Exhibit 10(RR)
STATE OF SOUTH CAROLINA
MORTGAGE, SECURITY AGREEMENT
COUNTY OF XXXXXXXX AND FINANCING STATEMENT
THIS MORTGAGE, SECURITY AGREEMENT AND FINANCING STATEMENT (the
"Mortgage") is made and entered into as of March 20, 1998 , by StarMet CMI
Corporation, its successors and assigns (the "Mortgagor"), in favor of
PALMETTO FEDERAL SAVINGS BANK OF SOUTH CAROLINA, a federal savings bank,
having as an address 000 Xxxxxxxxxxxx Xxxxxx, Xxxxx, Xxxxx Xxxxxxxx 00000,
its successors and assigns (the "Mortgagee").
WITNESSETH:
WHEREAS, Mortgagor is indebted to Mortgagee pursuant to a promissory note of
even date herewith in the original principal amount of Four Hundred
Ninety-five-Thousand and 00/100 DOLLARS ($495,000.00) (together with any and all
extensions, renewals, or modifications thereof, the "Note"); and
WHEREAS, Mortgagor desires to secure its obligations under the Note by
granting, the Mortgagee a first mortgage lien on and security interest in the
real property, improvements, fixtures, and personal property described below;
NOW, THEREFORE, the Mortgagor in consideration of the aforesaid debt, and
also in consideration of the further sum of Three and No/100 ($3.00) Dollars, to
it in hand paid by the Mortgagee, receipt whereof is hereby acknowledged, and
for the purpose of securing, the Obligations (as hereinafter defined), has
granted, bargained, sold, and released, and by these presents, does grant,
bargain, sell and release unto the Mortgagee, its successors and assigns, as
security for the Obligations (as defined below), the land described on Exhibit A
attached hereto and incorporated by reference (the "Land") including all
improvements (the "Improvements") now existing or hereafter placed on the Land;
TOGETHER, with all rights, privileges, interests, easements, tenements,
hereditaments and appurtenances thereto belonging, including without limitation
all right, title and interest of Mortgagor in and to water, minerals, flowers,
shrubs, crops, trees, timber and other emblements now or hereafter located
therein, and the rents, issues and profits thereof, and any and all improvements
and fixtures now or subsequently attached to or used in connection therewith
(collectively, together with the Land, the Improvements, and the Additional
Property (as hereafter defined), the "Mortgaged Property").
TO HAVE AND TO HOLD, all and singular the Mortgaged Property, unto the
Mortgagee, its successors and assigns forever.
AND the Mortgagor covenants with the Mortgagee that the Mortgagor is
indefeasibly seized of a good and marketable fee simple title to said Land
and has good and lawful authority to mortgage said Land; that the Mortgagor
hereby fully warrants the title to said Land and will defend the same
against the lawful claims of all persons whomsoever; and that said Land is
free and clear of all encumbrances except those exceptions set forth on
Exhibit B attached hereto and incorporated by reference.
PROVIDED, ALWAYS, that if the Mortgagor shall pay unto the Mortgagee
the said Obligations (including any future advances); AND if the Mortgagor
shall duly, promptly and fully perform, discharge, execute, effect,
complete and comply with and abide by each and every of the stipulations,
agreements, conditions and covenants therein and in this Mortgage, then
this Mortgage and all assignments contained herein shall cease and be null
and void, otherwise to remain in full force and effect.
THIS MORTGAGE secures (a) the obligations of Mortgagor to Mortgagee
under the Note; (b) any and all advances or expenditures made by Mortgagee
pursuant to the terms of this Mortgage; (c) attorneys' fees, court costs,
and other amounts which may be due under the Note, or this Mortgage; (d)
any and all other indebtedness of Mortgagor to Mortgagee, now existing or
hereafter arising, of whatever class or nature, whether or not now
contemplated by the parties, including future advances pursuant to S.C.
Code Xxx. Section 29-3-50 (as set forth more fully below); and (e) any and
all extensions, renewals, and modifications of any of the foregoing (all of
(a) through (e) being hereinafter referred to the as "Obligations").
Extensions, renewals, and modifications of the debt secured hereby, and
future advances, may bear interest at a rate or rates higher than the rate
borne by the Note.
THIS MORTGAGE shall secure not only existing indebtedness but all
future advances (in accordance with S.C. Code Xxx. Section 29-3-50, as
amended), readvances, and additional indebtedness hereafter arising or
incurred of Mortgagor to Mortgagee, and any notes evidencing the same,
whether such advances or indebtedness is obligatory or to be made at the
option of the Mortgagee, or otherwise, to the, same extent as if such
future advance or indebtedness was made on the date of the execution of
this Mortgage, but the indebtedness secured by this Mortgage shall not
exceed at any one time the maximum principal amount of Four Hundred
Ninety-five Thousand and 00/100 Dollars ($ 495,000.00), plus interest
thereon, reasonable attorneys' fees and court costs, and plus advancements
for taxes, insurance premiums, and repairs made by Mortgagee. All
indebtedness incurred after the date hereof by Mortgagor in favor of
Mortgagee shall be deemed to be a future advance and entitled to the
protection of this provision. Such future indebtedness may bear interest
at a rate or rates greater than the rate set forth in the Note. Interest
on the Note will be deferred, accrued, or capitalized, but Mortgagee shall
not be required to defer, accrue, or capitalize any interest except as
provided in the Note.
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AS FURTHER SECURITY for the Obligations, Mortgagor hereby grants to
Mortgagee, its successors and assigns, a continuing security interest in the
following (the "Additional Property"):
(a) All machinery, apparatus, equipment, fittings, fixtures, and
other personal property (all as defined in the Uniform Commercial Code)
actually or constructively attached to the Land or the Improvements and now
owned or hereafter acquired by the Mortgagor, including, but without
limiting the generality of the foregoing, all heating, air conditioning,
freezing, lighting, pipes; pumps; tanks; motors; conduits; plumbing,
lifting, cleaning, fire prevention, fire extinguishing, refrigerating,
ventilating and communications apparatus, boilers, furnaces, oil burners or
units thereof, ducts and compressors, together with all building materials
and equipment now or hereafter delivered to the Land or the Improvements
and intended to be installed therein;
(b) All of the water, sanitary and storing sewer systems now or
hereafter owned by the Mortgagor which are now or hereafter located by,
over, and/or upon the Land or the Improvements or any part and parcel
thereof, and which water system includes all water mains, service laterals,
hydrants, valves and appurtenances, and which sewer system includes all
sanitary sewer lines, including mains, laterals, manholes and
appurtenances;
(c) All exterior lights, light poles, and related fixtures and
equipment, including, without limitation all parking lot lighting;
(d) All paving for streets, roads, walkways or entrance ways now
or hereafter owned by the Mortgagor and which are now or hereafter located
on the Land or the Improvements or any part or parcel thereof;
(e) Any and all awards or payments, including interest thereon,
and the right to receive the same, as a result of (a) the exercise of the
right of eminent domain, (b) the alteration of the grade of any street, or
(c) any other injury to, taking of, or decrease in the value of the Land or
the Improvements or personal property;
(f) All of the Mortgagor's interest in all utility security
deposits or bonds on the Land or the Improvements or any part or parcel
thereof;
(g) All licenses (including, but not limited to, any operating
"licenses), contracts, management contracts or agreements, franchise
agreements, permits, authorities or certificates required or used in
connection with the ownership of, or the operation or maintenance of the
Improvements;
(h) All names under or by which the Land or the Improvements may
at any time be operated or known, and all rights to carry on business under
any such
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names or any variant thereof, and all trademarks, trade names, patents
pending and goodwill;
(i) All utility service bonds and/or cash deposits, site
improvement bonds and/or cash deposits, building permits, sewer connection
and/or tap-in permits, water connection and/or tap-in permits, curb-cut
permits, utility service agreements, site work agreements with any
governmental authority or public utility, and all other permits, approvals
and contracts of any kind relating to the Land or Improvements;
(j) All warranties and guaranties covering any appliances and
fixtures now or hereafter located on or placed upon the Land or used in
connection with the Improvements including without limitation, air
conditioning, heating and other appliances and equipment;
(k) All surveys, agreements, instruments, contracts, documents
of title, choses in action or intangible property or contract rights of any
kind now existing or hereafter arising or created or entered into related
to the Land or the Improvements or ownership or operation of the Land or
Improvements including, but not limited to, the plans and specifications,
all construction, architectural and other contracts, purchase orders,
permits, approvals, licenses, franchises, trademarks, project logos,
building names, surveys, insurance policies, bonds, escrow funds, easement,
exclusive agency licenses or leases and proceeds of any of the foregoing;
(l) All sales agreements, deposit receipts, escrow agreements
and other ancillary documents and agreements entered into with respect to
the sale to any purchasers of any part of the Land or any buildings or
structures on the Land, together with all deposits and other proceeds of
the sale thereof;
(m) All rents, issues, profits, and revenues from the Mortgaged
Property;
(n) All substitutions and replacements of, and accessions and
additions to, any of the foregoing; and
(o) All proceeds of any of the foregoing, including, without
limitation, proceeds of any voluntary or involuntary disposition or claim
respecting any part thereof (pursuant to judgment, condemnation award or
otherwise) and all goods, documents, general intangibles, chattel paper and
accounts, wherever located, acquired with cash proceeds of any of the
foregoing or proceeds thereof.
AND the Mortgagor does hereby expressly covenant and agree as follows:
I . Assignment of Rents and Profits. As further security for the payment
of the Obligations and for the faithful performance of all the covenants,
agreements, terms and provisions of this Mortgage, Mortgagor hereby sells,
mortgages, transfers and assigns unto
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Mortgagee and grants Mortgagee a security interest in all the right, title and
interest of the Mortgagor in and to the rents, issues, profits, revenues,
royalties, rights and benefits from the above described property, and to that
end Mortgagor hereby assigns and sets over unto the said Mortgagee all leases
and licenses of said premises now made, executed or delivered, whether written
or verbal, or to be hereafter made, be the same written or verbal, and Mortgagor
does hereby authorize and empower the Mortgagee to collect said rents, issues,
profits, revenues, royalties, rights and benefits, as they shall become due, and
does hereby direct each and all of the tenants of the aforesaid premises to pay
such rents, as they may now be due or shall hereafter become due to the said
Mortgagee, upon demand for payment thereof by said Mortgagee; it being
understood and agreed, however, that no such demand shall be made unless and
until there has occurred an Event of Default hereunder; and until such demand is
made, Mortgagor is authorized to collect or continue collecting said rents,
issues, profits, revenues, royalties, rights and benefits; but that such
privilege to collect or continue collecting, as aforesaid by the Mortgagor shall
not operate to permit the collection of any rents more than thirty (30) days in
advance of the date same are due under the terms and provisions of said lease or
leases.
2. After Acquired Property. The Lien of this Mortgage shall
automatically attach, without further act, to all after acquired property
located in or on, or attached to, or used or intended to be used in connection
with or with the operation of the Mortgaged Property or any part thereof, and
shall likewise automatically attach to any and all subsequent or additional
interests Mortgagor may hereafter acquire in the Mortgaged Property.
3. Payment of Obligations. Mortgagor covenants and agrees to pay the
Obligations in accordance with their terms promptly as the principal and
interest thereon shall become due.
4. Maintenance of Property. Mortgagor shall maintain the Mortgaged
Property in good condition and repair and shall neither permit nor allow waste
thereof. Mortgagor shall promptly repair or restore any portion of the
Mortgaged Property which is damaged or destroyed by any cause whatsoever and
shall promptly pay when due all costs and expenses of such repair or
restoration. Mortgagor shall not remove, demolish, or materially alter any
improvement or fixture which is now or hereafter part of the Mortgaged Property
and shall cut no timber on the Mortgaged Property without the express written
consent of Mortgagee. Mortgagee shall be entitled to specific performance of
the provisions of this paragraph.
5. Insurance. Mortgagor shall maintain with respect to all building,
improvements, fixtures, and tangible personal property which are now or
hereafter part of the Mortgaged Property, fire and extended coverage insurance,
including windstorm and hail, and earthquake insurance, and such other hazard
insurance as Lender may require. If any portion of the Mortgaged Property is
located in a federally designated flood plain, Mortgagor shall also obtain a
flood insurance policy in the maximum amount available under the National Flood
Insurance Act of 1968, but not to exceed the replacement value of all buildings
and improvements located on the Mortgaged Property that are located in a
federally designated flood plain. All such insurance shall be payable to
Mortgagee as the interest of Mortgagee may appear pursuant to the New York
standard form of mortgagee clause or such other form of mortgagee clause as may
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be required by the Mortgagee and shall not be cancelable by either the insurer
or the insured without at least thirty (30) days prior written notice to the
Mortgagee. Mortgagor shall keep the Mortgaged Property continuously insured as
herein required and shall deliver to Mortgagee a copy of each policy of
insurance required hereby together with a current certificate of insurance.
Mortgagor shall pay each premium coming due on any such policy of insurance and
will deliver to Mortgagee proof of such payment at least ten (10) days prior to
the date such premium would become overdue or delinquent. Upon the expiration
or termination of any such policy of insurance, Mortgagor shall furnish to
Mortgagee at least ten (10) days prior to such expiration or termination a copy
of a renewal or replacement policy of insurance meeting the requirements hereof
together with a current certificate of insurance. If Mortgagor fails to insure
the Mortgaged Property as herein required, Mortgagee may so insure the Mortgaged
Property in the name of Mortgagor or in the name of Mortgagee or both, and the
premiums for any such insurance obtained by Mortgagee shall be the obligation of
Mortgagor and shall secured by this Mortgage. Upon foreclosure of this
Mortgage, all right, title and interest of Mortgagor in and to any policy of
insurance upon the Mortgaged Property which is in the custody of Mortgagee,
including the right to unearned premiums, shall vest in the purchaser of the
Mortgaged Property at foreclosure, and Mortgagor hereby appoints Mortgagee as
the attorney in fact of Mortgagor to assign all right, title and interest of
Mortgagor in and to any such policy of insurance to such purchaser. This
appointment is coupled with an interest and shall be irrevocable.
6. Proceeds of Insurance. Mortgagor hereby assigns to Mortgagee the
right to collect and receive any indemnity payment otherwise owed Mortgagor upon
any policy of insurance insuring any portion of the Mortgaged Property,
regardless of whether Mortgagee is named in such policy as a person entitled to
collect upon the same. So long as there has occurred no Event of Default
hereunder, or any event which but for the lapse of time or the giving of notice
would constitute an Event of Default, any indemnity payment received by
Mortgagee from any such policy of insurance shall be applied in a manner
reasonably determined by Mortgagee to the replacement, repair or restoration of
the portion of the Mortgaged Property damaged or destroyed. Notwithstanding the
foregoing, if at the time of payment of the insurance proceeds there has
occurred an Event of Default which has not been cured or remedied as permitted
hereunder, or if in the reasonable determination of Mortgagee the insurance
proceeds, together with funds made available by Mortgagor for such purpose, are
insufficient to replace, repair, or restore the Mortgaged Property, then
Mortgagor may apply such proceeds to payment of any sum secured by this Mortgage
in such order as Mortgagee may determine. No portion of any indemnity payment
which is applied to replacement, repair or restoration of any portion of the
Mortgaged Property or which may be released to Mortgagor shall be deemed a
payment against any sums secured by this Mortgage.
7. Taxes. Mortgagor shall pay all taxes, assessments and other charges
which constitute or are secured by a lien upon the Mortgaged Property which is
superior to the lien of this Mortgage and shall deliver to Mortgagee proof of
payment of the same not less than ten (10) days prior to the date the same
becomes delinquent; provided, however, that Mortgagor shall be entitled by
appropriate proceedings to contest the amount of validity of such tax,
assessment or charge so long as the collection of the same by foreclosure of the
lien upon the Mortgaged
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Property is stayed during the pendency of such proceedings and Mortgagor
deposits with the authority to which such tax, assessment or charge is payable
or with the Mortgagee appropriate security for payment of the same, together
with any applicable interest and penalties, should the same be determined due
and owing. Mortgagor shall not claim, demand or be entitled to receive any
credit or credits on the principal or interest payable under the terms of the
Note or on any other Obligations secured hereby, for so much of the taxes,
assessments or similar impositions assessed against the Mortgaged Property or
any part thereof as are applicable to the indebtedness secured hereby or to
Mortgagee's interest in the Mortgaged Property. No deduction shall be claimed
from the taxable value of the Mortgaged Property or any part thereof by reason
of the Note, this Mortgage or any other instrument securing the Note.
8. Advances by Mortgagee Reimbursement. If Mortgagor fails to make
payment for restoration or repair of the Mortgaged Property, for insurance
premiums or for taxes, assessments or other charges as required in this
Mortgage, Mortgagee may, but shall not be obligated to, pay for the same, and
any such payment by Mortgagee will be secured by this Mortgage and have the same
rank and priority as the principal debt secured hereby and bear interest from
the date of payment at the rate provided in the Note. Payments made for taxes
by Mortgagee shall be a first lien on the Mortgaged Property to the extent of
the taxes so paid with interest from the date of payment, regardless of rank or
priority of this Mortgage. Mortgagor shall pay to Mortgagee in cash on demand
an amount equal to any payment made by Mortgagee pursuant to this paragraph plus
interest thereon as herein provided.
9. Extending Time for Payment. Mortgagee, without notice, and as often
as it wishes to, may agree with any party obligated on the Obligations (or any
of them), or having an interest in the Mortgaged Property, to renew or extend
the time for payment of any part or all of the indebtedness secured hereby,
without in any way affecting either the lien hereof or the liability of any
other party.
10. Events of Default. The term "Event of Default," wherever used in
this Mortgage, shall mean any one or more of the following events:
(a) The occurrence of a default under and as defined in the Note, the
giving of any required notice, and the continuation of such default
unremedied beyond any applicable grace period set forth in the Note.
(b) The occurrence of an Event of Default under and as defined in
that certain construction and term loan agreement of even date
herewith between Mortgagor and Mortgagee, the giving of any required
notice, and the continuation of such default unremedied beyond any
applicable grace period set forth in such construction loan agreement.
(c) Failure by the Mortgagor to pay within ten (10) days of the
scheduled payment date any installment of principal and/or interest on
the Obligations or any of them, including but not limited to the Note,
or failure to pay taxes or insurance
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when due, and the continuation of any such failure for ten (10) days
after written notice thereof is provided thereof by Mortgagor to
Mortgagee.
(d) The sale, conveyance, transfer, mortgage, lease or encumbrance of
all or any portion of the Mortgaged Property.
(e) Failure by the Mortgagor to duly observe any other covenant,
condition or agreement of the Obligations, or of this Mortgage, and
the continuation of such failure for a period of thirty (30) days
after written notice thereof is provided by Mortgagee to Mortgagor.
(f) Default in the terms or conditions of any other mortgage which is
a lien upon the Mortgaged Property, and the continuation of such
default beyond any applicable grace period.
(g) The discovery of any material amount of Hazardous Substance (as
hereinafter defined) on the Mortgaged Property, which Mortgagee
reasonably determines has a material, adverse effect on the value of
the Mortgaged Property; provided, however, that the foregoing shall
not be deemed to include petroleum products and related substances
properly stored and used in the ordinary course of business operations
on the Mortgaged Property, and shall further not be deemed to include
minor spills of petroleum and related products having no material,
adverse impact on the value of the Mortgaged Property.
(h) The damage or destruction of a material portion of the
Improvements, which damage or destruction is not promptly repaired or
is not fully covered by insurance.
(i) Mortgagor suffers or permits any lien, encumbrance, or security
interest to arise or attach to the Mortgaged Property that is not
promptly removed or satisfied, or any judgment is entered against
Mortgagor that is not satisfied or appealed and stayed within thirty
days.
(j) Any lien for labor, material, taxes or otherwise shall be filed
against the Mortgaged Property or any part thereof, which lien or
liens shall not be discharged or released within thirty (30) days
after the filing of such lien, whether by payment in satisfaction of
such lien or securing such lien by surety bond.
11. Consequences of Default. If an Event of Default shall occur:
(a) All of the indebtedness secured hereby shall become and be immediately
due and payable at the option of the Mortgagee, without notice or demand, which
are hereby expressly waived, and the Mortgagee may proceed to foreclose this
Mortgage and sell the Mortgaged Property or otherwise pursue any right or remedy
herein or by law provided. At the foreclosure,
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Mortgagee shall be entitled to bid and purchase the Mortgaged Property and shall
be entitled to apply the debt secured hereby, or any portion thereof, in payment
for the Mortgaged Property.
(b) Irrespective of whether Mortgagee accelerates the maturity of all
indebtedness secured hereby, or institutes foreclosure proceedings, Mortgagee
shall be entitled to the appointment of a receiver to enter upon and take and
maintain full control of the Mortgaged Property in order to perform all acts
necessary and appropriate for the operation and maintenance thereof including,
but not limited to, the execution, cancellation or modification of leases, the
making of repairs to the Mortgaged Property and the execution or termination of
contracts providing for the management or maintenance of the Mortgaged Property,
all on such terms as are deemed appropriate to protect the security of this
Mortgage. The receiver shall be entitled to a reasonable fee for so managing
the Mortgaged Property. All rents collected pursuant to this paragraph shall be
applied first to the costs of taking control and managing the Mortgaged Property
and collecting the rents, including but not limited to reasonable attorneys'
fees, receiver's fees, premiums on receiver's bonds, costs of repair to the
Mortgaged Property, premiums on insurance policies, taxes, assessments and other
charges on the Mortgaged Property, and the costs of discharging any liability or
obligation of Mortgagor as lessor or Landlord of the Mortgaged Property and then
to the sums secured by this Mortgage. Mortgagee and the receiver shall have
access to the books and records used in the operation and maintenance of the
Mortgaged Property and shall be liable to account only for those rents actually
received. Mortgagee shall not be liable to Mortgagor, anyone claiming under or
through Mortgagor, or anyone having an interest in the Mortgaged Property by
reason of anything done or left undone by Mortgagee under this paragraph. If
the rents of the Mortgaged Property are not sufficient to meet the costs of
taking control of and managing the Mortgaged Property and collecting the rents,
Mortgagee may at its sole option advance funds to meet the costs. Any funds
expended by Mortgagee for such purposes shall become indebtedness of Mortgagor
to Mortgagee secured by this Mortgage. Such funds shall be payable on demand by
Mortgagee and shall bear interest at the rate provided in the Note. The
entering upon and taking and maintaining of control of the Mortgaged Property by
the Mortgagee or the receiver and the application of the rents as provided
herein shall not cure or waive any default hereunder or invalidate any other
right or remedy of Mortgagee hereunder.
(c) The Mortgagee shall, in addition to all other rights and remedies,
have the rights and remedies of a secured party under the Uniform Commercial
Code, including without limitation, the right to take possession of the
Additional Property, and for that purpose the Mortgagee may: (i) so far as the
Mortgagor can give authority therefor, enter upon any premises on which the
Additional Property may be situated and remove the same therefrom; (ii) take
possession or control of the Additional Property and the premises on which it is
located; (iii) require the Mortgagor to assemble all or any part of the
Additional Property or records concerning the Additional Property and make such
available to the Mortgagee at a place to be designated by the Mortgagee which is
reasonably convenient to both parties; (iv) sell or otherwise dispose of all or
any part of the inventory on any premises where then located without being
liable to the Mortgagor on account of any loss, damage or depreciation that may
occur as a result thereof so long as the Mortgagee shall act in a commercially
reasonable manner; (v) use all trademarks, service marks, trade names, trade
styles, logos, goodwill, trade secrets, franchises,
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licenses and patents which the Mortgagor now has or may hereafter acquire,
including the right to use or license the use of said marks, names, styles,
logos and goodwill in connection with the sale of goods or the rendering of
services, in the conduct of service, advertising, promotion and the like; and
(vi) lease or license third persons or entities for such purpose. Unless the
Additional Property is perishable or threatens to decline speedily in value or
is of a type customarily sold on a recognized market, the Mortgagee shall give
to the Mortgagor at least thirty (30) days' prior written notice (which
Mortgagor agree is "reasonable notification" within the meaning of Section 9-504
of the Uniform Commercial Code of the State of South Carolina) of the time and
place of any public sale or any other intended disposition of the Additional
Property is to be made.
12. Marshalling of Assets. The Mortgagee shall not be required to marshal
any present or future security for (including but not limited to this Mortgage,
and the Mortgaged Property), or guaranties of, the Obligations or any of them,
or to resort to such security of guaranties in any particular order; and all of
the rights hereunder and in respect of such security and guaranties shall be
cumulative and in addition to all other rights, however existing or arising. To
the extent that it lawfully may, the Mortgagor hereby agrees that it will not
invoke any law relating to the marshalling of collateral which might cause delay
in or impede the enforcement of the Mortgagee's rights under this Mortgage or
under any other instrument evidencing any of the Obligations or under which any
of the Obligations is secured or guaranteed, and to the extent that it lawfully
may the Mortgagor hereby irrevocably waives the benefits of all such laws.
13. Costs and Expenses. All reasonable costs and expenses (including
attorneys' fees) incurred or paid by the Mortgagee in connection with
enforcement of the Obligations or the exercise by the Mortgagee of any of its
rights or remedies hereunder, or in retaking, holding, preparing for sale and
selling or otherwise realizing upon any of the Mortgaged Property, including,
without limitation, the reasonable attorneys' fees and expenses of any attorney
to whom this matter is referred (whether or not litigation is commenced), or for
representation in proceedings under any bankruptcy or insolvency law, or in case
the Mortgagee has become a party either as plaintiff or as defendant in any suit
or legal proceeding in relation to the Mortgaged Property or the lien created
herein, shall be repaid by the Mortgagor to the Mortgagee upon demand, with
interest at the rate provided in the Note. In the event said expenses are not
paid by the Mortgagor to the Mortgagee, they shall become part of the
Obligations and shall be secured hereby.
14. Interest. It is agreed that nothing herein contained nor any
transaction related thereto shall be construed or so operate as to require the
Mortgagor to pay interest at a rate greater than is now lawful in such case to
contract for, or to make any payment or to do any act contrary to laws, that if
any clauses or provisions herein contained operated or would prospectively
operate to invalidate this Mortgage or the Note in whole or in part, then such
clauses and provisions only shall be held for naught, as though not herein
contained, and the remainder of this Mortgage shall remain operative and in full
force and effect.
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15. Eminent Domain. The Mortgagee shall be entitled to receive and recover
the entire award made in any eminent domain proceedings to the extent that the
same does not exceed the amount necessary to pay in full all sums secured by the
lien of this Mortgage.
16. Transfer of Property. Mortgagor shall not sell, convey, transfer,
mortgage, lease or further encumber, nor suffer or permit the sale, conveyance,
transfer, mortgage, lease or encumbrance, whether voluntarily or by operation of
law, of any interest in or any part of the Mortgaged Property, the rents and
profits therefrom, or the Additional Property, without the prior written consent
of Mortgagee. If any person or entity should obtain any interest in all or any
part of the Mortgaged Property pursuant to the execution or enforcement any
lien, security interest or other right, whether superior, equal or subordinate
to this Mortgage or the lien hereof, such event shall unless otherwise provided
herein be deemed to be a transfer by Mortgagor. Mortgagor shall not, without
the prior written consent of the Mortgagee, further assign the rents from the
Mortgaged Property nor enter into any agreement or do any act to amend, modify,
extend, terminate or cancel, accept the surrender, subordinate, accelerate the
payment of rent, or change the terms of any renewal option of any lease now or
hereafter covering such property or any part thereof which would in each
instance or in the aggregate materially affect the collateral or the operation
of the Mortgagor or the Mortgaged Property or the ability of the Mortgagor to
repay the Note.
17. Further Assurances. The Mortgagor shall, at its sole expense, do,
make, execute and deliver all such additional and further acts, things, deeds,
assurances and instruments, in each case in form and substance, satisfactory to
the Mortgagee, relating to the creation, validity, or perfection of the mortgage
lien and security interests provided for in this Agreement under the Uniform
Commercial Code or other laws of the State of South Carolina or of any other
state or states in which Mortgagor is doing business or in which any of the
Mortgaged Property is located as the Mortgagee may from time to time reasonably
request, and shall take all such other action as the Mortgagee may reasonably
require more completely to vest in any and assure to the Mortgagee its rights
hereunder or in any of the Mortgaged Property, including without limitation
execution and delivery of financing statements which the Mortgagee deems
appropriate to perfect and continue the security interest hereby granted; and
the Mortgagor hereby irrevocably authorizes the Mortgagee, or its designee, at
the Mortgagor's sole expense, to execute and file such financing statements,
with or without the Mortgagor's signature, as the Mortgagee may deem
appropriate. In the event that any recording or refiling (or the filing of any
statement of continuation of any mortgage lien or financing statement) or any
repledge, or any other action, is required at any time to protect and preserve
such security interests, the Mortgagor shall, at its sole expense, cause the
same to be done or taken at such time and in such manner as may be necessary and
as may be reasonably requested by the Mortgagee.
18. Inspections; Easement. Mortgagor hereby agrees that Mortgagee shall
have the right, at any time during the term of this Mortgage, to conduct an
environmental investigation of the Mortgaged Property, either itself or by or
through designated agents and may exercise such rights from time to time, and in
furtherance of such rights, Mortgagor hereby grants to Mortgagee, its successors
and assigns, a non-exclusive limited easement over and across the
11
Mortgaged Property, and its subsurface, for access to the Mortgaged Property and
for the purpose of conducting an environmental investigation of such Mortgaged
Property, provided that any such investigation shall be conducted in such a
manner as to not disrupt the Mortgagor's operations on the Mortgaged Property.
The satisfaction of, or the release of a portion of the Mortgaged Property,
shall evidence a termination of the easement granted herein in full, or as to
the Mortgaged Property released, as the case may be. This easement is
irrevocable so long as this Mortgage is outstanding.
19. Environmental Covenants. The Mortgagor hereby covenants and agrees
with Mortgagee as follows:
(a) Mortgagor will not use, generate, manufacture, produce, store,
release, discharge, or dispose of on, under or about the Mort-aged Property or
transport to or from the Mortgaged Property any material amount of any Hazardous
Substance (as defined herein) or allow any other person or entity to do so, and
shall keep and maintain the Mortgaged Property in compliance with, and shall not
cause or permit the Mortgaged Property to be in violation of any Environmental
Law (as defined herein). Notwithstanding the foregoing, Mortgagor and its
tenants may use and store petroleum and related products in the ordinary course
of business operations on the Mortgaged Property, provided that such use and
storage is in substantial compliance with applicable laws and regulations.
(b) Mortgagor shall give prompt written notice to Mortgagee of: i)
any material proceeding or inquiry by any governmental authority with respect to
the presence of any Hazardous Substance (other than petroleum and related
products properly stored and used in the ordinary course of business) on the
Mortgaged Property, an adverse determination of which could have a material
adverse affect on the value of the Mortgaged Property; ii) all material claims
made or threatened by any third party against Mortgagor or the Mortgaged
Property relating to any loss or injury resulting from any Hazardous Substance,
which if established, could have a material adverse affect on the value of the
Mortgaged Property or the financial condition of Mortgagor or any tenant); and
iii) Mortgagor's discovery of any occurrence or condition on any real property
adjoining or in the vicinity of the Mortgaged Property that could cause the
Mortgaged Property or any part thereof to be subject to any material restriction
on the ownership, occupancy, transferability, or use of the Mortgaged Property
under any Environmental Law.
(c) Mortgagor shall protect, indemnify, and hold harmless Mortgagee, its
directors, officers, employees, agents, successors, and assigns from and against
any and all loss, damage, cost, expense, or liability (including attorneys' fees
and costs) directly or indirectly arising out of or attributable to the use,
generation, manufacture, production, storage, release, threatened release,
discharge, disposal, or presence of a Hazardous Substance on, under, or about
the Mortgaged Property including without limitation (i) all foreseeable
consequential damages; and (ii) the costs of any required or necessary repair,
cleanup or detoxification of the Mortgaged Property and the preparation and
implementation of any closure, remedial, or other required plans. This
indemnity shall survive the extinguishment of the lien by foreclosure or deed in
lieu thereof, and this covenant shall survive such reconveyance or
extinguishment.
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(d) In the event that any investigation, site monitoring, containment,
cleanup, removal, restoration, or other remedial work of any kind or nature (the
"Remedial Work") is reasonably necessary or desirable under any applicable
local, state, or federal law or regulation, any judicial order, or by any
governmental or nongovernmental entity or person because of, or in connection
with, the current or future presence, suspected presence, release or suspected
release of a Hazardous Substance in or into the air, soil, groundwater, surface
water or soil vapor at, on, about, under or within the Mortgaged Property (or
any portion thereof), Mortgagor shall within thirty (30) days after written
demand for performance thereof by Mortgagee (or such shorter period of time as
may be required under any applicable law, regulation, order, or agreement),
commence to perform, or cause to be commenced, and thereafter diligently
prosecuted to completion, all such Remedial Work. All Remedial Work shall be
performed by one or more contractors, approved in advance in writing by
Mortgagee, and under the supervision of a consulting engineer approved in
advance in writing by Mortgagee. All costs and expenses of such Remedial Work
shall be paid by Mortgagor including, without limitation, the charges of such
contractor(s) and/or the consulting engineer, and Mortgagee's reasonable
attorneys' fees and costs incurred in connection with monitoring or review of
such Remedial Work. In the event Mortgagor shall fail to timely commence, or
cause to be commenced, or fail to diligently prosecute to completion, such
Remedial Work, Mortgagee may, but shall not be required to, cause such Remedial
Work to be performed and all costs and expenses thereof, or incurred in
connection therewith, shall become part of the indebtedness secured hereby.
(e) Mortgagee is authorized by itself, its agents, employees or workmen to
enter at any reasonable time, after three (3) days prior notice, upon any part
of the Mortgaged Property for the purposes of inspecting the same for Hazardous
Substances and Mortgagor's compliance with this Section and such inspections may
include, without limitation, soil borings. Mortgagor agrees to pay to
Mortgagee, upon Mortgagee's demand, all expenses, costs or other amounts
incurred by Mortgagee in performing any reasonably necessary inspection for the
purposes set forth in this clause.
(f) "Environmental Laws" shall mean any federal, state or local law,
statute, ordinance, or regulation pertaining to health, industrial hygiene, or
the environmental conditions on, under or about the Mortgaged Property,
including without limitation the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 ("CERCLA") as amended, 42 U.S.C.
Sections 9601 et seq., the Resource Conservation and Recovery Act of 1976
("RCRA"), 42 U.S.C. Sections 6901 et seq. The term "Hazardous Substances" shall
include without limitation: i) those substances included within the definitions
of "hazardous substances", "hazardous materials," "toxic substances," or "solid
waste" in CERCLA, RCRA, and the Hazardous Materials Transportation Act, 49 U.S.
C. Sections 1801 et seq., and in the regulations promulgated pursuant to said
laws; ii) those substances listed in the United States Department of
Transportation Table (49 CFR 172. 101 and amendments thereto) or by the
Environmental Protection Agency (or any successor agency) as hazardous substance
(40 CFR Part 302.4 and amendments thereto); iii) such other substances,
materials and wastes which are or become regulated under applicable local, state
or federal law, or the United States government, or which are classified as
hazardous or toxic under federal, state, or local laws or regulations; and iv)
any
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material, waste or substance which is (A) petroleum, (B) asbestos, (C)
polychlorinated biphenyls, (D) designated as a "hazardous substance" pursuant
to, Section 311 of the Clean Water Act, 33 U.S.C. 1251 et M. (33 U.S.C. 1321) or
listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. 1317); (E)
flammable explosives; or (F) radioactive materials.
(g) Mortgagee and its successors and assigns are hereby granted an
easement to enter, after three (3) days prior notice, and to authorize others to
enter upon the Land for the purposes of conducting environmental investigations
and audits (including taking physical samples) and such other action deemed
necessary by Mortgagee to insure compliance by Mortgagor with all local, state
or federal laws, rules or regulations. Mortgagor acknowledges that no adequate
remedy at law exists for a violation of the easement granted herein and agrees
that Mortgagee is entitled to specific performance of its rights under this
easement. The easement granted herein shall continue until this Mortgage is
cancelled or released of record.
20. Environmental Representations and Warranties. To induce the Mortgagee
to make the Loan evidenced by the Note, the Mortgagor makes the following
representations and warranties:
(a) The Mortgagor's business operations on the Mortgaged
Property and the Mortgaged Property are in substantial compliance with all
Environmental Laws;
(b) There has been no material enforcement, clean up, remedial,
removal, or other governmental or regulatory action, proceeding, or inquiry
instituted with respect to the Mortgagor's business operations or the
Mortgaged Property, except for minor spills of petroleum and related
products having no material, adverse impact on the value of the Mortgaged
Property;
(c) There have been no material claims made or threatened by any
third party against the Mortgagor relating to any damage, contribution,
cost recovery compensation, loss, or injury resulting from any Hazardous
Material used in the Mortgagor's business operation or located on the
Mortgaged Property;
(d) No portion of the property consists of filled land; and
(e) The property does not contain any Hazardous Materials,
except for petroleum and related products properly stored and used in the
ordinary course of business operations on the Mortgaged Property.
21. Additional Assessments. The Mortgagor shall pay when due the cost of
providing to Mortgagee, at Mortgagee's request from time to time, a then-current
environmental site assessment, audit, or survey ("Assessment") of the Mortgaged
Property which Assessment shall be prepared by an environmental auditor
acceptable to Mortgagee, in Mortgagee's sole discretion; provided, however, that
Mortgagee shall make such request no more frequently than once every third year
unless the loan evidenced by the Note is being renewed, extended, modified, or
accelerated, or unless Mortgagee is required by any law, regulation, order, or
other directive from
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any regulatory agency having jurisdiction over Mortgagee to obtain any such
Assessment more frequently than once a year.
22. Governing Law. This instrument is to be governed by and construed in
accordance with the laws of the State of South Carolina and each of the remedies
provided for herein shall be cumulative so that the right of the Mortgagee to
exercise one or more of such remedies shall not be construed to limit or
preclude the right of the Mortgagee to exercise any other remedy or remedies set
forth herein.
23. No Waiver. No delay by Mortgagee in exercising any right or remedy
hereunder, or otherwise afforded by law, shall operate as a waiver thereof or
preclude the exercise thereof during the continuance of any default hereunder.
24. Miscellaneous. The covenants herein contained shall bind, and the
benefits and advantages shall inure to the respective heirs, executors,
administrators, successors and assigns of the parties hereto. Wherever used,
the singular number shall include the plural, the plural the singular, and the
use of any gender shall include all genders.
25. Benefits to Mortgagor. The undersigned Mortgagor represents to
Mortgagee that the Mortgagor is benefitted by the loans evidenced by the Note,
whether or not the Mortgagor is the obligor thereon, and that adequate and
sufficient consideration has been given to Mortgagor for its execution and
delivery of this Mortgage.
26. Security Agreement. This Mortgage creates a lien on the Mortgaged
Property, and to the extent the Mortgaged Property is not real property under
applicable law this Mortgage constitutes a security agreement under the South
Carolina Uniform Commercial Code and any other applicable law.
27. No Derogation. The grant of a security interest to Mortgagee in the
granting clauses of this Mortgage shall not be construed to derogate from or
impair the lien or provisions of or the rights of Mortgagee under this Mortgage
with respect to any property described therein which is real property or which
the parties have agreed to treat as real property. The hereby stated intention
of the Mortgagor and Mortgagee is that everything used in connection with the
production of income from such real property or adapted for use thereon is, and
at all times and for all purposes and in all proceedings, both legal and
equitable, shall be regarded as real property, irrespective of whether or not
the same is physically attached to the land or the improvements thereon. If
required by Mortgagee, at any time during the term of this Mortgage, Mortgagor
will execute and deliver to Mortgagee, in form satisfactory to Mortgagee,
additional security agreements, financing statements and/or other instruments
covering all personal property or fixtures of Mortgagor which may at any time be
furnished, placed on, or annexed or made appurtenant to the real property or
used, useful or held for use, in the operation of the Improvements.
28. Personal Property. As to any part of the Mortgaged Property
constituting personal property, Mortgagee may proceed as to such personal
property in accordance with Mortgagee's
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rights and remedies in respect to such property or sell the personal property
separately and without regard to the remainder of the Mortgaged Property in
accordance with Mortgagee's rights and remedies provided by the South Carolina
Uniform Commercial Code as well as other rights and remedies available at law or
in equity.
29 Financing Statements. With respect to those items of the Additional
Property which are or are to become fixtures related to the herein described
real estate, this Mortgage shall constitute a financing statement filed as a
fixture filing. The lien upon fixtures granted herein and perfected hereby
shall be in addition to and not in lieu of any lien upon fixtures acquired under
real property law.
30. Notices. Whenever this Mortgage requires or permits any notice,
request or demand by one party to the other, the notice, request or demand must
be in writing and shall be deemed to have been given if it is enclosed in an
envelope addressed to the party to be notified at the address stated below (or
such other address as may have been designated by written notice) properly
stamped, sealed, and deposited in the United States mail as certified or
registered mail, return receipt requested. The address of each party for the
purposes of this Section are as follows:
If to the Mortgagor: StarMet CMI Corporation
P. 0. Xxx 0000 Xxxxxxxx
XX 00000
Attn:
If to the Lender: Palmetto Federal Savings Bank Of S.C.
Xxxx Xxxxxx Xxx 0000
Xxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxx
31. Mortgagor Information. The Mortgagor shall maintain full and correct
books and records showing in detail the earnings and expenses of the Mortgaged
Property and shall permit or cause the Mortgagor to permit the Mortgagee and its
representatives of examine said books and records and all supporting vouchers
and data at any time and from time to time upon reasonable request by the
Mortgagee.
32. Satisfaction and Release of Assignment of Rents. The release of all
or any part of the Mortgaged Property from the lien of this Mortgage shall be
deemed a release of such property from the lien of the Assignment of Leases,
Rents, and Profits and Security Agreement of even date herewith executed by the
Mortgagor in favor of the Mortgagee.
33. Severability. If any provision hereof should be held unenforceable or
void, then such provision shall be deemed separable from the remaining
provisions and shall in no way affect the validity of this Mortgage except that
if such provision relates to the payment of any
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monetary sum, then, Mortgagee may, at its option, declare the indebtedness and
all other sums secured hereby immediately due and payable.
34. Construction Mortgage. This Mortgage secures an obligation incurred
for the construction of an improvement on land and is intended to be a
"construction mortgage" as defined in S.C. Code Xxx. Section 36-9-313, as
amended.
35. Instrument Under Seal. This Mortgage is intended to be and shall be
construed as an instrument under seal.
36. WAIVER OF STAY. IN THE EVENT OF THE COMMENCEMENT OF BANKRUPTCY
PROCEEDINGS BY OR AGAINST THE MORTGAGOR, TO THE EXTENT PERMITTED BY LAW,
MORTGAGOR HEREBY WAIVES THE BENEFIT OF THE AUTOMATIC STAY PROVIDED FOR BY 11
U.S.C. Section 362 AND/OR ANY STAY, INJUNCTION, OR RESTRAINING ORDER ISSUED
PURSUANT TO 11 U.S. C. Section 105 OR OTHERWISE. TO THAT END, MORTGAGOR AGREES
THAT IT WILL NOT SEEK OR ASSERT ANY SUCH STAY, INJUNCTION, OR RESTRAINING ORDER
AND MORTGAGOR HEREBY IRREVOCABLY CONSENTS TO AND AGREES NOT TO OPPOSE THE
MODIFICATION OF ANY SUCH STAY TO ALLOW FOR THE ENFORCEMENT BY MORTGAGEE OF THIS
MORTGAGE AND THE FORECLOSURE OR OTHER REALIZATION UPON THE COLLATERAL PROVIDED
FOR HEREIN.
37. WAIVER OF JURY TRIAL. MORTGAGOR, ANY OTHER OBLIGORS, AND THE MORTGAGEE
EACH WAIVE TRIAL BY JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING
ON OR ARISING OUT OF THIS NOTE, THE OBLIGATIONS, THE CONDUCT OF THE RELATIONSHIP
BETWEEN MORTGAGEE AND MORTGAGOR, AND/OR THE CONDUCT OF THE RELATIONSHIP BETWEEN
MORTGAGEE AND ANY OBLIGORS. ANY LITIGATION ARISING HEREUNDER OR RELATED HERETO
MAY BE TRIED BY THE SOUTH CAROLINA COURTS FOR XXXXXXXX COUNTY OR THE FEDERAL
COURTS OF SOUTH CAROLINA, MORTGAGOR HEREBY CONSENTS TO THE JURISDICTION OF SUCH
COURTS.
38. WAIVER OF APPRAISAL RIGHTS. The laws of South Carolina provide that in
any real estate foreclosure proceeding a defendant against whom a personal
judgment is taken or asked may within thirty days after the sale of the
mortgaged property apply to the court for an order of appraisal. The statutory
appraisal value as approved by the court would be substituted for the high bid
and may decrease the amount of any deficiency owing in connection with the
transaction. THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY
APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL
BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE MORTGAGED
PROPERTY.
IN WITNESS WHEREOF, the Mortgagor has hereunto set its Hand and Seal
as of the date first written above.
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/s/ Miles Xxxxxxxx STARMET CMI CORPORATION
------------------------
By: /s/ Xxxxx X. Xxxxxxx
------------------------ --------------------------
Xxxxx X. Xxxxxxx
CFO
SOUTH CAROLINA
BARNWELL COUNTY
I, Miles Xxxxxxxx, Notary Public for South Carolina, do hereby certify
that Starmet CMI Corporation a Delaware Corporation, by Xxxxx X. Xxxxxxx its
Chief Financial Officer, personally appeared before me this day and
acknowledged the due execution of the foregoing instrument.
Witness my hand and official seal this the 20th day of March, 1998
/s/ Miles Xxxxxxxx
-----------------------------
Notary Public for South Carolina
My Commission Expires:
----------------
18
"EXHIBIT A"
THIS IS AN ADDENDUM ATTACHED TO AND MADE A PART OF A REAL ESTATE MORTGAGE FROM
STARMET CMI CORPORATION TO PALMETTO FEDERAL SAVINGS BANK OF SOUTH CAROLINA DATED
MARCH 20, 1998.
All that certain tract of land, with improvements thereon, containing 270 acres,
situate in Barnwell (Red Oak) School District, County of Xxxxxxxx, State of
South Carolina, and being more fully shown and delineated on plat prepared for
Carolina Metals, Inc. by X. X. Xxx & Associates, R.L.S., dated November 18,
1981, and recorded in Plat Cabinet A, Slide 1, at Page 6, in the office of the
Clerk of Court for Xxxxxxxx County, which plat is incorporated into this
description by reference thereto and to which plat reference is made by a metes
and bounds description of said land. Said tract is bounded generally, now or
formerly, as follows: North by lands of Catawba Newsprint Company; East by S.C.
Highway S-6-80; South by lands of the Xxxxxx Estate and lands of Catawba
Newsprint Company; and West by lands of the United States Atomic Energy
Commission.
Being the same premises conveyed to Carolina Metals, Inc., now known as StarMet
CMI Corporation, by deed of Catawba Newsprint Company dated November 20, 1981,
and recorded November 23, 1981, in Deed Book 16-L, a Page 34, in the office of
the Clerk of Court for Xxxxxxxx County.
19
