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EXHIBIT 10.70
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MORTGAGE, ASSIGNMENT OF LEASES
AND SECURITY AGREEMENT
Dated as of April 1, 1997
from
THE INDUSTRIAL DEVELOPMENT BOARD
OF THE CITY OF DEMOPOLIS
and
XxXXXXX OF ALABAMA, INC.
to
LaSALLE NATIONAL BANK
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THIS DOCUMENT WAS PREPARED BY:
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MORTGAGE, ASSIGNMENT OF LEASES
AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF LEASES AND SECURITY AGREEMENT dated as of
April 1, 1997 is entered into by THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY
OF DEMOPOLIS, a public corporation organized under the laws of the State of
Alabama (the "Board") and XxXXXXX OF ALABAMA, INC., an Alabama corporation (the
"Company"), (the Board and the Company being hereinafter sometimes together
referred to as the "Mortgagors"), for the benefit of LaSALLE NATIONAL BANK, a
national banking association (the "Credit Obligor").
Recitals
Simultaneously with the execution and delivery hereof, the Board will
issue its $_________ Industrial Revenue Bonds, XxXxxxx of Alabama, Inc., Series
1997 (the "Bonds") pursuant to a Trust Indenture dated as of April 1, 1997 (the
"Indenture") between the Board and LaSalle National Bank (the "Trustee"). The
proceeds of the Bonds will be used to construct a manufacturing plant (the
"Plant") on certain real property owned by the Board (the "Project Site") and
to acquire and install in the Plant and elsewhere on the Project Site certain
items of machinery, equipment and other personal property (the "Equipment").
Simultaneously with the delivery of the Bonds, the Board and the
Company will enter into a Lease Agreement dated as of April 1, 1997 (the "Lease
Agreement"), whereby the Board will lease the Project Site, the Plant and the
Equipment (together, the "Project") to the Company and the Company will agree
to pay rentals to the Board at such times and in such amounts as shall be
sufficient (i) to pay when due the principal of, premium (if any), and interest
("Debt Service") on the Bonds and the purchase price of Bonds tendered for
purchase pursuant to the mandatory or optional tender provisions of the
Indenture and (ii) to pay certain additional amounts to the Board with respect
to the Project Site.
The Bonds shall be limited obligations of the Board payable solely out
of the rentals payable by the Company pursuant to the Lease Agreement and any
other revenues and receipts derived by the Board from the leasing or sale of
the Project (the "Lease Revenues").
As security for the payment of Debt Service on the Bonds, the Company
will enter into a Bond Guaranty Agreement dated as of April 1, 1997 (the "Bond
Guaranty") in favor of the Trustee, whereby the Company will guarantee payment
when due of Debt Service on the Bonds.
As additional security for the payment of the Bonds, the Company will
cause LaSalle National Bank (in its capacity as issuer of the initial Letter of
Credit referred to below, herein
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called the "Credit Obligor") to issue an irrevocable letter of credit (the
"Letter of Credit') in favor of the Trustee in the amount of (i) the aggregate
principal amount of the Bonds, to enable the Trustee to pay the principal
amount of Bonds when due and to pay the principal portion of the purchase price
of Bonds tendered (or deemed tendered) to the Trustee for purchase, (ii)
interest on the Bonds for a period of 45 days at the rate of 12% per annum, to
enable the Trustee to pay interest on the Bonds when due and to pay the
interest portion of the purchase price of Bonds tendered (or deemed tendered)
to the Trustee for purchase and (iii) 3% of the principal of the Bonds, to
enable the Trustee to pay premium due upon the redemption of the Bonds under
certain circumstances.
The Letter of Credit will be issued by the Credit Obligor pursuant to
a Credit Agreement dated as of April 1, 1997 (the "Credit Agreement") between
the Credit Obligor and the Company, whereby the Company will, agree, among
other things, to reimburse the Credit Obligor for all amounts drawn by the
Trustee pursuant to the initial Letter of Credit.
As security for the Company's obligations under the Credit Agreement,
the Company and the Board shall execute this instrument in favor of the Credit
Obligor, whereby the Credit Obligor will be granted a mortgage, assignment and
pledge of, and security interest in, the Project, the rights of the Board and
the Company under the Lease Agreement, the Lease Revenues, and certain other
collateral.
NOW, WHEREFORE, in consideration of the foregoing recitals and to
induce the Credit Obligor to enter into the Credit Agreement and to issue the
Letter of Credit, and to secure the prompt payment of all amounts due under the
Credit Agreement and this Mortgage, and also to secure the full and complete
performance of each and every obligation, covenant, duty and agreement of the
Mortgagors contained in this Mortgage and of the Company contained in the
Credit Agreement:
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ARTICLE 1
Definitions and Other Provisions
of General Application
SECTION 1.1 Definitions For all purposes of this Mortgage, except as
otherwise expressly provided or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings
assigned to them in this Article. Singular terms shall include the
plural as well as the singular and vice versa.
(2) The definition in the recitals to this instrument are
for convenience only and shall not affect the construction, hereof.
(3) All references in this instrument to designated
"articles", "sections" and other subdivisions are to the designated
articles, sections and subdivisions of this instrument as originally
executed.
(4) The terms "herein", "hereof" and "hereunder and other
words of similar import refer to this Mortgage as a whole and not to
any particular article, section or other subdivision.
(5) All references in this instrument to a separate
instrument are to such separate instrument as the same may be amended
or supplemented from time to time pursuant to the applicable
provisions thereof.
(6) The term "person" shall include any individual,
corporation, partnership, joint venture, association, trust,
unincorporated organization and any government or any agency or
political subdivision thereof.
Additional Rent shall mean the Rental Payments payable pursuant to
Sections 5.3 and 5.4 of the Lease Agreement.
Basic Rent shall mean the Rental Payments payable pursuant to Section
5.2 of the Lease Agreement.
Bond Guaranty shall mean that certain Bond Guaranty Agreement dated as
of April 1, 1997, executed by the Company in favor of the Trustee.
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Bonds shall mean the $_________ aggregate principal amount of
Industrial Revenue Bonds, XxXxxxx of Alabama, Inc. Series 1997 issued by the
Board pursuant to the Indenture.
Collateral shall mean all property and, rights mortgaged, assigned or
pledged pursuant to, or otherwise subject to the lien of, this Mortgage.
Condemnation Awards shall have the meaning stated in the fourth
Granting Clause of Article 2.
Credit Agreement shall mean that certain Credit Agreement dated as of
April 1, 1997 between the Company and the Credit Obligor.
Credit Obligor shall mean LaSalle National Bank, an Alabama banking
corporation, and its successors and assigns.
Equipmentshall have meaning stated in the third Granting Clause of
Article 2.
Event of Default shall have the meanings stated in Section 7.01
hereof. An Event of Default shall "exist" if an Event of Default shall have
occurred and be continuing.
Financing Documents shall mean the Indenture, the Lease Agreement, the
Bond Guaranty, the Credit Agreement and this Mortgage.
Indentureshall mean that certain Trust Indenture dated as of April 1,
1997 between the Board and the Trustee.
Board shall mean The Industrial Development Board of the City of
Auburn, a public corporation organized under the laws of the State of Alabama,
and its successors and assigns.
Lease Agreement shall mean that certain Lease Agreement dated as of
April 1, 1997, between the Board and the Company.
Lease Revenues shall mean all Rental Payments and all other revenues,
rentals or receipts derived by the Board from the leasing or sale of the
Project.
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Letter of Creditshall mean the letter of credit with respect to the
Bonds to be issued by the Credit Obligor in favor of the Trustee pursuant to
the Credit Agreement.
Mortgage shall mean this instrument as originally executed or as it
may from time to time be supplemented, modified or amended by one or more
instruments entered into pursuant to the applicable provisions hereof.
Mortgagors shall mean the Board and the Company.
Obligations shall mean:
(i) all letter of credit commissions, fees, charges and
costs becoming due and payable under the Credit Agreement in
accordance with the terms thereof,
(ii) all amounts becoming due and payable under the Credit
Agreement in accordance with the terms thereof as reimbursement of
sums paid by the Credit Obligor under the Letter of Credit;
(iii) all interest becoming due and payable under the
Credit Agreement in accordance with the terms thereof;
(iv) all amounts becoming due and payable under the Credit
Agreement in accordance with the terms thereof upon the occurrence and
continuance of an event of default, as therein defined, under the
Credit Agreement;
(v) all amounts payable by the Company under the Credit
Agreement as reimbursement of increased cost to the Credit Obligor
caused by changes in laws or regulations or in the interpretation
thereof;
(vi) all other amounts payable by the Company under the
Credit Agreement;
(vii) all amounts payable by the Company under the terms of
this Mortgage (including but not limited to reimbursement for
advancements made by the Credit Obligor under this Mortgage) and any
other security agreements, pledge agreements or other documents now or
hereafter evidencing or securing the Company's performance of its
obligations under the Credit Agreement; and
(viii) all renewals and extensions of any or all the
obligations of the Company described in the foregoing clauses (i)
through (vii) (including without limitation any renewal or extension
of, and any substitute for, the Letter of Credit), whether or not any
renewal or extension agreement is executed in connection therewith.
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Permitted Encumbrances shall mean (i) the Indenture; (ii) the Lease
Agreement; (iii) liens for taxes, assessments and other governmental charges
that are not delinquent or that are being contested in good faith by
appropriate proceedings; (iv) mechanics', materialmen's or other similar liens
arising in the ordinary course of business, securing obligations that are not
delinquent or that are being contested in good faith by appropriate
proceedings; (y) liens in respect of judgments or awards with respect to which
an appeal or other proceedings for review are being prosecuted in good faith
and with respect to which a stay of execution pending such appeal or
proceedings for review has been secured; and (vi) restrictions, exceptions,
reservations, conditions, limitations, interests and other matters that are
identified in Exhibit B to this Mortgage.
Personal Property and Fixtures shall mean the Equipment and all other
personal property and fixtures constituting part of the Collateral.
Plant means the manufacturing plant to be constructed on the Project
Site out of the proceeds of the Bonds.
Project shall mean (i) the Project Site, (ii) the Plant and (iii) the
Equipment.
Project Sitemeans the real property described in the first Granting
Clause of Article 2.
Rental Payments shall mean the Basic Rent and the Additional Rent.
Rents shall have the meaning suited in the ninth Granting Clause of
Article 2.
Special Funds shall mean all funds and accounts established pursuant
to the Indenture, including without limitation the Debt Service Fund, and the
Bond Purchase Fund and the Construction Fund established pursuant to the
Indenture.
Subleasesshall have the meaning stated in the ninth Granting Clause of
Article 2.
Trusteeshall mean LaSalle National Bank, a national banking
association, in its capacity as trustee under the Indenture, and its successors
and assigns.
Company shall mean XxXxxxx of Alabama, Inc., an Alabama corporation,
and its successors and assigns.
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SECTION 1.2 Effect of Headings and Table of Contents. The article
and section headings herein and in the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 1.3 Date of Mortgage. The date of this Mortgage is intended
as and for a date for the convenient identification of this Mortgage and is not
intended to indicate that this Mortgage was executed and delivered on said
date.
SECTION 1.4 Severability Clause. If any provision in this Mortgage
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.5 Governing Law. This Mortgage shall be construed in
accordance with and governed by the laws of the State of Alabama.
SECTION 1.6 Counterparts. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed an original,
but all such counterparts shall together constitute but one and the same
instrument.
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ARTICLE 2
Granting Clause
The Mortgagors have bargained and sold and do hereby grant, bargain,
sell and convey to the Credit Obligor, its successors and assigns, the
following property and interests in property, and have granted and do hereby
grant to the Credit Obligor a security interest in said property and interests
in property:
I.
(Project Site)
[Insert Property Description]
II.
(Equipment for Project)
The personal property and fixtures described in Exhibit A attached
hereto and all other personal property and fixtures acquired or to be acquired
by the Board with proceeds of the Bonds or pursuant to any provision of the
Lease Agreement, including all substitutions and replacements for such personal
property and fixtures and the, proceeds thereof (herein referred to as the
"Equipment").
III.
(Company's Other Equipment)
All personal property and fixtures now owned or hereafter acquired by
Company, or in which the Company has or shall hereafter acquire any interest,
that are located on or in the property constituting a part of the Project or
that are used or useful in connection with the business of the Company
conducted at the Project.
IV.
(Condemnation Awards)
All awards or payments, including all interest thereon, together with
the right to receive the same, that may be made to the Board or the Company
with respect to the Collateral as a result of the exercise of the right of
eminent domain, any damage to or destruction of the Collateral or any pan
thereof, or any other injury to or decrease in the value of the Collateral
(herein referred to as "Condemnation Awards"), and all right, title and
interest of the Board or
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the Company in and to any policies of insurance (and the proceeds thereof) with
respect to any damage to or destruction of the Collateral.
V.
(Rental Payments With Respect to Project)
All Rental Payments and all other revenues, rentals and receipts
derived by the Board from the leasing or sale of the Project, except for
Additional Rent payable to the Board or the Trustee; provided, however, that
unless and until the Bonds are accelerated pursuant to Section 10.2(a) of the
Indenture and the Credit Obligor pays the draw on the Letter of Credit made
pursuant to Section 10.2(a) of the Indenture, all Rental Payments with respect
to debt service on the Bonds shall be applied as provided in the Lease
Agreement and the Indenture.
VI.
(Rights of Board Under Lease Agreement)
All right, title and interest of the Board in and to the Lease
Agreement (except for (i) rights of the Board to indemnification, reimbursement
of expenses or Additional Rent payable to the Board, and (ii) rights of the
Board to receive notices or other communications thereunder), together with all
powers, privileges, options and other benefits of the Board contained in the
Lease Agreement; provided, however, that nothing contained in this clause shall
impair, diminish or otherwise affect the Board's obligations under the Lease
Agreement or impose any such obligations on the Credit Obligor.
VII.
(Special Funds)
Money and investments from time to time on deposit in, or forming a
part of, the Special Funds (as defined in the Indenture), subject to the
provisions of the Indenture permitting the application thereof for the purposes
and on the terms and conditions set forth therein.
VIII.
(Leasehold Estate of Company in Project)
The Company's leasehold estate and all other rights, title and
interests of the Company under and pursuant to the Lease Agreement, together
with all the rights, privileges and options set forth therein (including but
not limited to the options set forth in Article XI of the Lease Agreement).
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IX.
(Subleases and Rents)
(a) All written or oral subleases or other agreements for the use
or occupancy of all or any portion of the Collateral with respect to which the
Company is the sublessor and any and all extensions and renewals thereof, now
or hereafter existing (collectively, the "Subleases");
(b) Any and all guaranties of performance by sublessee under the
Subleases;
(c) The immediate and continuing right to collect and receive all
the rents, income, receipts, revenues, issues and profits now due or that may
hereafter become due or to which the Company may now be or may hereafter
(including during the period of redemption, if any) become entitled to demand
or claim, arising or issuing from or out of the Subleases or from or out of the
Collateral, or any part thereof, including but not limited to minimum rents,
additional rents, percentage rents, common area maintenance charges, parking
charges, tax and insurance premium contributions, liquidated damages upon
default, the premium payable by any sublessee upon the exercise of any
cancellation privilege provided for in any of the Subleases, and all proceeds
payable under any policy of insurance covering loss of rents resulting from
untenantability caused by destruction or damage to the Collateral, together
with any and all rights and claims of any kind that the Company may have
against any such sublessee under the Subleases or against any sub-sublessee, or
occupants of the Collateral, all such moneys, rights and claims described in
this subparagraph (c) being hereinafter referred to as the "Rents"; provided,
however, that so long as no Event of Default has occurred under this Mortgage,
the Company shall have the right under a license granted hereby (but limited as
provided in Section 8.07 below) to collect, receive and retain the Rents (but
not prior to accrual thereof); and
(d) Any award, dividend or other payment made hereafter to the
Company in any court procedure involving any of the sublessee under the
Subleases in any bankruptcy, insolvency or reorganization proceeding in any
state or federal court and any and all payments made by sublessee in lieu of
rent, the Company hereby appointing the Credit Obligor as their irrevocable
attorney-in-fact to appear in any action and collect any such award, dividend
or other payment.
X.
Any and all other real or personal property of every kind and nature
from time to time hereafter by delivery or by writing of any kind conveyed,
mortgaged, pledged, assigned or transferred to the Credit Obligor as and for
additional security hereunder by the Mortgagors, or any of them, or by anyone
in the behalf of, or with the written consent of, the Mortgagors, or any of
them.
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All of the property described in the foregoing Granting Clauses is
herein sometimes together referred to as the "Collateral."
TO HAVE AND TO HOLD the Collateral, together with all the rights,
privileges and appurtenances thereunto belonging, unto the Credit Obligor, its
successors and assigns, forever.
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ARTICLE 3
Representations and Warranties
To induce the Credit Obligor to enter into the Credit Agreement and to
issue the Letter of Credit, the Mortgagors, jointly and severally, represent
and warrant that:
(1) Valid Title, etc. The Board is lawfully seized of an
indefeasible estate in fee simple in and to, and good title to, the Project
Site, subject to the Lease Agreement; the Company is lawfully seized of a valid
leasehold estate, under the terms of the Lease Agreement, in the Project Site;
the Mortgagors have a good right to sell and mortgage, and grant a security
interest in, the Collateral; the Collateral is subject to no liens,
encumbrances or security interests other than Permitted Encumbrances; and the
Mortgagors will forever warrant and defend the title to the Collateral unto the
Credit Obligor against the claims of all persons whomsoever, except those
claiming under Permitted Encumbrances. It is expressly understood and agreed
that, with respect to the Special Funds, the lien and security interest created
by this Mortgage is junior and subordinate to the lien and security interest
created by the Indenture.
(2) Compliance by Board with Terms of Lease Agreement and
Indenture. The Board shall comply, fully and faithfully, with all of its
obligations under the Lease Agreement and Indenture. If the Board shall fail
or refuse to do so, the Credit Obligor may, but shall not be required to,
perform any or all of such obligations of the Board under the Lease Agreement
and Indenture, including, but not limited to, the payment of any or all sums
due from the Board thereunder. Any sums so paid by the Credit Obligor shall
constitute part of the Obligations and shall be secured hereby.
(3) Maintenance of Lien Priority. The Mortgagors shall take all
steps necessary to preserve and protect the validity and priority of the liens
on and security interests in the Collateral created hereby. The Mortgagors
shall execute, acknowledge and deliver such additional instruments as the
Credit Obligor may deem necessary in order to preserve, protect, continue,
extend or maintain the lien and security interest created hereby as a lien on
and security interest in the Collateral subject only to Permitted Encumbrances,
except as otherwise permitted under the terms of this Mortgage. All costs and
expenses incurred in connection with the protection, preservation,
continuation, extension or maintaining of the liens and security interests
hereby created shall be paid by the Company.
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ARTICLE 4
Covenants of Company
SECTION 4.1 Payment of Taxes and Other Assessments. The Company will
pay or cause to be paid all taxes, assessments and other governmental,
municipal or other public dues, charges, fines or impositions imposed or levied
upon the Collateral or on the interests created by this Mortgage or with
respect to the filing of this Mortgage, and any tax or excise on rents or other
tax, however described, assessed or levied by any state, federal or local
taxing authority as a substitute, in whole or in part, for taxes assessed or
imposed on the Collateral or on the lien and other interests created by this
Mortgage, and at least 10 days before said taxes, assessments and other
governmental charges are due, the Company will deliver receipts therefor to the
Credit Obligor or, in the case of mortgage filing privilege taxes, pay to the
Credit Obligor an amount equal to the taxes. The Company may, at its own
expense, in good faith contest any such taxes, assessments and other
governmental charges and, in the event of any such contest, may permit the
taxes, assessments or other governmental charges so contested to remain unpaid
during the period of such contest and any appeal therefrom, provided that
during such period enforcement of such contested items shall be effectively
stayed.
SECTION 4.2 Insurance. (a) The Company shall obtain and maintain
insurance against liability for bodily injury and property damage and against
loss or damage by fire and other hazards and casualties arising or occurring
with respect to the Project and the Personal Property and Fixtures, with such
limits and coverage as the Credit Obligor may from time to time require, and in
any event including:
(1) insurance against loss or damage to the Project,
Personal Property and Fixtures by fire, lightning, water and wind,
with uniform standard extended coverage endorsement limited only as
may be provided in the standard form of extended coverage endorsement
at the time in use in the State of Alabama, to the extent of the full
insurable value of such property, but in any event not less than the
Credit Amount (as defined in the Credit Agreement);
(2) rental or business interruption insurance in amounts
sufficient to pay, during any period of up to 6 months in which the
Project, Personal Property and Fixtures may be damaged or destroyed,
to the Credit Obligor all amounts required by this Mortgage and the
Credit Agreement;
(3) steam boiler, machinery and other similar insurance
of the types and in amounts not less than customarily carried by
persons owning or operating like properties;
(4) if any part of the Project, Personal Property and
Fixtures is located in a flood hazard area designated as such under
the national flood insurance program, flood insurance to the extent of
the maximum limit of coverage made available with respect to such
property under such program; and
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(5) insurance against liability for bodily injury to or
death of persons and for damage to or loss of property occurring on or
about or with respect to the Project, Personal Property and Fixtures
in the minimum amount of $5,000,000 combined single limit coverage.
(b) All such policies of casualty insurance shall be in such
companies as shall be satisfactory to the Credit Obligor and shall name the
Credit Obligor as a named insured and provide that any losses payable
thereunder shall (pursuant to loss payable clauses, in form and content
acceptable to the Credit Obligor, to be attached to each policy) be payable to
the Credit Obligor, and provide that the insurance provided thereby, as to the
interest of the Credit Obligor, shall not be invalidated by any act or neglect
of the Mortgagors, nor by the commencing of any proceedings by or against any
of the Mortgagors in bankruptcy, insolvency, receivership or any other
proceedings for the relief of a debtor, nor by any foreclosure, repossession or
other proceedings relating to the property insured, nor by any occupation of
such property or the use of such property for purposes more hazardous than
permitted in the policy.
(c) The Company shall furnish to the Credit Obligor insurance
certificates, in form and substance satisfactory to the Credit Obligor,
evidencing compliance by it with the terms of this Section and, upon the
request of the Credit Obligor at any time, the Company shall furnish the Credit
Obligor with photostatic copies of the policies required by the terms of this
Section. The Company will cause each insurer under each of the policies to
agree (either by endorsement upon such policy or by letter addressed to the
Credit Obligor) to give the Credit Obligor at least 10 days' prior written
notice of the cancellation of such policies in whole or in part or the lapse of
any coverage thereunder.
(d) The Mortgagors agree that they will not take any action or
fail to take any action which action or inaction would result in the
invalidation of any insurance policy required hereunder. At least 10 days
prior to the date the premiums on each such policy or policies shall become due
and payable, the Company shall furnish to the Credit Obligor evidence of the
payment of such premiums.
(e) With respect to all such casualty insurance, the Credit
Obligor is hereby authorized, but not required, on behalf of the Mortgagors, to
collect for, adjust or compromise any losses under any such insurance policies
and to apply, at its option, the loss proceeds (less expenses of collection) on
the Obligations, in any order and whether or not then due, or hold such
proceeds as a reserve against the Obligations, or apply such proceeds to the
restoration of the property affected, or release the same to the Mortgagors;
but no such application, holding in reserve or release shall cure or waive any
default by the Mortgagors. In case of a sale pursuant to the foreclosure
provisions hereof, or any conveyance of all or any part of the Project,
Personal Property and Fixtures in extinguishment of the Obligations, complete
title to all insurance policies on the Collateral and the unearned premiums
with respect thereto shall pass to and vest in the purchaser or grantee of such
property.
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SECTION 4.3 Condemnation Awards. The entire proceeds of any
Condemnation Award shall be paid to the Credit Obligor and, after first
applying such award to the payment of all costs and expenses (including
attorneys' fees) reasonably incurred by the Credit Obligor in the collection
thereof, the Credit Obligor may, at its option, apply the balance to the
payment of the Obligations in any order and whether or not then due, or hold
such balance as a reserve against the Obligations, or apply such balance to the
restoration or replacement of the Collateral, or release such balance to the
Mortgagors. No such application, holding in reserve or release shall cure or
waive any default of the Mortgagors.
SECTION 4.4 Waste, Demolition, Alteration or Replacement. The
Company will cause the Collateral and every part thereof to be maintained,
preserved and kept in safe and good repair, working order and condition, will
not commit or permit waste thereon, will not remove, demolish or materially
alter the design or structural character of any building now or hereafter
erected on the Project Site without the express prior written consent of the
Credit Obligor, will comply with all laws and regulations of any governmental
authority with reference to the Collateral and the manner and use of the same,
and will from time to time make all necessary and proper repairs, renewals,
additions and restorations thereto so that the value and efficient use thereof
shall be preserved and maintained. The Company agree not to remove any of the
fixtures or personal property included in the Collateral, without the express
prior written consent of the Credit Obligor and unless the same is immediately
replaced with like property of at least equal value and utility.
SECTION 4.5 Compliance by Company with Term of Lease. The Company
shall comply, fully and faithfully, with all of its obligations under the Lease
Agreement, so as to keep the Lease Agreement in full force and effect. If the
Company fails or refuses, to do so, the Credit Obligor may, but shall not be
required to, perform any and all of such obligations of the Company under the
Lease Agreement, including but not limited to the payment of any or all rent
and other sums due from the Company thereunder. Any rent or other sums so paid
by the Credit Obligor shall constitute part of the Obligations and shall be
secured hereby.
SECTION 4.6 Hazardous Materials and Related Matters. (a) The
Company represents and warrants that it is currently in compliance with, and
covenants and agrees that it and all other persons who manage, use, operate or
occupy the Project, Personal Property and Fixtures shall comply with, all
federal, soft and local laws, regulations and orders regulating health, safety
and environmental matters, including without limitation air pollution, soil and
water pollution and the use, generation, storage, handling or disposal of
hazardous material (defined below in this Section).
(b) The Company shall not generate, handle, use, store, treat,
discharge, release or dispose of any hazardous material at the Project without
the express written approval of the Credit Obligor.
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(c) Credit Obligor shall have the right at any time to conduct an
environmental audit of the Project, and the Company agrees to cooperate in the
conduct of such audit.
(d) Company agrees to indemnify and hold harmless Credit Obligor
from and against all losses, liabilities, penalties, claims and other costs of
any kind or of any nature (including without limitation the fees and expenses
of counsel for the Credit Obligor) which may at any time be imposed upon,
incurred by or asserted against Credit Obligor in connection with or arising
from or out of the breach of any warranty, covenant or agreement or the
inaccuracy of any representation contained in this Section. The covenant of
indemnification contained in this Section shall survive the payment of the
Obligations.
(e) For purposes of this Section the term "hazardous material"
shall mean any hazardous, toxic or dangerous waste, substance or material
defined as such in (or for purposes of) the Comprehensive Environmental
Response, Compensation and Liability Act of the United States Congress, or in
any other law, regulation or order, now or hereafter in effect, of any
governmental authority regulating, or imposing liability or standards of
conduct relating to, any hazardous, toxic or dangerous waste, substance or
material.
18
ARTICLE 5
Transfer of, or Liens on, Collateral
SECTION 5.1 Prohibition Against Transfers and Liens. The Mortgagors
covenant and agree that they will not, without the express prior written
consent of the Credit Obligor, sell, transfer, convey or otherwise dispose of,
or create, or permit or suffer to exist, any lien, security interest or other
encumbrance (other than Permitted Encumbrances) on, all or any part of the
Collateral (including but not limited to any leases and rents) or any interests
therein, it being expressly understood and agreed that a violation by the
Mortgagors or either of them of the provisions of this Article 5 shall
constitute an Event of Default under this Mortgage. Any sale, transfer,
conveyance, other disposition or act of creating, permitting or suffering to
exist any lien, security interest or other encumbrance in violation of this
Article 5 shall be null, void and of no effect.
19
ARTICLE 6
Defeasance
If (i) the Company shall pay in full and discharge all the
Obligations; and (ii) the Mortgagors shall then have kept and performed each
and every obligation, covenant, duty, condition and agreement herein or in the
Credit Agreement (or both) imposed on or agreed to by them; and (iii) the
Letter of Credit shall then be terminated; then this Mortgage and the grants
and conveyances contained herein shall become null and void, and the Collateral
shall revert to the Mortgagors, and the entire estate, right, title and
interest of the Credit Obligor shall thereupon cease; and the Credit Obligor
shall, upon the request of the Mortgagors and at the cost and expense of the
Company, deliver to the Mortgagors proper instruments acknowledging
satisfaction of this instrument and terminating all financing statements filed
in connection herewith; otherwise, this Mortgage shall remain in full force and
effect. Notwithstanding anything to the contrary contained in this Article 6
or elsewhere in this Mortgage, it is expressly understood and agreed that,
although there may be from time to time occasions when no Obligations shall be
outstanding, this Mortgage and the lien thereof and security interests created
thereby shall nevertheless remain in full force and effect, and none of the
estate, right, title and interest of the Credit Obligor passing by this
Mortgage shall divest nor shall the Collateral revert to the Mortgagors, so
long as any one or more or all of the following circumstances exist:
(1) the Credit Obligor has any obligation to issue the
Letter of Credit; or
(2) the Letter of Credit has been issued and is
outstanding; or
(3) any Obligations are outstanding.
20
ARTICLE 7
Events of Default
SECTION 7.1 Events of Default. Any one or more of the following
shall constitute an event of default (an "Event of Default") under this
Mortgage (whatever the reason for such event and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the performance, or breach, of any
covenant, condition or agreement on the part of the Mortgagors
contained in Sections 4.01, 4.02, 4.04 or 5.01 hereof, or
(2) default in the performance, or breach, of any
covenant or warranty of the Mortgagors in this Agreement (other than a
covenant or warranty, a default in the performance or breach of which
is elsewhere in this Section specifically dealt with), and the
continuance of such default or breach for a period of 30 days after
there has been given, by registered or certified mail, to the
Mortgagors by the Credit Obligor a written notice specifying such
default or breach and requiring it to be remedied and stating that
such notice is a "notice of default" hereunder; or
(3) the occurrence of an event of default, as therein
defined, under any other Financing Document and the expiration of the
applicable grace period, if any, specified therein; or
(4) the interest of the Credit Obligor in the Collateral
shall become endangered by reason of the enforcement of any prior lien
or encumbrance thereon (other than the lien of the Indenture with
respect to the Special Funds); or
(5) the lien or security interest created by this
Mortgage is invalid or unenforceable as to any part of the Obligations
or is invalid or unenforceable as to any part of the Collateral.
21
ARTICLE 8
Rights of Credit Obligor Upon Default
SECTION 8.1 Acceleration of Indebtedness, etc. If an Event of
Default exists, the Credit Obligor may notify the Trustee that an event of
default, as therein defined, under the Credit Agreement has occurred and is
continuing (it being understood that the occurrence of an Event of Default
hereunder shall constitute an event of default under the Credit Agreement) and
may, by notice to the Mortgagors, affective upon dispatch, declare all of the
Obligations, including but not limited to the obligation of the Company to
reimburse the Credit Obligor under the Credit Agreement, to be forthwith due
and payable, whereupon all the Obligations shall become and be forthwith due
and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Mortgagors, and the
Credit Obligor may immediately enforce payment of all such amounts and exercise
any or all of its rights and remedies under this Mortgage and the Credit
Agreement.
SECTION 8.2 Operation of Collateral by Credit Obligor. In addition
to all other rights herein and in the Credit Agreement conferred on the Credit
Obligor, if an Event of Default exists, the Credit Obligor (or any person, firm
or corporation assigned by the Credit Obligor) may, but shall not be obligated
to, enter upon and take possession of any or all of the Collateral, exclude the
Mortgagors therefrom, and hold, use, administer, manage and operate the same to
the extent that the Mortgagors could do so, without any liability to the
Mortgagors resulting therefrom; and the Credit Obligor may collect, receive and
receipt for all proceeds accruing from such operation and management, make
repairs and purchase needed additional property, and exercise every power,
right and privilege of the Mortgagors with respect to the Collateral.
SECTION 8.3 Judicial Proceedings: Right to Receiver. If an Event of
Default exists, the Credit Obligor, in lieu of or in addition to exercising the
power of sale hereinafter given, may proceed by suit for a foreclosure of its
lien on and security interest in the Collateral, to xxx the Company for damages
on account of or arising out of said default or breach, or to xxx the
Mortgagors or any of them for specific performance of any provision contained
herein, or to enforce any other appropriate legal or equitable right or remedy,
whether under this Mortgage, the Credit Agreement or otherwise. The Credit
Obligor shall be entitled, as a matter or right, upon xxxx filed or other
proper legal proceedings being commenced for the foreclosure of this Mortgage,
to the appointment of any competent court or tribunal, without notice to the
Mortgagors or any other party, of a receiver of the rents, issues and profits
of the Collateral, with power to lease and control the Collateral and with such
other powers as may be deemed necessary, subject to the rights of the Trustee
under the Indenture.
SECTION 8.4 Foreclosure Sale. This Mortgage shall be subject to
foreclosure and may be foreclosed as now provided by law in case of past due
mortgages, and the Credit Obligor shall be authorized, at its option, whether
or not possession of the Collateral is taken, to sell the Collateral (or such
part or parts thereof as the Credit Obligor may from time to time elm to sell)
under the power of sale which is hereby given to the Credit Obligor, at public
outcry, to the
22
highest bidder for cash, at the front or main door of the courthouse of the
county in which the real property to be sold, or a substantial and material
part thereof, is located, after first giving notice by publication once a week
for three successive weeks of the time, place and terms of such sale, together
with a description of the Collateral to be sold, by publication in some
newspaper published in the county or counties in which the real property to be
sold is located. If there is real property to be sold in more than one county,
publication shall be made in all counties where the real property to be sold is
located, but if no newspaper is published in any such county, the notice shall
be published in a newspaper published in an adjoining county for three
successive weeks. The sale shall be hold between the hours of 1:00 a.m. and
4:00 p.m. on the day designated for the exercise of the power of sale
hereunder. The Credit Obligor, its successors and assigns, may bid at any sale
or sales had under the terms of the Mortgage and may Purchase the Collateral,
or any part thereof, if the highest bidder therefor. The purchaser at any such
sale or sales shall be under no obligation to see to the proper application of
the purchase money. At any foreclosure sale any part or all of the Collateral,
real, personal or mixed, may be offered for sale in parcels or en masse for one
total price, the proceeds of any such sale an masse to be accounted for in one
account without distinction between the items included therein or without
assigning to them any proportion of such proceeds, the Mortgagors hereby
waiving the application of any doctrine of marshalling or like proceeding. If
the Credit Obligor, in the exercise of the power of sale herein given, elects
to sell the Collateral in parts or parcels, sees thereof may be held from time
to time, and the power of sale granted herein shall not be fully exercised
until all of the Collateral not previously sold shall have been sold or all the
Obligations shall have been paid in full. The Mortgagors hereby waive any
equitable rights otherwise available to any of them with respect to marshalling
of assets hereunder, so as to require separate sales of the fee estate and the
leasehold estate encumbered hereby or to require the Credit Obligor to exhaust
its remedies against either the fee estate or the leasehold estate before
proceeding against the other; and the Mortgagors hereby expressly consent to
and authorize, at the option of the Credit Obligor, the sale, either separately
or together, of the fee estate and leasehold estate, or otherwise the merger,
prior to sale, of the leasehold estate into the fee estate in order that the
fee estate may be sold free and clear of the leasehold estate. Without in any
way limiting the generality of the foregoing provisions of this Section, it is
expressly agreed that the Credit Obligor may, at its option, sell the part of
the Collateral described in Granting Clause VII above separately from the
remainder of the Collateral.
SECTION 8.5 Personal Property and Fixtures. (a) The Credit Obligor
shall have and may exercise with respect to any or all personal property and
fixtures included in the Collateral (the "Personal Property and Fixtures"), all
rights, remedies and powers of a secured party under the Alabama Uniform
Commercial Code with reference to the Personal Property and Fixtures or any
other items in which a security interest has been granted herein, including
without limitation the right and power to sell at public or private sale or
sales or otherwise dispose of, lease or utilize the Personal Property and
Fixtures and any part or parts thereof in any manner, to the fullest extent
authorized or permitted under the Alabama Uniform Commercial Code after default
hereunder, without regard to preservation of the Personal Property and Fixtures
or its value and without the necessity of a court order. The Credit Obligor
shall have, among other rights, the right to take possession of the Personal
Property and Fixtures and to enter upon any premises where the same may be
situated for the purpose of repossessing the same without being guilty of
trespass and without liability for damages occasioned thereby and to take any
action deemed appropriate or desirable by the Credit Obligor, at its option and
in its sole discretion,
23
to repair, restore or otherwise prepare the Personal Property and Fixtures for
sale or lease or other use or disposition. To the extent permitted by law, the
Mortgagors, expressly waive any notice of sale or any other disposition of the
Personal Property and Fixtures and any rights or remedies of the Credit Obligor
with respect to, and the formalities prescribed by law relative to, the sale or
disposition of the Personal Property and Fixtures or to the exercise of any
other right or remedy of the Credit Obligor existing after default. To the
extent that such notice is required and cannot be waived, the Mortgagors agree
that if such notice is given to the Mortgagors in accordance with the
provisions of Section 9.08 below, at least 5 days before the time of the sale
or other disposition, such notice shall be deemed reasonable, and shall fully
satisfy any requirement for giving said notice.
(b) The Mortgagors agree that the Credit Obligor may sell or
dispose of the Personal Property and Fixtures in accordance with the rights and
remedies granted under this Mortgage with respect to the real property covered
hereby. The Mortgagors hereby grant to the Credit Obligor the right, at its
option after default by the Mortgagors, to transfer at any time to itself or
its nominee the Personal Property and Fixtures or any part thereof and to
receive the monies, income, proceeds and benefits attributable to the same and
to hold the same as additional Collateral or to apply it on the Obligations in
such order and manner as the Credit Obligor may elect. The Mortgagors covenant
and agree that all recitals in any instrument transferring, assigning, leasing
or making other disposition of the Personal Property and Fixtures or any part
thereof shall be full proof of the matters stated therein, and no other proof
shall be required to establish the legal propriety of the sale or other action
taken by the Credit Obligor and that all prerequisites of sale shall be
presumed conclusively to have been performed or to have occurred.
SECTION 8.6 Conveyance After Sale. The Mortgagors, hereby authorize
and empower the Credit Obligor or the auctioneer at any foreclosure sale had
hereunder, for and in the name of the Mortgagors, to execute and deliver to the
purchaser or purchasers of any of the Collateral sold at foreclosure good and
sufficient deeds of conveyance or bills of sale thereto.
SECTION 8.7 Rents and Subleases. (a) If an Event of Default exists,
the Credit Obligor, at its option, shall have the right, power and authority to
exercise and enforce any or all of the following rights and remedies with
respect to Rents and Subleases):
(1) to terminate the license granted to the Company in
Article 2 hereof to collect the Rents, and, without taking possession,
in the Credit Obligor's own name to demand, collect, receive, xxx for,
attach and Levy the Rents, to give proper receipts, releases and
acquittances therefor, and after deducting all necessary and
reasonable costs and expenses of collection, including reasonable
attorney's fees, to apply the net proceeds thereof to the Obligations
in such order and amounts as the Credit Obligor may choose (or hold
the same in a reserve as security for the Obligations);
(2) without regard to the adequacy of the security, with
or without any action or proceeding, through any person or by agent,
or by a receiver to be appointed by court, to enter upon, take
possession of, manage and operate the Collateral or any part
24
thereof for the account of the Mortgagors, make, modify, force, cancel
or accept surrender of any Sublease, remove and evict any sublessee or
sub-sublessee, increase or reduce rents, decorate, clean and make
repairs, and otherwise do any act or incur any cost or expenses the
Credit Obligor shall deem proper to protect the security hereof, as
fully and to the same extent as the Mortgagors could do if in
possession, and in such event to apply any funds so collected to the
operation and of the Collateral (including payment of reasonable
management, brokerage and attorney's fees) and payment of the
Obligations in such order and amounts as the Credit Obligor may choose
(or hold the same in reserve as security for the Obligations);
(3) to take whatever legal proceedings may appear
necessary or desirable to enforce any obligation or covenant or
agreement of the Mortgagors under this Mortgage.
(b) The collection of the Rents and application thereof (or
holding thereof in reserve) as aforesaid or the entry upon and taking
possession of the Collateral or both shall not cure or waive any default or
waive, modify or affect any notice of default under this Mortgage, or
invalidate any act done pursuant to such notice, and the enforcement of such
right or remedy by the Credit Obligor, once exercised, shall continue for so
long as the Credit Obligor shall elect, notwithstanding that the collection and
application aforesaid of the Rents may have cured the original default. If the
Credit Obligor shall thereafter elect to discontinue the exercise of any such
right or remedy, the same or any other right or remedy hereunder may be
reasserted at any time and from time to time following any subsequent default.
SECTION 8.8 Application of Proceeds. All payments then held or
thereafter received by the Credit Obligor as proceeds of the Collateral, as
well as any and all amounts realized by the Credit Obligor in connection with
the enforcement of any right or remedy under or with respect to this Mortgage,
shall be applied by the Credit Obligor as follows:
(1) to reimburse the Credit Obligor for any payments made
by the Credit Obligor under the Letter of Credit, to accrued but
unpaid commissions, fees, costs and charges under the Credit
Agreement, and to the payment of all costs and expenses of any kind
then or thereafter at any time reasonably incurred by the Credit
Obligor in exercising its rights under this Mortgage and under the
Credit Agreement or otherwise reasonably incurred by the Credit
Obligor in collecting or enforcing payment of the Obligations, as well
as to the payment of any other amount then or thereafter at any time
owing by the Company to the Credit Obligor under the Credit Agreement
or under this Mortgage, all in such priority as among such principal,
interest, costs, fees, expenses and other amounts as the Credit
Obligor shall elect;
(2) any balance remaining after payment in full of all
amounts referred to in paragraph (1) above shall be applied by the
Credit Obligor to any other Obligations then owing by the Company to
the Credit Obligor;
(3) any balance remaining after payment in full of all
amounts referred to in paragraphs (1) and (2) above shall be held by
the Credit Obligor as a cash collateral
25
reserve against the making of any payment under the Letter of Credit
(if then outstanding); and
(4) any balance remaining after payment in full of all
amounts referred to in paragraphs (1), (2) and (3) above shall be paid
by the Credit Obligor to the Mortgagors or to whoever else may then be
legally entitled thereto.
SECTION 8.9 Multiple Sales. The Credit Obligor shall have the option
to proceed with foreclosure, either through the courts or by proceeding with
foreclosure as provided for in this Mortgage, but without declaring all of the
Obligations due. Any such sale may be made subject to the unmatured part of
the Obligations, and such sale, if so made, shall not in any manner affect the
unmatured part of the Obligations, but as to such unmatured part of the
Obligations this Mortgage shall remain in full force and effect as though no
sale had been made under the provisions of this Section. Several sales may be
made under the provisions of this Section without exhausting the right of sale
for any remaining part of the Obligations whether then matured or unmatured,
the purpose hereof being to provide for a foreclosure and sale of the
Collateral for any matured part of the Obligations without exhausting any power
of foreclosure and the power to sell the Collateral for any other part of the
Obligations, whether matured at the time or subsequently maturing.
SECTION 8.10 Waiver of Appraisement Laws. The Mortgagors waive, to
the fullest extent permitted by law, the benefit of all laws now existing or
hereafter enacted providing for (i) any appraisement before sale of any portion
of the Mortgaged property (commonly known as appraisement laws) or (ii) any
extension of time for the enforcement of the collection of the Obligations or
any creation or extension of a period of redemption from any sale made in
collecting the Obligations (commonly known as stay laws and redemption laws).
26
ARTICLE 9
Miscellaneous Provisions
SECTION 9.1 Waiver, Election, etc. The exercise by the Credit
Obligor of any option given under the terms of this Mortgage shall not be
considered as a waiver of the right to exercise any other option given herein,
and the filing of a suit to foreclose the lien and security interest granted by
this Mortgage, either on any matured portion of the Obligations or for the
whole of the Obligations, shall not be considered an election so as to preclude
foreclosure under power of sale after a dismissal of the suit; nor shall the
publication of notices for foreclosure preclude the prosecution of a later suit
thereon. No failure or delay on the part of the Credit Obligor in exercising
any right, power or remedy under this Mortgage shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder or thereunder. The remedies provided in
this Mortgage and in the Credit Agreement are cumulative and not exclusive of
any remedies provided by law. No amendment, modification, termination or
waiver of any provisions of this Mortgage or the Credit Agreement, nor consent
to any departure by the Mortgagors, therefrom, shall be effective unless the
same shall be in writing and signed by an executive officer of the Credit
Obligor, and then such waiver of consent shall be effective only in the
specific instance and for the specific purpose for which given. No notice to
or demand on the Mortgagors or any of them in any case shall entitle the
Mortgagors or any of them to any other or further notice or demand in similar
or other circumstances.
SECTION 9.2 Landlord-Tenant Relationship. Any sale of the Collateral
under this Mortgage shall, without further notice, create the relationship of
landlord and tenant at sufferance between the purchaser and the Mortgagors,
subject to the provisions of the Lease Agreement.
SECTION 9.3 Enforceability. If any provision of this Mortgage is now
or at any time hereafter becomes invalid or unenforceable, the other provisions
hereof shall remain in full force and effect, and the remaining provisions
hereof shall be construed in favor of the Credit Obligor to effectuate the
provisions hereof.
SECTION 9.4 Application of Payments. If the lien or the security
interest created by this Mortgage is invalid or unenforceable as to any part of
the Obligations or is invalid or unenforceable as to any part of the
Collateral, the unsecured or partially secured portion of the Obligations shall
be completely paid prior to the payment of the remaining and secured or
partially secured portion of the Obligations, and all payments made on the
Obligations, whether voluntary or under foreclosure or other enforcement action
or procedures, shall be considered to have been first paid on and applied to
the full payment of that portion of the Obligations that is not secured or not
fully secured by the hen or security interest created hereby.
27
SECTION 9.5 Advances by Credit Obligor. If the Mortgagors shall fail
to comply with the provisions hereof with respect to the securing of insurance,
the payment of taxes, assessments and other charges, the keeping of the
Collateral in repair, or any other term or covenant herein contained, the
Credit Obligor may (but shall not be required to) make advances to perform the
same, and where necessary enter or take possession of the Collateral for the
purpose of performing any such term or covenant. The Company agrees to repay
all sums advanced upon demand, with interest from the date such advances are
made, at the raw provided in Section 2.06 of the Credit Agreement (to the
fullest extent permitted by applicable law), and all sums so advanced, with
interest, shall be secured hereby.
SECTION 9.6 Release or Extension by Credit Obligor. The Credit
Obligor, without notice, may release any part of the Collateral or any person
liable for the Obligations without in any way affecting the rights of the
Credit Obligor hereunder as to any part of the Collateral not expressly
released and may agree with any party with an interest in the Collateral to
extend the time for payment of all or any part of the Obligations or to waive
the prompt and full performance of any term, condition or covenant of this
Mortgage or the Credit Agreement.
SECTION 9.7 Partial Payments. Acceptance by the Credit Obligor of
any payment of less than the amount due on the Obligations shall be deemed
acceptance on account only, and the failure of the Company to pay the entire
amount then due shall be and continue to constitute an Event of Default, and at
any time thereafter and until the entire amount due on the Obligations has been
paid, the Credit Obligor shall be entitled to exercise all rights conferred on
it by the terms of this Mortgage in case of the existence of an Event of
Default.
SECTION 9.8 Addresses for Notices. (a) Any request, demand,
authorization, direction, notice, consent, or other document provided or
permitted by this Mortgage to be made upon, given or furnished to, or filed
with, the Board, the Company or the Credit Obligor shall be sufficient for
every purpose hereunder if in writing and (except as otherwise provided in this
Mortgage) either (i) delivered personally to the party or, if such party is not
an individual, to an officer, partner or other legal representative of the
party to whom the same is directed at the hand delivery address specified
below, or (ii) mailed by certified mail, postage prepaid and addressed as
provided below. The hand delivery address and mailing address for the parties
are as follows:
Board
Hand delivery address:
The Industrial Development Board of the City of Demopolis
Mailing address:
28
The Industrial Development Board of the City of Demopolis
Company
Hand delivery address:
XxXxxxx of Alabama, Inc.
Mailing address:
XxXxxxx of Alabama, Inc.
Credit Obligor
Hand delivery address:
LaSalle National Bank
Mailing address:
LaSalle National Bank
Any of such parties may specify a different address for the receipt of such
documents by mail by giving notice of the change in address to the other
parties.
(b) Any such notice or other document shall be deemed delivered
when actually received by the party to whom directed (or, if such party is not
an individual, to an officer, director or other legal representative of the
party) at the address specified pursuant to this Section, or, if sent by mail,
3 days after such notice or document is deposited in the United States mail,
addressed as provided above.
SECTION 9.9 Construction of Mortgage. This Mortgage may be construed
as a mortgage, chattel mortgage, conveyance, assignment, security agreement,
pledge, financing statement, hypothecation or contract, or any one or more of
them, in order fully to effectuate
29
the lion hereof and security interest created hereby and the purposes and
agreements herein set forth.
SECTION 9.10 Limitation of Liability of Board. The covenants and
agreements contained in this Mortgage do not and shall never constitute or give
rise to a personal or pecuniary liability or charge against the general credit
of the Board, and in the event of a breach of any such covenant or agreement,
no personal or pecuniary liability or charge payable directly or indirectly
from the general assets or revenues of the Board (other than the Collateral)
shall arise therefrom. Nothing contained in this Section, however, shall
relieve the Board from the observance and performance of the covenants and
agreements on its part contained herein. The Obligations shall never
constitute an indebtedness of the City of Auburn within the meaning of any
constitutional provision or statutory limitation. and shall never constitute or
give rise to a pecuniary liability of the City of Demopolis or a charge against
its general credit or taxing powers.
30
IN WITNESS WHEREOF, the Board and the Company have caused this
instrument to be duly executed and the Board has caused its seal to be hereunto
affixed and attested.
THE INDUSTRIAL DEVELOPMENT
BOARD OF THE CITY OF DEMOPOLIS
By:
---------------------------------------
Chairman of its Board of Directors
[S E A L]
Attest:
---------------------------
Secretary
XxXXXXX OF ALABAMA, INC.
By:
----------------------------------------
Its:
---------------------------------------
[S E A L]
Attest:
--------------------------
Secretary
31
STATE OF ALABAMA )
__________________ COUNTY )
I, the undersigned Notary Public in and for said County in said State,
hereby certify that ____________________ _______, whose name as Chairman of the
Board of Directors of The Industrial Development Board of the City of
Demopolis, a public corporation, is signed to the foregoing instrument and who
is known to me, acknowledged before me on this day that, being informed of the
contents of said instrument, he, as such officer and with full authority,
executed the same voluntarily for and as the act of said corporation.
Given under my hand this the ___ day of __________________,1997.
-------------------------------------
Notary Public
[NOTARIAL SEAL]
My commission expires:
---------------
STATE OF )
________________ COUNTY )
I, the undersigned Notary Public in and for said County in said State,
hereby certify that ____________________ _______, whose name as
_____________________________ of XxXxxxx of Alabama, Inc., a Michigan
corporation, is signed to the foregoing instrument and who is known to me,
acknowledged before me on this day that, being informed of the contents of said
instrument, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said corporation.
Given under my hand this the ___ day of __________________,1997.
--------------------------------------
Notary Public
[NOTARIAL SEAL]
My commission expires:
----------------
32
EXHIBIT "A"
LEGAL DESCRIPTION
A parcel of land lying and being in Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx X
Xxxx, Xxxxxxx Xxxxxx, Xxxxxxx, containing 88.1 acres more or less, and being
more particularly described as follows:
Commence at the southwest corner of the Northeast Quarter of the Southwest
Quarter of said Section 11; thence run north 01 degrees 50' west along the west
boundary of said Northeast Quarter of Southwest Quarter a distance of 82.6 feet
to a concrete monument set to xxxx the point of beginning; thence run north 40
degrees 29' east parallel to and 350 feet perpendicular from the centerline of
the existing runway No. 4 of the Demopolis Airport a distance of 3,245.9 feet
to a concrete monument set 600 feet perpendicular from the centerline of
existing runway No. 13 of the said Demopolis Airport; thence run North 51
degrees 55' west and parallel to said runway No. 13 a distance of 1,568.8 feet
to a concrete monument set on the southeast boundary of a cemetery; thence run
south 38 degrees 05' west a distance of 20.0 feet to a concrete monument set at
the southern most corner of said cemetery; thence run north 51 degrees 55' west
along the southwest boundary of said cemetery a distance of 43.2 feet to a
concrete monument set near the left bank of the Tombigbee River. Continue
thence north 51 degrees 55' west to the said Tombigbee River; thence
southwestwardly along the southeast edge of said Tombigbee River to the point
of intersection of said river and the west boundary of the Southeast Quarter of
the Northwest Quarter of Section 11, said course follows generally along a
meander line described as: from last named concrete monument run south 47
degrees 04' west a distance of 515.2 feet; thence run south 41 degrees 54' west
a distance of 367.2 feet; thence run south 50 degrees 42' west a distance of
515.2 feet; thence run south 41 degrees 54' west a distance of 367.2 feet;
thence run south 50 degrees 42' west a distance of 370.0 feet to a concrete
monument found on the said west boundary of the Southeast Quarter of the
Northwest Quarter near the left bank of said river; thence run south 01 degrees
50' east and along the west boundary of said Southwest Quarter of Northwest
quarter and Northeast Quarter of Southwest Quarter a distance of 2,590.2 feet
to the point of beginning.
LESS AND EXCEPT the following described tract heretofore conveyed to Alabama
Power Company and more particularly described as follows:
A parcel of land located in the Northeast Quarter of the Southwest Quarter (NE
1/4 of SW 1/4) and the Southeast Quarter of Northwest Quarter (SE 1/4 of NW
1/4) of Section 11, Township 17 North, Range 1 East, Marengo County, Alabama,
and being more particularly described as follows:
Commence at the southwest corner of the Northeast Quarter of Southwest Quarter
(NE 1/4 of SW 1/4) of Section 11 and run North 01 degree 50 minutes West a
distance of 651.4 feet to a point; thence turn an angle to the right and run
North 40 degrees 31 minutes East a distance of 1130.83 feet to a point, said
point being the northwest corner of existing Alabama Power Company substation
and point of beginning of the property herein described; thence from point of
beginning continue North 40 degrees 31 minutes East a distance of 150.0 feet to
a point; thence turn an angle to the right and run South 49 degrees 29 minutes
East a distance of 150 feet to a point; thence turn an angle to the right and
run South 40 degrees 31 minutes West a distance of 50 feet to a point; thence
turn an angle to the left and run South 49 degrees 29 minutes East a distance
of 115.2 feet to the northwesterly boundary line of a paved road; thence turn
an angle to the right and run South 40 degrees 31 minutes West along the
northwesterly margin of said road a distance of 50 feet to a point; thence turn
an angle to the right and run North 49 degrees 29 minutes West a distance of
115.2 feet to a point; thence turn an angle to the left and run South 40
degrees 31 minutes West a distance of 50 feet to a point; thence turn an angle
to the right and run North 49 degrees 29 minutes West a distance of 150 feet to
the point of beginning.
The foregoing property being conveyed to the Alabama Power Company by Deeds
recorded October 2, 1985 in the Probate Office, Marengo County, Alabama, in
Deed Book 7-U at Page 296 and Deed Book 7-U, at Page 300.
