.
5. Without notice or demand and without affecting the Mortgagor's obligations
hereunder, from time to time, the Mortgagee is authorized to: (a) renew,
modify, compromise, rearrange, restate, consolidate, extend, accelerate or
otherwise change the time for payment of, or otherwise change the terms of
the Liabilities or any part thereof, including increasing or decreasing
the rate of interest thereon; (b) release, substitute or add any one or
more sureties, endorsers, or guarantors; (c) take and hold other
collateral for the payment of the Liabilities, and enforce, exchange,
substitute, subordinate, impair, waive or release any such collateral; (d)
proceed against the Premises or any other collateral for the Liabilities
and direct the order or manner of sale as the Mortgagee in its discretion
may determine; and (e) apply any and all payments received by the
Mortgagee in connection with the Liabilities, or recoveries from the
Premises or any other collateral for the Liabilities, in such order or
manner as the Mortgagee in its discretion may determine.
6. The Mortgagor's obligations hereunder shall not be released, diminished or
affected by (a) any act or omission of the Mortgagee, (b) the voluntary or
involuntary liquidation, sale or other disposition of all or substantially
all of the assets of the Borrower, or any receivership, insolvency,
bankruptcy, reorganization, or other similar proceedings affecting the
Borrower or any of its assets or any other obligor on the Liabilities or
that obligor's assets, (c) any change in the composition or structure of
the Borrower or any other obligor on the Liabilities, including a merger
or consolidation with any other person or entity, or (d) any payments made
upon the Liabilities.
7. The Mortgagor expressly consents to any impairment of any other collateral
for the Liabilities, including, but not limited to, failure to perfect a
security interest and release of any other collateral for the Liabilities
and any such impairment or release shall not affect the Mortgagor's
obligations hereunder.
8. The Mortgagor waives and agrees not to enforce any rights of subrogation,
contribution or indemnification that it may have against the Borrower, any
person or entity liable on the Liabilities, or the Premises, until the
Borrower and the Mortgagor have fully performed all their obligations to
the Mortgagee, even if those obligations are not covered by this Mortgage.
9. The Mortgagor waives (a) to the extent not prohibited by applicable law,
all rights and benefits under any laws or statutes regarding sureties, as
may be amended, (b) any right the Mortgagor may have to receive notice of
the following matters before the Mortgagee enforces any of its rights: (i)
the Mortgagee's acceptance of this Mortgage, (ii) incurrence or
acquisition of any Liabilities, any credit that the Mortgagee extends to
the Borrower, (iii) the Borrower's default, (iv) any demand, diligence,
presentment, dishonor and protest, or (v) any action that the Mortgagee
takes regarding the Borrower, anyone else, any other collateral for the
Liabilities, or any of the Liabilities, which it might be entitled to by
law or under any other agreement, (c) any right it may have to require the
Mortgagee to proceed against the Borrower, any guarantor or other obligor
on the Liabilities, the Premises or any other collateral for the
Liabilities, or pursue any remedy in the Mortgagee's power to pursue, (d)
any defense based on any claim that the Mortgagor's obligations exceed or
are more burdensome than those of the Borrower, (e) the benefit of any
statute of limitations affecting the Mortgagor's obligations hereunder or
the enforcement hereof, (f) any defense arising by reason of any
disability or other defense of the Borrower or by reason of the cessation
from any cause whatsoever (other than payment in full) of the obligation
of the Borrower for the Liabilities, and (g) any defense based on or
arising out of any defense that the Borrower may have to the payment or
performance of the Liabilities or any portion thereof. The Mortgagee may
waive or delay enforcing any of its rights without losing them. Any waiver
affects only the specific terms and time period stated in the waiver.
10
10. The Mortgagor agrees that to the extent any payment or transfer is
received by the Mortgagee in connection with the Liabilities, and all or
any part of such payment or transfer is subsequently invalidated, declared
to be fraudulent or preferential, set aside or required to be transferred
or repaid by the Mortgagee or paid over to a trustee, receiver or any
other person or entity, whether under any bankruptcy act or otherwise (any
of those payments or transfers is hereinafter referred to as a
"Preferential Payment"), then this Mortgage shall continue to be effective
or shall be reinstated, as the case may be, even if all Liabilities have
been paid in full, and whether or not the Mortgagee is in possession of
this Mortgage or whether this Mortgage has been marked paid, cancelled,
released or returned to the Mortgagor, and, to the extent of the payment
or repayment or other transfer by the Mortgagee, the Liabilities or part
intended to be satisfied by the Preferential Payment shall be revived and
continued in full force and effect as if the Preferential Payment had not
been made. If this Mortgage must be reinstated, the Mortgagor agrees to
execute and deliver to the Mortgagee any new mortgages and agreements, if
necessary or if requested by the Mortgagee, in form and substance
acceptable to the Mortgagee, covering the Premises.
11. The Mortgagor agrees to fully cooperate with the Mortgagee and not to
delay, impede or otherwise interfere with the efforts of the Mortgagee to
secure payment from the assets which secure the Liabilities including
actions, proceedings, motions, orders, agreements or other matters
relating to relief from automatic stay, abandonment of property, use of
cash collateral and sale of the Mortgagee's collateral free and clear of
all liens.
12. The Mortgagor has (a) without reliance on the Mortgagee or any information
received from the Mortgagor and based upon the records and information the
Mortgagor deems appropriate, made an independent investigation of the
Borrower, the Borrower's business, assets, operations, prospects and
condition, financial or otherwise, and any circumstances that may bear
upon those transactions, the Borrower or the obligations, liabilities and
risks undertaken pursuant to this agreement; (b) adequate means to obtain
from the Borrower on a continuing basis information concerning the
Borrower and the Mortgagee has no duty to provide any information
concerning the Borrower or other obligor on the Liabilities to the
Mortgagor; (c) full and complete access to the Borrower and any and all
records relating to any Liabilities now or in the future owing by the
Borrower; (d) not relied and will not rely upon any representations or
warranties of the Mortgagor not embodied in this agreement or any acts
taken by the Mortgagor prior to or after the execution or other
authentication and delivery of this agreement (including but not limited
to any review by the Mortgagor of the business, assets, operations,
prospects and condition, financial or otherwise, of the Borrower); and (e)
determined that the Mortgagor will receive benefit, directly or
indirectly, and has or will receive fair and reasonably equivalent value,
for the execution and delivery of this agreement and the rights provided
to the Mortgagee. By entering into this agreement, the Mortgagor does not
intend: (i) to incur or believe that the Mortgagor will incur debts that
would be beyond the Mortgagor's ability to pay as those debts mature; or
(ii) to hinder, delay or defraud any creditor of the Mortgagor. The
Mortgagor is neither engaged in nor about to engage in any business or
transaction for which the remaining assets of the Mortgagor are
unreasonably small in relation to the business or transaction, and any
property remaining with the Mortgagor after the execution or other
authentication of this agreement is not unreasonably small capital.
19. REPRESENTATIONS BY THE MORTGAGOR. Each Mortgagor represents that: (a) it is
well and truly seized of good and marketable fee simple title to the real
property comprising the Premises and it is the lawful owner of the personal
property comprising the Premises, subject only to Permitted Encumbrances; (b)
the execution and delivery of this Mortgage and the performance of the
obligations it imposes do not violate any law, conflict with any agreement by
which it is bound or require the consent or approval of any governmental
authority or any third party; (c) this Mortgage is a valid and binding agreement
enforceable according to its terms; (d) any balance sheets, profit and loss
statements, and other financial statements furnished to the Mortgagee in
connection with the Liabilities are accurate and fairly reflect the financial
condition of the organizations and persons to which they apply on their
effective dates, including contingent liabilities of every type, which financial
condition has not changed materially and adversely since those dates; and (e) it
shall not permit any proceedings in foreclosure or otherwise that would affect
the Premises. Each Mortgagor, other than a natural person, further represents
that: (i) it is duly organized, validly existing and in good standing under the
laws of the state where it is organized and in good standing in each state where
it is doing business; and (ii) the execution and delivery of this Mortgage and
the performance of the obligations it imposes (A) are within its powers and have
been duly authorized by all necessary action of its governing body and (B) do
not contravene the terms of its articles of incorporation or organization, its
by-laws, or any partnership, operating or other agreement governing its affairs.
11
20. NOTICE. Any notices and demands under or related to this Mortgage shall be
in writing and delivered to the intended party at its address stated herein, and
if to the Mortgagee, at its main office if no other address of the Mortgagee is
specified herein, by one of the following means: (a) by hand; (b) by a
nationally recognized overnight courier service; or (c) by certified mail,
postage prepaid, with return receipt requested. Notice shall be deemed given:
(a) upon receipt if delivered by hand; (b) on the Delivery Day after the day of
deposit with a nationally recognized courier service; or (c) on the third
Delivery Day after the notice is deposited in the mail. "Delivery Day" means a
day other than a Saturday, a Sunday or any other day on which national banking
associations are authorized to be closed. Any party may change its address for
purposes of the receipt of notices and demands by giving notice of such change
in the manner provided in this provision. This notice provision shall be
inapplicable to any judicial or non-judicial proceeding where state law governs
the manner and timing of notices in foreclosure or receivership proceedings.
21. MISCELLANEOUS. If any provision of this Mortgage is in conflict with any
statute or rule of law or is otherwise unenforceable for any reason whatsoever,
then that provision is null and void to the extent of the conflict or
unenforceability and shall be severed from but shall not invalidate any other
provision of this Mortgage. No waiver by the Mortgagee of any right or remedy
granted or failure to insist on strict performance by the Mortgagor waives any
other right or remedy of the Mortgagee or waives or bars the subsequent exercise
of the same right or remedy by the Mortgagee for any subsequent default by the
Mortgagor. All rights and remedies of the Mortgagee are cumulative.
These promises and agreements bind and these rights benefit the parties and
their respective successors and assigns. If there is more than one Mortgagor,
the obligations under this Mortgage are joint and several (solidary). The
Mortgagor agrees that the Mortgagee may at any time sell or transfer one or more
participation interests in all or any part of the Liabilities to one or more
purchasers whether or not related to the Mortgagee.
This Mortgage and the Related Documents constitute the entire understanding of
the parties hereto and may not be amended or altered except by a written
instrument that has been signed by the party(ies) against which enforcement of
the amendment or alteration is sought.
Captions in this Mortgage are for convenience of reference only and do not limit
the provisions of this Mortgage.
Time is of the essence in this Mortgage.
22. GOVERNING LAW AND VENUE. This Mortgage shall be governed by and construed in
accordance with the laws of the State of Louisiana (without giving effect to its
laws of conflicts); provided, however, that if the real estate that is the
subject of this Mortgage is located in another state, the laws of such other
state shall govern the validity, enforceability, perfection, priority,
construction, effect, enforcement and remedies with respect to this Mortgage,
but nothing herein shall be construed to provide that the laws of any state
other than the State of Louisiana shall apply to the obligations and
indebtedness secured by this Mortgage. The Mortgagor agrees that any legal
action or proceeding with respect to any of its obligations under this Mortgage
may be brought by the Mortgagee in any state or federal court located in the
State of Louisiana, as the Mortgagee in its sole discretion may elect. By the
execution and delivery of this Mortgage, the Mortgagor submits to and accepts,
for itself and in respect of its property, generally and unconditionally, the
non-exclusive jurisdiction of those courts. The Mortgagor waives any claim that
the State of Louisiana is not a convenient forum or the proper venue for any
such suit, action or proceeding.
23. INDEMNIFICATION. In addition to the indemnification provisions described in
the Section captioned "Environmental Provisions" of this Mortgage, the Mortgagor
agrees to indemnify, defend and hold the Mortgagee, its parent companies,
subsidiaries, affiliates, their respective successors and assigns and each of
their respective shareholders, directors, officers, employees and agents
(collectively the "Indemnified Persons") harmless from and against any and all
loss, liability, obligation, damage, penalty, judgment, claim, deficiency,
expense, interest, penalties, attorneys' fees (including the fees and expenses
of attorneys engaged by the Indemnified Person at the Indemnified Person's
reasonable discretion) and amounts paid in settlement ("Claims") to which any
Indemnified Person may become subject arising out of or relating to this
agreement or the Collateral, except to the limited extent that the Claims are
proximately caused by the Indemnified Person's gross negligence or willful
misconduct. The indemnification provided for in this Section shall survive the
termination of this agreement and shall not be affected by the presence, absence
or amount of or the payment or nonpayment of any claim under, any insurance.
12
The Mortgagor's indemnity obligations under this Section shall not in any way be
affected by the presence or absence of covering insurance, or by the amount of
such insurance or by the failure or refusal of any insurance carrier to perform
any obligation on its part under any insurance policy or policies affecting the
Mortgagor's assets or the Mortgagor's business activities. Should any Claim be
made or brought against any Indemnified Person by reason of any event as to
which the Mortgagor's indemnification obligations apply, then, upon any
Indemnified Person's demand, the Mortgagor, at its sole cost and expense, shall
defend such Claim in the Mortgagor's name, if necessary, by the attorneys for
the Mortgagor's insurance carrier (if such Claim is covered by insurance), or
otherwise by such attorneys as any Indemnified Person shall approve. Any
Indemnified Person may also engage its own attorneys at its reasonable
discretion to defend the Indemnified Person and to assist in its defense and the
Mortgagor agrees to pay the fees and disbursements of such attorneys.
24. INFORMATION WAIVER. The Mortgagor agrees that the Mortgagee may provide any
information or knowledge the Mortgagee may have about the Mortgagor or about any
matter relating to this Mortgage or the Related Documents to JPMorgan Chase &
Co., or any of its subsidiaries or affiliates or their successors, or to any one
or more purchasers or potential purchasers of all or any part of the Liabilities
and/or the Related Documents.
25. HOMESTEAD EXEMPTION WAIVER. If the Mortgagor is an individual, the Mortgagor
and the Mortgagor's spouse declare that he/she/they waive and renounce in favor
of the Mortgagee any homestead exemption and other exemptions from seizure
arising under the laws of Louisiana.
26. WAIVER OF SPECIAL DAMAGES. THE MORTGAGOR WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT THE UNDERSIGNED MAY HAVE TO CLAIM OR RECOVER FROM
THE MORTGAGEE IN ANY LEGAL ACTION OR PROCEEDING ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGES.
26. JURY WAIVER. THE MORTGAGOR AND THE MORTGAGEE (BY ITS ACCEPTANCE HEREOF)
HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT
TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED ON CONTRACT,
TORT, OR OTHERWISE) BETWEEN THE MORTGAGOR AND THE MORTGAGEE ARISING OUT OF OR IN
ANY WAY RELATED TO THIS DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE
MORTGAGEE TO PROVIDE THE FINANCING DESCRIBED HEREIN.
THUS DONE AND PASSED, in my office in ___________________, Louisiana, in the
presence of the undersigned competent witnesses who have signed this Act with
the Mortgagor and me, Notary, after reading of the whole.
WITNESSES: MORTGAGOR:
Blackwater New Orleans, L.L.C.
By: Blackwater Midstream Corp., Manager
By:
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Printed Name Title
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Notary Public
No.
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(Check One):
[_] Notary Identification Number
[_] Attorney Bar Roll Number
13
