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Exhibit 4.4
This instrument was prepared by the attorney described below in consultation
with counsel in the State in which the Property is located and, when recorded,
the recorded counterparts should be returned to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. XxXxxxxx, Esq.
================================================================================
MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FINANCING STATEMENT
dated as of April 2, 2001
from
NSA, LTD.,
the Mortgagor,
to
WILMINGTON TRUST COMPANY,
as Collateral Agent,
the Mortgagee
Property:
Xxxxxxx County, Kentucky
================================================================================
THIS INSTRUMENT IS FOR COMMERCIAL PURPOSES AND CONTAINS AFTER-ACQUIRED PROPERTY
PROVISIONS AND SECURES, INTER ALIA, OBLIGATIONS WHICH PROVIDE FOR AN INCREASING
RATE OF INTEREST.
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TABLE OF CONTENTS
PAGE
PREAMBLE......................................................................1
RECITALS......................................................................1
GRANTING CLAUSES..............................................................2
GRANTING CLAUSE I. Land...................................................2
GRANTING CLAUSE II. Improvements...........................................3
GRANTING CLAUSE III. Equipment..............................................3
GRANTING CLAUSE IV. Appurtenant Rights.....................................4
GRANTING CLAUSE V. Agreements.............................................4
GRANTING CLAUSE VI. Leases.................................................4
GRANTING CLAUSE VII. Rents, Issues and Profits..............................4
GRANTING CLAUSE VIII. Permits................................................5
GRANTING CLAUSE IX. Deposits...............................................5
GRANTING CLAUSE X. Proceeds and Awards....................................5
GRANTING CLAUSE XI. Further Property.......................................6
ARTICLE 1
DEFINITIONS AND INTERPRETATION
Section 1.01. Definitions.................................................7
Section 1.02. Interpretation.............................................12
Section 1.03. Resolution of Drafting Ambiguities.........................13
ARTICLE 2
CERTAIN WARRANTIES AND COVENANTS OF THE MORTGAGOR
Section 2.01. Title and Authority........................................13
Section 2.02. Secured Obligations........................................14
Section 2.03. Impositions................................................14
Section 2.04. Material Agreements and Legal and Insurance Requirements...15
Section 2.05. Status and Care of the Property............................16
Section 2.06. Permitted Contests.........................................17
Section 2.07. Other Instruments..........................................17
Section 2.08. Liens......................................................18
Section 2.09. Transfer...................................................18
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PAGE
ARTICLE 3
INSURANCE, CASUALTY AND CONDEMNATION
Section 3.01. Insurance..................................................18
Section 3.02. Casualty...................................................19
Section 3.03. Insurance Claims and Proceeds..............................19
Section 3.04. Condemnation...............................................20
Section 3.05. Condemnation Proceedings and Awards........................20
ARTICLE 4
INCREASED COSTS AND INDEMNIFICATION
Section 4.01. Increased Costs............................................21
Section 4.02. Indemnification............................................21
ARTICLE 5
DEFAULTS, REMEDIES AND RIGHTS
Section 5.01. Events of Default..........................................22
Section 5.02. Remedies...................................................22
Section 5.03. Waivers by the Mortgagor...................................26
Section 5.04. Jurisdiction and Process...................................27
Section 5.05. Sales......................................................27
Section 5.06. Proceeds...................................................29
Section 5.07. Assignment of Leases.......................................30
Section 5.08. Dealing with the Mortgaged Property........................31
Section 5.09. Right of Entry.............................................31
Section 5.10. Right to Perform Obligations...............................31
Section 5.11. Concerning the Mortgagee...................................32
ARTICLE 6
SECURITY AGREEMENT AND FIXTURE FILING
Section 6.01. Security Agreement.........................................33
Section 6.02. Fixture Filing.............................................33
Section 6.03 Further Assurances; General Covenants......................34
ARTICLE 7
MISCELLANEOUS
Section 7.01. Release of Mortgaged Property..............................35
Section 7.02. Notices....................................................36
Section 7.03. Amendments in Writing......................................36
Section 7.04. Severability...............................................37
Section 7.05. Binding Effect.............................................37
Section 7.06. GOVERNING LAW..............................................37
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PAGE
Exhibit A Description of the Land
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THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND
FINANCING STATEMENT (this "MORTGAGE") is dated as of April 2, 2001 by NSA, LTD.,
a Kentucky limited partnership, having an address at c/o Century Aluminum
Company, 0000 Xxxxxx Xxxx, Xxxxxxxx X, Xxxxx 000, Xxxxxxxx, XX 00000 (the
"MORTGAGOR"), to WILMINGTON TRUST COMPANY, a Delaware banking corporation, as
Trustee under the Indenture referred to herein in its capacity as Collateral
Agent for itself and the holders of the Notes (hereinafter defined), having its
principal address at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 19890 (the "MORTGAGEE").
WITNESSETH:(1)
RECITALS
A. Indenture. Reference is hereby made to the Indenture dated as of
April 2, 2001 (the "INDENTURE"), among Century Aluminum Company (the "COMPANY"),
the Guarantors (including the Mortgagor) party thereto and Wilmington Trust
Company, as Trustee. Pursuant to the Indenture, the Company has issued
$325,000,000 principal amount of its 11 3/4% Senior Secured First Mortgage Notes
due 2008 (together with any Exchange Notes issued therefor as provided in the
Indenture, the "NOTES").
B. Note Guaranties. Pursuant to the Note Guaranties contained in the
Indenture (the "NOTE GUARANTIES"), each Guarantor (including the Mortgagor) has
guaranteed the payment by the Company of principal of, premium, if any, and
interest on, and all other amounts payable under, the Notes, the Indenture and
the other Security Documents.
C. Mortgage. The Lien of this Mortgage is being granted to secure
payment, performance and observance of the following indebtedness, liabilities
and obligations, whether now or hereafter owed or owing, hereinafter referred to
collectively as the "SECURED OBLIGATIONS":
(i) the prompt and complete payment of (a) all obligations
(whether in existence on the date hereof or arising afterwards,
absolute or contingent, direct or indirect) of the Mortgagor under its
Note Guaranty, including for or in respect of principal (when due, upon
acceleration, upon redemption, upon mandatory repayment or repurchase
pursuant to a mandatory offer to
--------
(1) Capitalized terms are defined in, or by reference in, Section 1.01.
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purchase, or otherwise), premium, interest, including additional
interest under the Registration Rights Agreement, penalties, fees,
indemnification, reimbursement and other amounts payable and
liabilities with respect to such obligations, including all interest
accrued or accruing after the commencement of any bankruptcy,
insolvency or reorganization or similar case or proceeding at the
contract rate (including any contract rate applicable upon default)
specified in the Credit Documents, whether or not the claim for such
interest is allowed as a claim in such case or proceeding, (b) all
amounts payable by the Mortgagor hereunder (including advances made to
protect the Mortgaged Property and the Liens created hereby); and (c)
any amendments, restatements, renewals, extensions or modifications of
any of the foregoing; and
(ii) performance and observance of each other term, covenant,
agreement, requirement, condition and provision to be performed or
observed by the Mortgagor under the Indenture or this Mortgage.
GRANTING CLAUSES
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, for the purpose of securing the due and punctual payment,
performance and observance of the Secured Obligations and intending to be bound
hereby, the Mortgagor does hereby MORTGAGE, GRANT, BARGAIN, SELL, CONVEY,
ASSIGN, TRANSFER AND WARRANT to the Mortgagee and its successors as Collateral
Agent and (to the extent covered by the UCC) does hereby GRANT AND WARRANT to
the Mortgagee and its successors as Collateral Agent, a continuing security
interest in all of the property and rights described in the following Granting
Clauses other than the Excluded Property (all of which property and rights,
other than the Excluded Property, are collectively called the "MORTGAGED
PROPERTY"), to wit:
GRANTING CLAUSE I.
Land. All estate, right, title and interest of the Mortgagor in, to,
under or derived from the lots, pieces, tracts or parcels of land located in the
County of Xxxxxxx, the State of Kentucky, more particularly described in Exhibit
A (the "LAND").
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GRANTING CLAUSE II.
Improvements. All estate, right, title and interest of the Mortgagor
in, to, under or derived from all buildings, structures, facilities and other
improvements of every kind and description now or hereafter located on the Land,
including pot lines, cast houses, power substations, paste plant, alumina silo,
rodding shop and water treatment and pollution control facilities, and all
parking areas, roads, driveways, walks, fences, walls, berms, recreation
facilities, drainage facilities, lighting facilities and other site
improvements, all water, sanitary and storm sewer, drainage, electricity, steam,
gas, telephone and other utility equipment and facilities, all plumbing,
lighting, heating, ventilating, air-conditioning, refrigerating, incinerating,
compacting, fire protection and sprinkler, surveillance and security, vacuum
cleaning, public address and communications equipment and systems, screens,
awnings, floor coverings, partitions, elevators, escalators, motors, machinery,
pipes, fittings and other items of equipment and personal property of every kind
and description now or hereafter located on the Land or attached to the
Improvements which by the nature of their location thereon or attachment thereto
are real property under applicable law; and including all materials intended for
the construction, reconstruction, repair, replacement, alteration, addition or
improvement of or to such buildings, equipment, fixtures, structures and
improvements, all of which materials shall be deemed to be part of the Mortgaged
Property immediately upon delivery thereof on the Land and to be part of the
improvements immediately upon their incorporation therein (the foregoing being
collectively the "IMPROVEMENTS").
GRANTING CLAUSE III.
Equipment. All estate, right, title and interest of the Mortgagor in,
to, under or derived from all component parts of the Improvements, fixtures,
chattels and articles of personal property owned by the Mortgagor or in which
the Mortgagor has or shall acquire an interest, wherever situated, and now or
hereafter located on, attached to or contained in the Land and the Improvements,
whether or not attached thereto which are not real property under applicable
law, including all pot lines, partitions, screens, awnings, shades, blinds,
curtains, draperies, carpets, rugs, furniture and furnishings, heating,
lighting, plumbing, ventilating, air conditioning, refrigerating, gas, steam,
electrical, incinerating, compacting, water treatment, pollution control, and
paste plants, systems, fixtures and equipment, anode bake ovens, elevators,
stoves, ranges, other kitchen and laundry appliances, vacuum and other cleaning
systems, call systems, switchboards, sprinkler systems and other fire
prevention, alarm and extinguishing apparatus and materials, motors, machinery,
pipes, conduits, dynamos, engines, compressors, generators, boilers, stokers,
furnaces, pumps, trunks, ducts, appliances, equipment, utensils, tools,
implements, fittings and fixtures (all of the foregoing being hereinafter
collectively called the
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"EQUIPMENT"; and the Land with the Improvements thereon and the Equipment
therein being collectively called the "PROPERTY").
GRANTING CLAUSE IV.
Appurtenant Rights. All estate, right, title and interest of the
Mortgagor in, to, under or derived from all tenements, hereditaments and
appurtenances now or hereafter relating to the Property; the streets, roads,
sidewalks and alleys abutting the Property; all strips and gores within or
adjoining the Land; all land in the bed of any body of water adjacent to the
Land; all land adjoining the Land created by artificial means or by accretion;
all air space and rights to use air space above the Land; all development or
similar rights appurtenant to the Land; all rights of ingress and egress now or
hereafter appertaining to the Property; all easements, servitudes, rights, ways,
privileges and rights of way now or hereafter appertaining to the Property; and
all royalties and other rights appertaining to the use and enjoyment of the
Property, including alley, party walls, support, drainage, crop, timber,
agricultural, horticultural, oil, gas and other mineral, water stock, riparian
and other water rights.
GRANTING CLAUSE V.
Agreements. All estate, right, title and interest of the Mortgagor in,
to, under or and derived from the Owners Agreement (other than any rights with
respect to Excluded Property), the "Shared Services Agreement", "Groundwater
Treatment Building Lease Agreement", and "Environmental Access and Cooperation
Agreement" (as such quoted terms are defined in the Owners Agreement), all
Insurance Policies (including all unearned premiums and dividends thereunder),
guarantees and warranties relating to the Property and all supply and service
contracts for water treatment, pollution control or for water, sanitary and
storm sewer, drainage, electricity (other than the Power Contract), steam, gas,
telephone and other utilities relating to the Property (the foregoing being
collectively called the "AGREEMENTS").
GRANTING CLAUSE VI.
Leases. All estate, right, title and interest of the Mortgagor in, to,
under and derived from all Leases now or hereafter in effect, whether or not of
record, for the use or occupancy of all or any part of the Property.
GRANTING CLAUSE VII.
Rents, Issues and Profits. All estate, right, title and interest of the
Mortgagor in, to, under or derived from all rents, royalties, issues, profits,
receipts, revenue, income and other benefits now or hereafter accruing with
respect to the Property,
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including all rents and other sums now or hereafter payable pursuant to the
Leases; all other sums now or hereafter payable with respect to the use,
occupancy, management, operation or control of the Property; and all other
claims, rights and remedies now or hereafter belonging or accruing with respect
to the Property, including fixed, additional and percentage rents, occupancy
charges, security deposits, parking, maintenance, common area, tax, insurance,
utility and service charges and contributions (whether collected under the
Leases or otherwise), proceeds of sale of electricity, gas, heating,
air-conditioning and other utilities and services (whether collected under the
Leases or otherwise), and deficiency rents and liquidated damages following
default or cancellation (the foregoing rents and other sums described in this
Granting Clause being collectively called the "Rents"), all of which the
Mortgagor hereby irrevocably directs be paid to the Mortgagee, subject to the
license granted to the Mortgagor pursuant to Section 5.07(b), to be held,
applied and disbursed as provided in this Mortgage.
GRANTING CLAUSE VIII.
Permits. All estate, right, title and interest of the Mortgagor in, to,
under or derived from all licenses, authorizations, certificates, variances,
consents, approvals and other permits now or hereafter appertaining to the
Property (the foregoing being collectively called the "PERMITS").
GRANTING CLAUSE IX.
Deposits. All estate, right, title and interest of the Mortgagor in,
to, under or derived from all amounts deposited with the Mortgagee under the
Credit Documents, including all Insurance Proceeds and Awards, including such
proceeds and awards as are deposited in the Cash Collateral Account, and
including all notes, certificates of deposit, securities and other investments
relating thereto and all interest, dividends and other income thereon, proceeds
thereof and rights relating thereto (the foregoing being collectively called the
"DEPOSITS").
GRANTING CLAUSE X.
Proceeds and Awards. All estate, right, title and interest of the
Mortgagor in, to, under or derived from all proceeds of any sale, transfer,
financing, refinancing or conversion into cash or liquidated claims, whether
voluntary or involuntary, of any of the Mortgaged Property, including all
Insurance Proceeds and Awards, and all rights, dividends and other claims of any
kind whatsoever (including damage, secured, unsecured, priority and bankruptcy
claims) now or hereafter relating to any of the Mortgaged Property, all of which
the Mortgagor hereby irrevocably directs be paid to the Mortgagee to the extent
provided hereunder or under any other Credit Document, to be held, applied and
disbursed as provided in this Mortgage.
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GRANTING CLAUSE XI.
Further Property. All estate, right, title and interest of the
Mortgagor in, to, under or derived from the Mortgaged Property hereafter
acquired by the Mortgagor, and all right, title and interest of the Mortgagor
in, to, under or derived from all extensions, improvements, betterments,
renewals, substitutions and replacements of, and additions and appurtenances to,
any of the Mortgaged Property hereafter acquired by or released to the Mortgagor
or constructed or located on, or attached to, the Property, in each case,
immediately upon such acquisition, release, construction, location or
attachment, without any further conveyance, mortgage, assignment or other act by
the Mortgagor; and all estate, right, title and interest of the Mortgagor in,
to, under or derived from any other property and rights which are, by the
provisions of the Credit Documents, required to be subjected to the Lien hereof;
and all estate, right, title and interest of the Mortgagor in, to, under or
derived from all other property and rights which are by any instrument or
otherwise subjected to the Lien hereof by the Mortgagor or by anyone acting on
its behalf.
TO HAVE AND TO HOLD the Mortgaged Property, together with all estate,
right, title and interest of the Mortgagor and anyone claiming by, through or
under the Mortgagor in, to, under or derived from the Mortgaged Property and all
rights and appurtenances relating thereto, unto the Mortgagee and its successors
and assigns, forever, under and subject to the terms of the Indenture and this
Mortgage for the benefit of the Secured Parties and for the security and
enforcement of the complete and prompt payment and performance when due of all
the Secured Obligations.
PROVIDED ALWAYS that this Mortgage is upon the express condition that
the Mortgaged Property shall be released from the Lien of this Mortgage in full
in the manner and at the time provided in Section 7.01.
NOTWITHSTANDING anything to the contrary set forth above, the rights of
the Mortgagee hereunder are expressly limited to the right, title and interest
of the Mortgagor (including its successors and assigns) in and to the Mortgaged
Property and shall not impair or otherwise affect the right, title and interest
of the other Co- Tenant or the Other Co-Tenant's right to any increase in the
value of its Interest (as defined in the Owners Agreement) and the Mortgagee's
rights hereunder, whether through foreclosure or otherwise, shall be expressly
subject to the Other Co-Tenant's rights under the Owners Agreement, including
under Section 2.3.2 and Articles IX and X.
THE MORTGAGOR ADDITIONALLY COVENANTS AND AGREES WITH THE MORTGAGEE AS
FOLLOWS:
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ARTICLE 1
DEFINITIONS AND INTERPRETATION
SECTION 1.01. Definitions. (a) As used herein, the following terms
shall have the following meanings:
"AGREEMENTS" is defined in Granting Clause V.
"AWARDS" means, at any time, all awards or payments paid or payable by
reason of any Condemnation, including all amounts paid or payable with respect
to any Transfer in lieu or anticipation of Condemnation or any agreement with
any condemning authority which has been made in settlement of in connection with
any proceeding relating to a Condemnation.
"CASH COLLATERAL ACCOUNT" is defined in the Pledge and Security
Agreement.
"CASUALTY" means any damage to, or destruction of, the Property.
"COLLATERAL AGENT" is defined in the Indenture.
"COMPANY" is defined in the recitals.
"CREDIT AGREEMENT" is defined in the Indenture.
"CREDIT DOCUMENTS" means the Indenture, the Notes, the Registration
Rights Agreement, and the Security Documents.
"CONDEMNATION" means any condemnation or other taking or temporary or
permanent requisition of any Property, any interest therein or right appurtenant
thereto, or any change of grade affecting any Property, as the result of the
exercise of any right of condemnation or eminent domain. A Transfer in lieu or
anticipation of Condemnation shall be deemed to be a Condemnation.
"DEFAULT" is defined in the Indenture.
"DEPOSITS" is defined in Granting Clause IX.
"ENVIRONMENTAL LAWS" means any federal, state, local or foreign law
(including common law), treaty, judicial decision, regulation, rule, judgment,
order, decree, injunction, permit, or governmental restriction or requirement,
or any agreement with any governmental authority or other third party, whether
now or hereafter in effect, relating to human health and safety, the environment
or to
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pollutants, contaminants, wastes or chemicals or any toxic, radioactive,
ignitable, corrosive, reactive or otherwise hazardous substances, wastes or
materials.
"EQUIPMENT" is defined in Granting Clause III.
"EVENT OF DEFAULT" is defined in the Indenture.
"EXCLUDED PROPERTY" means all "inventory", equipment constituting
"mobile goods", and "accounts" as such quoted terms are defined or otherwise
described in the UCC.
"FIFTH POT LINE" means the fixed and movable assets comprising pot line
five (5), together with the Land thereunder, owned by the Other Co-Tenant.
"GUARANTOR" is defined in the Indenture.
"HAZARDOUS SUBSTANCES" means any pollutant, contaminant, waste or
chemical or any toxic, radioactive, ignitable, corrosive, reactive or otherwise
hazardous substance, waste or material, or any substance, waste or material
having any constituent elements displaying any of the foregoing characteristics,
including, without limitation, petroleum, its derivatives, by-products and other
hydrocarbons, and any substance, waste or material regulated under any
Environmental Law.
"IMPOSITIONS" means all taxes (including real estate taxes and sales
and use taxes), assessments (including all assessments for public improvements
or benefits, whether or not commenced or completed prior to the date hereof),
water, sewer or other rents, rates and charges, excises, levies, license fees,
permit fees, inspection fees and other authorization fees and other charges, in
each case whether general or special, ordinary or extraordinary, foreseen or
unforeseen, of every character (including all interest and penalties thereon),
which at any time may be assessed, levied, confirmed or imposed on or in respect
of, or be a Lien upon, (i) the Property, any other Mortgaged Property or any
interest therein, (ii) any occupancy, use or possession of, or activity
conducted on, the Property, (iii) the Rents from the Property or the use or
occupancy thereof, or (iv) the Secured Obligations or the Security Documents,
but excluding income, excess profits, franchise, capital stock, estate,
inheritance, succession, gift or similar taxes of the Mortgagor, the Mortgagee
or any other Secured Party, except to the extent that such taxes of the
Mortgagor, the Mortgagee or any other Secured Party are imposed in whole or in
part in lieu of, or as a substitute for, any taxes which are or would otherwise
be Impositions.
"IMPROVEMENTS" is defined in Granting Clause II.
"INDENTURE" is defined in the Recitals.
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"INSURANCE POLICIES" means the insurance policies and coverages
required to be maintained by the Mortgagor with respect to the Property pursuant
to this Mortgage.
"INSURANCE PREMIUMS" means all premiums for the Insurance Policies.
"INSURANCE PROCEEDS" means, at any time, all insurance proceeds or
payments to which the Mortgagor may be or become entitled by reason of any
Casualty under the Insurance Policies maintained by the Mortgagor pursuant to
the Indenture with respect to the Property plus (i) the amounts of any
deductibles under such Insurance Policies; (ii) if the Mortgagor fails to
maintain any of such Insurance Policies, the amounts which would have been
available with respect to such Casualty had the Mortgagor maintained such
Insurance Policies; and (iii) all insurance proceeds and payments to which the
Mortgagor may be or become entitled by reason of any Casualty under any other
insurance policies or coverages maintained by the Mortgagor with respect to the
Property.
"INSURANCE REQUIREMENTS" means all provisions of the Insurance
Policies, all requirements of the issuer of any of the Insurance Policies and
all orders, rules, regulations and any other requirements of the National Board
of Fire Underwriters (or any other body exercising similar functions) binding
upon the Mortgagor or applicable to the Property, any adjoining vaults,
sidewalks, parking areas or driveways or any use or condition thereof.
"LAND" is defined in Granting Clause I.
"LEASE" means any lease, tenancy, subtenancy, license, franchise,
concession or other occupancy agreement relating to the Property, together with
any guarantee of the obligations of the landlord or the tenant thereunder, or
any occupancy or right to possession under any federal or state bankruptcy code
in the event of the rejection of any Lease by the landlord or its trustee
pursuant to said code; "LANDLORD" means the landlord, sublandlord, lessor,
sublessor, franchisor or other grantor of a right of occupancy under a Lease and
any guarantor of its obligations thereunder; and "TENANT" means the tenant,
subtenant, lessee, sublessee, licensee, franchisee, concessionaire or other
occupant under a Lease and any guarantor of its obligations thereunder.
"LEGAL REQUIREMENTS" means all provisions of the Permitted
Encumbrances, all provisions of the Permits and all applicable laws (including
any Environmental Laws), statutes, codes, acts, ordinances, orders, judgments,
decrees, injunctions, rules, regulations, directions and requirements of, and
agreements with, governmental bodies, agencies or officials, now or hereafter
applicable to the Property, or any use or condition thereof.
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"LIEN" is defined in the Indenture.
"MATERIAL AGREEMENTS" means the Owners Agreement, "Shared Services
Agreement, "Groundwater Treatment Building Lease Agreement", and "Environmental
Access and Cooperation Agreement" (as such quoted terms are defined in the
Owners Agreement).
"MORTGAGE" is defined in the Preamble.
"MORTGAGED PROPERTY" is defined in the Granting Clauses.
"MORTGAGEE" is defined in the Preamble.
"MORTGAGOR" is defined in the Preamble.
"NATIONAL FLOOD INSURANCE PROGRAM" means the National Flood Insurance
Act of 1968 and the Flood Disaster Protection Act of 1973 (42 U.S.C. Sections
4001, et seq.)
"NOTE GUARANTIES" is defined in the Recitals..
"NOTES" is defined in the Recitals.
"OFFICERS' CERTIFICATE" is defined in the Indenture.
"OPINION OF COUNSEL" is defined in the Indenture.
"OTHER CO-TENANT" means Glencore Acquisition I LLC, as a party to the
Owners Agreement, and its permitted successors and assigns under the Owners
Agreement.
"OWNERS AGREEMENT" means the Owners Agreement dated as of April 2,
2001, among the Mortgagor, the Other Co-Tenant and Century Aluminum of Kentucky
LLC.
"PERMITS" is defined in Granting Clause VIII.
"PERMITTED ENCUMBRANCES" is defined in the Indenture.
"PERSON" is defined in the Indenture.
"PLEDGE AND SECURITY AGREEMENT" is defined in the Indenture.
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"PLEDGED EQUIPMENT" is defined in Section 6.03(f).
"POST-DEFAULT RATE" means the interest rate owed on any overdue
payments of principal or interest on the Note as provided in each Note.
"POT LINES" means the fixed and movable assets comprising pot lines one
(1), two (2), three (3) and four (4), together with the Land thereunder, but
excluding the right, title and interest of the Other Co-Tenant in the Fifth Pot
Line unless an interest therein is hereafter acquired by the Mortgagor.
"PROPERTY" is defined in Granting Clause II.
"RECEIVER" is defined in Section .
"REGISTRATION RIGHTS AGREEMENT" is defined in the Indenture.
"RENTS" is defined in Granting Clause VII.
"RESTORATION" means the restoration, repair, replacement or rebuilding
of the Property after a Casualty or Condemnation and "RESTORE" means to restore,
repair, replace or rebuild the Property after a Casualty or Condemnation, in
each case as nearly as possible to its value and condition immediately prior to
such Casualty or Condemnation.
"REVISED ARTICLE 9" means revised Article 9 of the Uniform Commercial
Code as set forth in the 1998 Official Text thereof; provided that, when used
with respect to any jurisdiction on or after the date when revised Article 9
(with or without local changes therein) first becomes effective in such
jurisdiction, "Revised Article 9" refers to Article 9 as in effect in such
jurisdiction from time to time.
"REVISED UCC" means (i) before the UCC Revision Date, the Uniform
Commercial Code as set forth in the 1998 Official Text thereof and (ii) on and
after the UCC Revision Date, the UCC.
"SECURED OBLIGATIONS" is defined in the Recitals.
"SECURED PARTIES" means the (i) Mortgagee, (ii) the Trustee, (iii) the
Collateral Agent, and (iv) the holders from time to time of the Notes.
"SECURITY DOCUMENTS" is defined in the Indenture.
"TRANSFER" means, when used as a noun, any sale, conveyance,
assignment, lease or other transfer and, when used as a verb, to sell, convey,
assign, lease or
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otherwise transfer, in each case (i) whether voluntary or involuntary, (ii)
whether direct or indirect and (iii) including any agreement providing for a
Transfer or granting any right or option providing for a Transfer.
"TRUST INDENTURE ACT" is defined in the Indenture.
"UNAVOIDABLE DELAYS" means delays due to acts of God, fire, flood,
earthquake, explosion or other Casualty, inability to procure or shortage of
labor, equipment, facilities, sources of energy (including electricity, steam,
gas or gasoline), materials or supplies, failure of transportation, strikes,
lockouts, action of labor unions, Condemnation, litigation relating to Legal
Requirements, inability to obtain Permits or other causes beyond the control of
the Mortgagor, provided that lack of funds shall not be deemed to be a cause
beyond the control of the Mortgagor.
"UCC" means the Uniform Commercial Code as in effect in the State in
which the Land and Improvements are located provided that if by reason of
mandatory provisions of law, the perfection or the effect of perfection or non-
perfection of the Lien on any Mortgaged Property is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State in which the
Land and Improvements are located, UCC means the Uniform Commercial Code as in
effect in such jurisdictions for purposes of the provisions hereof relating to
such perfection or effect of perfection or non-perfection.
"UCC REVISION DATE" means the date when Revised Article 9 first becomes
effective in the State in which the Land and Improvements are located; provided
that, if perfection or the effect of perfection or non-perfection or the
priority of any Lien on any Trust Property is governed by the Uniform Commercial
Code as in effect in a jurisdiction other than the State in which the Land and
Improvements are located, "UCC Revision Date" means the date when Revised
Article 9 first becomes effective in such other jurisdiction for purposes of the
provisions hereof relating to such perfection, effect of perfection or
non-perfection or priority. Such provisions often refer to the relevant date as
the "applicable UCC Revision Date".
(b) In this Mortgage, unless otherwise specified, references to this
Mortgage, Agreements, Material Agreements, Owners Agreement, Leases, Permits,
Indenture, Notes, Credit Documents, and Security Documents include all
amendments, supplements, consolidations, replacements, restatements, extensions,
renewals and other modifications thereof, in whole or in part.
SECTION 1.02. Interpretation. In this Mortgage, unless otherwise
specified, (i) singular words include the plural and plural words include the
singular; (ii) words which include a number of constituent parts, things or
elements, including the terms Leases, Improvements, Land, Secured Obligations,
Property and Mortgaged Property, shall be construed as referring separately to
each constituent part, thing or
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element thereof, as well as to all of such constituent parts, things or elements
as a whole; (iii) words importing any gender include the other genders; (iv)
references to any Person include such Person's successors and assigns and in the
case of an individual, the word "SUCCESSORS" includes such Person's heirs,
devisees, legatees, executors, administrators and personal representatives; (v)
references to any statute or other law include all applicable rules, regulations
and orders adopted or made thereunder and all statutes or other laws amending,
consolidating or replacing the statute or law referred to; (vi) the words
"CONSENT", "APPROVE" and "AGREE", and derivations thereof or words of similar
import, mean the prior written consent, approval or agreement of the Person in
question; (vii) the words "include" and "including", and words of similar
import, shall be deemed to be followed by the words "without limitation"; (viii)
the words "HERETO", "HEREIN", "HEREOF" and "HEREUNDER", and words of similar
import, refer to this Mortgage in its entirety; (ix) references to Articles,
Sections, Schedules, Exhibits, subsections, paragraphs and clauses are to the
Articles, Sections, Schedules, Exhibits, subsections, paragraphs and clauses of
this Mortgage; (x) the Schedules and Exhibits to this Mortgage are incorporated
herein by reference; (xi) the titles and headings of Articles, Sections,
Schedules, Exhibits, subsections, paragraphs and clauses are inserted as a
matter of convenience and shall not affect the construction of this Mortgage;
(xii) all obligations of the Mortgagor hereunder shall be satisfied by the
Mortgagor at the Mortgagor's sole cost and expense; and (xiii) all rights and
powers granted to the Mortgagee hereunder shall be deemed to be coupled with an
interest and be irrevocable.
SECTION 1.03. Resolution of Drafting Ambiguities. The Mortgagor
acknowledges that it was represented by counsel in connection with this
Mortgage, that it and its counsel reviewed and participated in the preparation
and negotiation of this Mortgage and that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party or the Mortgagee
shall not be employed in the interpretation of this Mortgage.
ARTICLE 2
CERTAIN WARRANTIES AND COVENANTS OF THE MORTGAGOR
SECTION 2.01. Title and Authority. (a) The Mortgagor represents and
warrants that (i) the Mortgagor is the owner of (x) the Pot Lines, (y) an eighty
percent (80%) interest in the Land and the Improvements thereon, the Equipment
therein and all other items constituting the Mortgaged Property (other than the
Pot Lines), to the extent the same are or will be "Jointly-Owned Property" (as
defined in the Owners Agreement) and (z) all other items constituting the
Mortgaged Property, in each case free and clear of all Liens other than the
Permitted Encumbrances; (ii) the execution, delivery and performance by the
Mortgagor of this
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Mortgage are within the Mortgagor's power, have been duly authorized by all
necessary action, require no action by or in respect of, or filing with, any
governmental body, agency or official (except for the recording or filing of
this Mortgage) and do not contravene, or constitute a default under, any
provision of applicable law, the partnership agreement of the Mortgagor or any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Mortgagor or relating to the Property or result in the creation or
imposition of any Lien on any asset of the Mortgagor (other than the Lien of
this Mortgage. (iii) this Mortgage constitutes a valid and binding agreement of
the Mortgagor, enforceable against the Mortgagor in accordance with its terms,
except as (x) the enforceability may be limited by bankruptcy, insolvency or
similar laws now or hereafter in effect relating to or affecting creditor's
rights or remedies generally and (y) the availability of equitable remedies may
be limited by equitable principles of general applicability; and (iv ) the Lien
of this Mortgage for the ratable benefit of the Secured Parties will constitute
a valid and perfected first-priority Lien on the Mortgaged Property securing the
Secured Obligations, enforceable as such against all creditors of the Mortgagor
(and any Persons purporting to purchase any of the Mortgaged Property from the
Mortgagor), subject only to the Owners Agreement and the other Permitted
Encumbrances in existence on the date thereof.
(b) The Mortgagor shall (i) cause the representations and warranties in
Section 2.01(a) to be true and correct in each and every respect; and (ii)
forever preserve, protect, warrant and defend (A) its estate, right, title and
interest in and to the Mortgaged Property, (B) the validity, enforceability and
priority of the Lien of this Mortgage on the Mortgaged Property, and (C) the
right, title and interest of the Mortgagee and any purchaser at any sale of the
Mortgaged Property hereunder or relating hereto, in each case against all other
Liens and claims whatsoever, subject only to the Permitted Encumbrances.
(c) The Mortgagor shall (i) promptly correct any material defect or
error which may be discovered in this Mortgage or any financing statement or
other document relating hereto; and (ii) promptly execute, acknowledge, deliver,
record and re-record, register and re-register, and file and re-file this
Mortgage and any financing statements or other documents as may be required by
applicable law or which the Mortgagee may reasonably require from time to time
(all in form and substance satisfactory to the Mortgagee) in order (A) to
effectuate, complete, perfect, continue or preserve the Lien of this Mortgage as
a first Lien on the Mortgaged Property, whether now owned or hereafter acquired,
subject only to the Permitted Encumbrances, or (B) to effectuate, complete,
perfect, continue or preserve any right, power or privilege granted or intended
to be granted to the Mortgagee.
SECTION 2.02. Secured Obligations. The Mortgagor shall duly and
punctually pay, perform and observe the Secured Obligations.
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SECTION 2.03. Impositions. The Mortgagor shall (i) subject to Section
2.06, duly and punctually pay all Impositions prior to the delinquency date
thereof; (ii) subject to Section 2.06, duly and punctually file all returns and
other statements required to be filed with respect to any Imposition; (iii)
promptly notify the Mortgagee of the receipt by the Mortgagor of any notice of
default in the payment of any Imposition or in the filing of any return or other
statement relating to any Imposition and simultaneously furnish to the Mortgagee
a copy of such notice of default; and (iv) upon reasonable request, promptly
deliver to the Mortgagee (A) a certificate of the Mortgagor evidencing that the
Mortgagor has complied with the provisions of this Section 2.03, accompanied to
the extent required by copies of official receipts evidencing the payment of the
Impositions, and (B) such other information and documents with respect to the
matters referred to in this Section as the Mortgagee shall reasonably request.
SECTION 2.04. Material Agreements and Legal and Insurance Requirements.
(a) The Mortgagor represents and warrants that (i) the Property and the use and
operation thereof materially comply with all Material Agreements, Legal
Requirements, or Insurance Requirements; (ii) there is no default under any
Material Agreement, Legal Requirement or Insurance Requirement which would have
a material adverse effect on the Property; and (iii) the execution, delivery and
performance of this Mortgage will not materially contravene any provision of or
constitute a material default under any Material Agreement, Legal Requirement,
or Insurance Requirement.
(b) The Mortgagor shall (i) subject to Section 2.06, duly and
punctually comply in all material respects with all Material Agreements, Legal
Requirements, and Insurance Requirements; (ii) procure, maintain and, subject to
Section 2.06, duly and punctually comply in all material respects with all
Permits required for any construction, reconstruction, repair, alteration,
addition, improvement, maintenance, management, use and operation of the
Property; (iii) promptly notify the Mortgagee of the receipt by the Mortgagor of
any notice of default regarding any Material Agreement, Legal Requirement, or
Insurance Requirement or any reasonably likely or actual termination of any
Permit or Insurance Policy and furnish to the Mortgagee a copy of such notice of
default or termination; (iv) promptly after obtaining knowledge thereof notify
the Mortgagee of any condition which, with or without the giving of notice or
the passage of time or both, would constitute a default regarding any Material
Agreement, Legal Requirement, or Insurance Requirement or a termination of any
Permit or Insurance Policy and the action being taken to remedy such condition;
(v) upon request, promptly furnish to the Mortgagee a copy of any Permit
obtained by the Mortgagor with respect to the Property after the date hereof;
and (vi) upon request, promptly deliver to the Mortgagee (A) a certificate of
the Mortgagor evidencing that the Mortgagor has complied with the provisions of
this Section, and (B) such other information and documents with respect to the
matters referred to in this Section as the Mortgagee shall reasonably request.
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(c) In furtherance of Section 4.19 of the Indenture, the Mortgagor
shall not terminate the Owners Agreement or amend, modify or supplement the
Owners Agreement (or consent or approve any action thereunder) in any manner
which might or would have the result of materially impairing the Lien of this
Mortgage or the practical realization of the benefits intended to be provided
hereby.
SECTION 2.05. Status and Care of the Property. (a) The Mortgagor
represents and warrants that (i) the Property is served by all necessary water
treatment and pollution control facilities and all necessary water, sanitary and
storm sewer, drainage, electric, steam, gas, telephone and other utility
facilities which facilities have capacities which are generally sufficient to
serve the current and anticipated future use and occupancy of the Property as
presently constructed; (ii) the Property has legal access to all streets or
roads necessary for the operation of the Property, which have been fully
completed and properly dedicated, accepted or otherwise legally constructed as a
public street or road (including, as appropriate, access over properly-granted,
perpetual, private rights of way or easements) sufficient to serve the current
and anticipated future use and operation of the Property as presently
constructed; and (iii) either the Property is not located in an area designated
as "flood prone" (as defined under the regulations adopted under the National
Flood Insurance Program or, to the extent the Property is located (in whole or
part) in an area designated as "flood prone", the Mortgagor shall maintain in
full force and effect flood insurance under the National Flood Insurance
Program, to the extent and in the amounts required by applicable law.
(b) The Mortgagor (i) shall not cause or permit the Property to be
misused, wasted, disfigured or damaged in any material manner or (except,
subject to the provisions of this Section, for reasonable wear and tear) to
deteriorate in any material manner; (ii) shall operate and maintain the
Property, or cause the same to be operated and maintained, in good order, repair
and condition; (iii) shall promptly make, or cause to be made, all repairs,
replacements, renewals, restorations, alterations, additions and improvements of
and to the Property, whether interior or exterior, structural or nonstructural,
foreseen or unforeseen, or necessary or appropriate to keep the Property in good
order, repair and condition, all of which repairs, replacements, renewals and
restorations shall be equal in quality to or better than the Property as of the
date hereof; (iv) shall do or cause others to do all shoring of the Property,
including the foundations and walls thereof, and to take all other actions
necessary or appropriate for the preservation and safety thereof by reason of or
in connection with any excavation or other construction operation on the
Property, whether or not the Mortgagor shall be required by any Legal
Requirement to take such action or be liable for failure to do so; (v) shall not
initiate or affirmatively support any change in the applicable zoning adversely
affecting the Property, seek any variance (or any change in any variance) under
the zoning adversely affecting the Property, execute or file any subdivision or
other plat or map adversely affecting the
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Property or consent to any of the foregoing; (vi) shall, promptly after
receiving notice or obtaining knowledge of any proposed or threatened change in
the zoning adversely affecting the Property which would result in the current
use of such Property being a non-conforming use, notify the Mortgagee thereof
and diligently contest the same by any action or proceeding deemed reasonably
appropriate by the Mortgagor or reasonably requested by the Mortgagee; and (vii)
upon request, shall promptly deliver to the Mortgagee (A) a certificate of the
Mortgagor evidencing that the Mortgagor has complied with the provisions of this
Section and (B) such other information and documents with respect to the matters
referred to in this Section as the Mortgagee shall reasonably request.
SECTION 2.06. Permitted Contests. The Mortgagor may contest, by
appropriate proceedings conducted in good faith and with due diligence, any
Legal Requirement, any Insurance Requirement, any Imposition or Lien therefor on
the Mortgaged Property or any interest therein, any Lien of any laborer,
mechanic, materialman, supplier or vendor on the Mortgaged Property or any
interest therein, or any alleged default under a Material Agreement, provided
(i) if the matter being contested affects or relates to a material portion of
the Mortgaged Property, prior notice of the contest is given to the Mortgagee,
(ii) no material Mortgaged Property is in danger of being sold, forfeited or
lost while such proceedings are pending; (iii) the Mortgagee and the other
Secured Parties are not in danger of any criminal or material civil penalty or
any other liability for failure to comply therewith and no material Mortgaged
Property is subject to the imposition of any Lien as a result of such failure
which is not properly contested pursuant to this Section 2.06; (iv) in the case
of any Insurance Requirement, no Insurance Policy or coverage is in danger of
being forfeited or lost while such proceedings are pending; and (v) in the case
of (A) any Lien of a laborer, mechanic, materialman, supplier or vendor, or (B)
any Imposition or Lien therefor, such proceedings suspend the foreclosure of
such Lien or any other collection thereof from the Mortgaged Property and all
interests therein. Upon request, the Mortgagor shall promptly deliver to the
Mortgagee (x) a certificate of the Mortgagor describing in detail satisfactory
to the Mortgagee the contests pending as of the date thereof and evidencing that
the Mortgagor has complied with the provisions of this Section with respect
thereto and (y) such other information and documents with respect to the
contests conducted pursuant to this Section as the Mortgagee shall reasonably
request.
SECTION 2.07. Other Instruments. (a) The Mortgagor shall execute,
acknowledge and deliver, from time to time, such further instruments as
Mortgagee may reasonably require to accomplish the purposes of this Mortgage.
(b) The Mortgagor, immediately upon the execution and delivery of this
Mortgage and thereafter from time to time, shall cause this Mortgage, any
mortgage supplemental hereto and each instrument of further assurance to be
filed, registered or recorded and refiled, re-registered or re-recorded in such
manner and in such
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places as may be required by any present or future law in order to publish
notice, and perfect the lien, of this Mortgage upon the Mortgaged Property.
(c) The Mortgagor shall pay all filing, registration and recording
fees, all refiling, re-registration and re-recording fees and all expenses
incident to the execution and acknowledgment of this Mortgage, any mortgage
supplemental hereto and any instrument of further assurance and all federal,
state, county and municipal stamp taxes and other taxes, duties, imposts,
assessments and charges arising out of or in connection with the execution and
delivery of the Indenture, the Notes, this Mortgage, the other Security
Documents, any mortgage supplemental hereto or any instruments of further
assurance.
SECTION 2.08. Liens. The Mortgagor shall not create or permit to be
created or to remain, and shall, subject to Section 2.06, immediately discharge
or cause to be discharged, any Lien on the Mortgaged Property, in each case (i)
whether voluntarily or involuntarily created, and (ii) whether or not
subordinated hereto, except Permitted Encumbrances and the Lien of this
Mortgage. The provisions of this Section 2.08 shall apply to each and every Lien
(other than Permitted Encumbrances) on the Mortgaged Property, regardless of
whether or not a consent to, or waiver of a right to consent to, any other Lien
thereon has been previously obtained in accordance with the terms of the Credit
Documents.
SECTION 2.09. Transfer. The Mortgagor shall not Transfer, or suffer any
Transfer of, the Mortgaged Property or any part thereof or interest therein,
except as permitted by Section 11.02 of the Indenture or otherwise permitted by
the Indenture. The provisions of this Section 2.09 shall apply to each and every
Transfer of the Mortgaged Property or any interest therein, regardless of
whether or not a consent to, or waiver of a right to consent to, any other
Transfer thereof has been previously obtained in accordance with the terms of
the Credit Documents.
ARTICLE 3
INSURANCE, CASUALTY AND CONDEMNATION
SECTION 3.01. Insurance. (a) The Mortgagor shall maintain in full force
and effect insurance policies with respect to the Property as required by
Section 4.05 of the Indenture. The physical damage insurance maintained with
respect to the Property shall (i) bear the New York standard non-contributory
mortgage endorsement (or equivalent thereto) in favor of the Mortgagee and (ii)
provide that all property losses incurred against shall be adjusted by the
Mortgagor, subject to the Mortgagee's rights pursuant to Section 3.03. The
public liability insurance maintained with respect to the Property shall name
the Mortgagee and the other Secured Parties as additional insureds. All
insurance maintained by the Mortgagor
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with respect to the Property shall provide that no cancellation or material
change thereof shall be effective until at least thirty (30) days after receipt
by the Mortgagee of written notice thereof; and all losses shall be payable
notwithstanding any foreclosure or other action or proceeding taken pursuant to
this Mortgage.
(b) The Mortgagor shall furnish to the Mortgagee from time to
time not later than fifteen (15) days prior to the expiration date of each
policy required to be maintained by the Mortgagor hereunder, an insurance
certificate or certificates executed by the insurer or its authorized agent with
respect to the new or extended policy. If the Mortgagor fails to maintain the
Insurance Policies required to be maintained under this Section, the Mortgagee
shall have the right, but not the obligation, to obtain such Insurance Policies
or pay the premiums therefor. If the Mortgagee obtains such Insurance Policies
or pays the premium therefor, upon demand, the Mortgagor shall reimburse the
Mortgagee for its expenses in connection therewith, together with interest
thereon at the Post-Default Rate.
(c) The Mortgagor may effect such coverage under subsection (a) of this
Section under blanket insurance policies covering the other properties of the
Company, provided that (i) any such blanket insurance policy shall specify
therein, or the insurer under such policy shall certify to the Mortgagee, (A)
the maximum amount of the total insurance afforded by the blanket policy
allocated to the Property; and (B) any sublimits in such blanket policy
applicable to the Property, which sublimits shall not be less than the amounts
required pursuant to this Section; (ii) any such blanket insurance policy shall
comply in all respects with the other provisions of this Section; and (iii) the
protection afforded under any such blanket insurance policy shall be no less
than that which would have been afforded under a separate policy relating only
to the policy.
(d) The Mortgagor shall not maintain additional or separate insurance
concurrent in form or contributing in the event of loss with the insurance
required under this Section, unless the Mortgagee and the other Secured Parties
are included in such policies as loss payees or additional insureds.
SECTION 3.02. Casualty. (a) The Mortgagor represents and warrants that,
as of the date hereof, there is no Casualty materially affecting the Property.
(b) In the event of any Casualty, the Mortgagor shall (i) promptly give
notice thereof to the Mortgagee in the form of an Officers' Certificate,
describing in detail reasonably satisfactory to the Mortgagee the nature and
extent of such Casualty, the work required to Restore the Property affected
thereby and the Mortgagor's best estimate of the cost of such Restoration,
itemized in detail reasonably satisfactory to the Mortgagee; and (ii)
immediately take such action as may be reasonably necessary or appropriate to
preserve the undamaged portion of such Property and to protect against personal
injury or property damage. In the event
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of any Casualty, Mortgagor shall promptly commence and diligently pursue to
completion, or cause to be commenced and diligently pursued to completion, the
Restoration of such Property, subject to Unavoidable Delays, whether or not the
Insurance Proceeds with respect to such Casualty available to the Mortgagor to
pay the cost of Restoration are sufficient, provided that pursuant to Section
11.03 of the Indenture and subject to Section 3.03 below, the Mortgagee shall
make available to Mortgagor any Insurance Proceeds held by the Mortgagee.
SECTION 3.03. Insurance Claims and Proceeds. In the event of any
Casualty, (i) the Mortgagor shall promptly make proof of loss under the
applicable Insurance Policies and diligently pursue to conclusion its claim for
the Insurance Proceeds payable thereunder and any suit, action or other
proceeding necessary or appropriate to obtain payment of such Insurance
Proceeds; (ii) if an Event of Default is continuing, the Mortgagor shall have no
right to settle, and shall not settle, any such claim or proceeding without the
consent of the Mortgagee, which consent shall not be unreasonably withheld or
delayed; and (iii) upon receipt of Insurance Proceeds aggregating $2,500,000 or
more, the Mortgagor shall promptly pay the Insurance Proceeds with respect to
any Casualty to the Mortgagee for deposit in the Cash Collateral Account (except
as provided in Section 11.03 of the Indenture) to be held, applied and disbursed
in accordance with Sections 11.02 and 11.03 of the Indenture.
SECTION 3.04. Condemnation. (a) The Mortgagor represents and warrants
that, as of the date hereof, (i) there is no Condemnation affecting any
Property, (ii) there are no negotiations or proceedings which might result in
such a Condemnation, and (iii) to the knowledge of the Mortgagor, no such
Condemnation is proposed or threatened.
(b) In the event of any material Condemnation or the commencement of
any negotiation or proceeding which might result in a material Condemnation, or
in the event of any proposed or threatened material Condemnation, the Mortgagor
shall promptly after receiving notice or obtaining knowledge thereof give notice
thereof to the Mortgagee in the form of an Officers' Certificate, describing in
detail reasonably satisfactory to the Mortgagee the nature and extent of such
Condemnation, negotiation or proceeding, the action which the Mortgagor intends
to take with respect thereto, the work required to Restore the Property affected
by such Condemnation and the Mortgagor's best estimate of the cost of such
Restoration. In the event of any such Condemnation, whether or not the Awards
with respect to such Condemnation available to the Mortgagor to pay the cost of
Restoration are sufficient for that purpose, the Mortgagor shall promptly
commence and diligently pursue to completion the Restoration of the Property
affected by such Condemnation, subject to Unavoidable Delays, provided that,
pursuant to Section 11.03 of the Indenture and subject to Section 3.05 below,
the Mortgagee shall make available to Mortgagor any Awards held by the
Mortgagee.
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SECTION 3.05. Condemnation Proceedings and Awards. In the event of any
Condemnation or the commencement of any negotiation or proceeding which might
result in a Condemnation, or in the event of any proposed or threatened
Condemnation, (i) the Mortgagor shall, promptly after receiving notice or
obtaining knowledge thereof, do all things deemed necessary or appropriate by
the Mortgagor or reasonably requested by the Mortgagee to preserve the
Mortgagor's interest in such Property and promptly make claim for Awards payable
with respect thereto and diligently pursue to conclusion such claim for such
Awards and any suit, action or other proceeding necessary or appropriate to
obtain payment thereof; (ii) if an Event of Default is continuing, the Mortgagor
shall have no right to settle, and shall not settle, any such claim, negotiation
or proceeding without the consent of the Mortgagee, which consent shall not be
unreasonably withheld or delayed; and (iii) upon receipt of Awards aggregating
$2,500,000 or more, the Mortgagor, shall promptly pay the Awards with respect to
such Condemnation to the Mortgagee for deposit in the Cash Collateral Account
(except as provided in Section 11.03 of the Indenture) to be held, applied and
disbursed in accordance with Sections 11.02 and 11.03 of the Indenture.
ARTICLE 4
INCREASED COSTS AND INDEMNIFICATION
SECTION 4.01. Increased Costs. In the event of the enactment after the
date hereof of any applicable law deducting from the value of the Property for
the purpose of taxation any Lien thereon or changing in any way the applicable
law for the taxation of mortgages, deeds of trust or other Liens or obligations
secured thereby, or the manner of collection of such taxes, so as to affect this
Mortgage, the Secured Obligations, the Mortgagee or any other Secured Party,
upon demand by the Mortgagee, to the extent permitted under applicable law, the
Mortgagor shall pay or reimburse the Mortgagee or such Secured Party, for all
taxes, assessments or other charges which the Mortgagee or such Secured Party is
obligated to pay as a result thereof.
SECTION 4.02. Indemnification. The Mortgagor shall indemnify each of
the Mortgagee and the other Secured Parties (collectively, the "INDEMNITEES")
against, and hold each Indemnitee harmless from, any and all losses, claims,
liabilities and related expenses, including the reasonable and duly documented
fees, charges and disbursements of any counsel for any Indemnitee, incurred by
or asserted against any Indemnitee arising out of, in connection with, or as a
result of (a) the Mortgagee's exercise pursuant to the terms of this Mortgage of
any of its rights and remedies hereunder upon default, or failure to perform as
required hereunder, of the Mortgagor; (b) any accident, injury to or death of
persons or loss of or damage to property occurring in, on or about the Mortgaged
Property or any part thereof or on
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the adjoining sidewalks, curbs, adjacent property or adjacent parking areas,
street or ways; (c) any failure on the part of the Mortgagor to perform or
comply with any of the terms of this Mortgage; (d) the performance of any labor
or services or the furnishing of any materials or other property in respect of
the Mortgaged Property or any part thereof; or (e) any other conduct or
misconduct of the Mortgagor, any lessee of any of the Mortgaged Property, or any
of their respective agents, contractors, subcontractors, servants, employees,
licensees or invitees; provided, however, that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and unappealable judgment to have resulted, except as
otherwise required under the Trust Indenture Act, from the gross negligence or
willful misconduct of such Indemnitee. Any amount payable under this Section
4.02 will be deemed a demand obligation and will bear interest at the
Post-Default Rate from the date of such demand through the date paid. The
obligations of the Mortgagor under this Section, in respect of periods prior to
the release of this Mortgage, shall survive the release of this Mortgage.
ARTICLE 5
DEFAULTS, REMEDIES AND RIGHTS
SECTION 5.01. Events of Default. (a) Any Event of Default under the
Indenture shall constitute an Event of Default hereunder.
(b) All notice and cure periods provided in the Indenture and the
other Credit Documents shall run concurrently with any notice or cure periods
provided under applicable law.
SECTION 5.02. Remedies. (a) Subject to Section 6.02 of the Indenture,
if an Event of Default is continuing, the Mortgagee is hereby authorized and
empowered, at its option, and without affecting the lien hereby created or the
priority of said lien or any right of the Mortgagee hereunder, to declare,
without further notice, all Secured Obligations to be immediately due and
payable, whether or not such Event of Default is thereafter remedied by
Mortgagor. Upon such acceleration, all Secured Obligations shall bear interest
thereon at the Post-Default Rate, and the Mortgagee, subject to the terms and
conditions of the Owners Agreement, may immediately proceed to foreclose this
Mortgage and/or exercise any right, power or remedy provided by any of the
Credit Documents, including the following remedies and rights, subject to
mandatory provisions of applicable law, whether or not the maturity of the
Secured Obligations has been accelerated, to wit:
(i) to institute a proceeding or proceedings, by
advertisement, judicial process or otherwise as provided under
applicable law, for the
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complete or partial foreclosure of this Mortgage or the complete or
partial sale of the Mortgaged Property under the power of sale
hereunder or under any applicable provision of law; or
(ii) to sell the Mortgaged Property, and all estate, right,
title, interest, claim and demand of the Mortgagor therein and thereto,
and all rights of redemption thereof, at one or more sales, as an
entirety or in parcels, with such elements of real or personal
property, at such time and place and upon such terms as the Mortgagee
may deem expedient or as may be required under applicable law, and in
the event of a sale hereunder or under any applicable provision of law
of less than all of the Mortgaged Property, this Mortgage shall
continue as a Lien on the remaining Mortgaged Property; or
(iii) to institute a suit, action or proceeding for the
specific performance of any of the provisions of the Security
Documents; or
(iv) to apply for the appointment of a receiver, supervisor,
trustee, liquidator, conservator or other custodian (a "RECEIVER") of
the Mortgaged Property, to be appointed, to the fullest extent
permitted by law, as a matter of right and without regard to, or the
necessity to disprove, the adequacy of the security for the Secured
Obligations or the solvency of the Company, the Mortgagor or any other
Guarantor, and the Mortgagor hereby, to the full extent permitted by
applicable law, irrevocably waives such necessity and consents to such
appointment, said appointee to be vested with the fullest powers
permitted under applicable law, including to the extent permitted under
applicable law those under clause (v) of this subsection 5.02(a); or
(v) to enter upon the Property, by the Mortgagee or a Receiver
(as the case may be as the Person exercising the rights under this
clause), and, to the extent permitted by law, exclude the Mortgagor and
its managers, employees, contractors, agents and other representatives
therefrom in accordance with applicable law, without liability for
trespass, damages or otherwise, and take possession of all other
Mortgaged Property and all books, records and accounts of the Mortgagor
relating thereto, and upon demand the Mortgagor shall surrender
possession of the Property, the other Mortgaged Property and such
books, records and accounts to the Person exercising the rights under
this clause after the occurrence of any Event of Default; and having
and holding the same, the Person exercising the rights under this
clause may use, operate, manage, preserve, control and otherwise deal
therewith and conduct the business thereof, either personally or by its
managers, employees, contractors, agents or other representatives,
without interference from the Mortgagor or its managers, employees,
contractors, agents and other representatives; and, upon each such
entry and from time to time thereafter, at the expense of the Mortgagor
and the Mortgaged Property,
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without interference by the Mortgagor or its managers, employees,
contractors, agents and other representatives, the Person exercising
the rights under this clause may, as such Person deems expedient, (A)
insure or reinsure the Property, (B) make all necessary or proper
repairs, renewals, replacements, alterations, additions, betterments
and improvements to the Property and (C) in such Person's own name or,
at the option of such Person, in the Mortgagor's name, exercise all
rights, powers and privileges of the Mortgagor with respect to the
Mortgaged Property including the right to enter into Leases with
respect to the Property, including Leases extending beyond the time of
possession by the Person exercising the rights under this clause; and
the Person exercising the rights under this clause shall not be liable
to account for any action taken hereunder, other than for Rents
actually received by such Person, and shall not be liable for any loss
sustained by the Mortgagor resulting from any failure to let the
Property or from any other act or omission of such Person, except to
the extent such loss is caused, unless otherwise required under the
Trust Indenture Act, by such Person's own willful misconduct or gross
negligence; in exercising its rights under this Section 5.02(a)(v), the
Mortgagee acknowledges that the agent under the Credit Agreement and
its agents and representatives, upon notice to the Mortgagee, may enter
upon the Property to inspect, remove or take possession of inventory
securing the obligations under the Credit Agreement and may conduct a
public or private sale of such inventory at the Property provided any
such entry or other activities shall not damage or diminish the value
of the Mortgaged Property or interfere with the operation of the same;
or
(vi) with or, to the fullest extent permitted by law, without
entry upon the Property, in the name of the Mortgagee or a Receiver (as
required by law and as the case may be as the Person exercising the
rights under this clause) or, at such Person's option, in the name of
the Mortgagor, to collect, receive, sue for and recover all Rents and
proceeds of or derived from the Mortgaged Property, and after deducting
therefrom all costs, expenses and liabilities of every character
reasonably incurred by the Person exercising the rights under this
clause in collecting the same and in using, operating, managing,
preserving and controlling the Mortgaged Property and otherwise in
exercising the rights under clause (v) of this subsection 5.02(a) or
any other rights hereunder, including all amounts necessary to pay the
Impositions, the Rents, Insurance Premiums and other costs, expenses
and liabilities relating to the Property, as well as compensation for
the services of such Person and its managers, employees, contractors,
agents or other representatives, to apply the remainder as provided in
Section 5.06; or
(vii) to take any action with respect to any Mortgaged
Property permitted under the UCC; or
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(viii) to take any other action, or pursue any other remedy or
right, as the Mortgagee may have under applicable law, and the
Mortgagor does hereby grant the same to the Mortgagee.
(b) (i) No remedy or right hereunder or under any other Credit
Document shall be exclusive of any other remedy or right, but each
remedy or right hereunder or under any other Credit Document shall be
in addition to, and not in limitation of, any other remedy or right
hereunder, under any other Credit Document or now or hereafter existing
at law or in equity under applicable law.
(ii) Every remedy or right hereunder, under any other Credit
Document or under applicable law may be exercised concurrently or
independently and whenever and as often as deemed appropriate by the
Mortgagee to the extent permitted by applicable law.
(c) (i) No failure to exercise or delay in exercising any
remedy or right hereunder, under any other Credit Document or under
applicable law shall be construed as a waiver of any Default or other
occurrence hereunder or under any other Credit Document.
(ii) No waiver of, failure to exercise or delay in exercising
any remedy or right hereunder, under any other Credit Document or under
applicable law upon any Default or other occurrence hereunder or under
any other Credit Document shall be construed as a waiver of, or
otherwise limit the exercise of, such remedy or right upon any other or
subsequent Default or other occurrence hereunder or under any other
Credit Document.
(iii) No single or partial exercise of any remedy or right
hereunder, under any other Credit Document or under applicable law upon
any Default or other occurrence hereunder or under any other Credit
Document shall preclude or otherwise limit the exercise of any other
remedy or right hereunder, under any other Credit Document or under
applicable law upon such Default or occurrence or upon any other or
subsequent Default or other occurrence hereunder or under any other
Credit Document.
(iv) The acceptance by the Mortgagee or any Secured Party of
any payment less than the amount of the Secured Obligation in question
shall be deemed to be an acceptance on account only and shall not be
construed as a waiver of any Default hereunder or under any other
Credit Document with respect thereto.
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(v) The acceptance by the Mortgagee or any Secured Party of
any payment of, or on account of, any Secured Obligation shall not be
deemed to be a waiver of any Default or other occurrence hereunder or
under any other Credit Document with respect to any other Secured
Obligation.
(d) In the event that the Mortgagee has proceeded to enforce any remedy
or right hereunder or with respect hereto by foreclosure, sale, entry or
otherwise, it may compromise, discontinue or abandon such proceeding for any
reason without notice to the Mortgagor or any other Person; and, in the event
that any such proceeding shall be discontinued, abandoned or determined
adversely for any reason, the Mortgagor and the Mortgagee shall retain and be
restored to their former positions and rights hereunder with respect to the
Mortgaged Property, subject to the Lien hereof except to the extent any such
adverse determination specifically provides to the contrary.
(e) For the purpose of carrying out any provisions of Section
5.02(a)(v), 5.02(a)(vi), 5.05, 5.07, or 5.10 or any other provision hereunder
authorizing the Mortgagee or any other Person to perform any action on behalf of
the Mortgagor, the Mortgagor hereby irrevocably appoints the Mortgagee or a
Receiver appointed pursuant to Section 5.02(a)(iv) or such other Person (as the
case may be as the Person appointed under this subsection) as the
attorney-in-fact of the Mortgagor (with a power to substitute any other Person
in its place as such attorney-in-fact) to act in the name of the Mortgagor or,
at the option of the Person appointed to act under this subsection, in such
Person's own name, to take the action authorized under Section 5.02(a)(v),
502.(a)(vi), 5.05, 5.07, or 5.10 or such other provision, and to execute,
acknowledge and deliver any document in connection therewith or to take any
other action incidental thereto, as the Person appointed to act under this
subsection shall deem appropriate in its discretion; and the Mortgagor hereby
irrevocably authorizes and directs any other Person to act on behalf of the
foregoing appointment and upon a certificate of the Person appointed to act
under this subsection that such Person is authorized to act under this
subsection.
(f) The Mortgagee shall give the Mortgagor at least ten days' prior
written notice of the time and place of any public sale of personal property
separately from the real property, or the time after which any such private sale
or other intended disposition thereof will be made. The Mortgagee and the
Mortgagor agree that such notice constitutes "reasonable notification" within
the meaning of UCC Section 9- 504(3). After the UCC Revision Date, any such
notice shall contain the information specified in Revised UCC Section 9-613, be
authenticated (as defined in the Revised UCC) and be sent to the parties
required to be notified pursuant to Revised UCC Section 9-611(c); provided that,
if the Mortgagee fails to comply with this sentence in any respect, its
liability for such failure shall be limited to the liability (if any) imposed on
it as a matter of law under the UCC.
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SECTION 5.03. Waivers by the Mortgagor. To the extent permitted under
applicable law, the Mortgagor shall not assert, and hereby irrevocably waives,
any right or defense the Mortgagor may have under any statute or rule of law or
equity now or hereafter in effect relating to (i) appraisement, valuation,
homestead, exemption, extension, moratorium, stay, redemption, marshalling of
the Mortgaged Property or the other assets of the Mortgagor, sale of the
Mortgaged Property in any order or notice of deficiency or intention to
accelerate any Secured Obligation; (ii) impairment of any right of subrogation
or reimbursement; (iii) any requirement that at any time any action must be
taken against any other Person, any portion of the Mortgaged Property or any
other asset of the Mortgagor or any other Person; (iv) any provision barring or
limiting the right of the Mortgagee to sell any Mortgaged Property after any
other sale of any other Mortgaged Property or any other action against the
Mortgagor or any other Person; (v) any provision barring or limiting the
recovery by the Mortgagee of a deficiency after any sale of the Mortgaged
Property; or (vi) any other provision of applicable law (including any provision
relating to decedents' estates) which might defeat, limit or adversely affect
any right or remedy of the Mortgagee or the holders of the Secured Obligations
under or with respect to this Mortgage or the other Security Documents.
SECTION 5.04. Jurisdiction and Process. (a) To the extent permitted
under applicable law, in any suit, action or proceeding arising out of or
relating to this Mortgage or any other Security Document as it relates to any
Mortgaged Property, the Mortgagor irrevocably consents to the jurisdiction of
any state or federal court sitting in the state in which the Property is located
and irrevocably waives any defense or objection which it may now or hereafter
have to the jurisdiction of such court over the venue of such court for or the
convenience of such court as the forum for any such suit, action or proceeding.
(b) Nothing in this Section shall affect the right of the Mortgagee to
bring any suit, action or proceeding arising out of or relating to this Mortgage
or any other Security Document in any court having jurisdiction under the
provisions of any other Security Document or applicable law or to serve any
process, notice of sale or other notice in any manner permitted by any other
Security Document or applicable law.
SECTION 5.05. Sales. Except as otherwise provided herein, to the
fullest extent permitted under applicable law, at the election of the Mortgagee,
the following provisions shall apply to any sale of the Mortgaged Property
hereunder, whether made pursuant to the power of sale hereunder, any judicial
proceeding or any judgment or decree of foreclosure or sale or otherwise:
(a) Any sale may be conducted by the Mortgagee or by an agent
appointed to act on behalf of the Mortgagee and the appointment need
not be recorded. The power of sale hereunder or with respect hereto
shall not be exhausted by any sale as to any part or parcel of the
Mortgaged Property
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which is not sold, unless and until the Secured Obligations shall have
been paid in full, and shall not be exhausted or impaired by any sale
which is not completed or is defective. Any sale may be as a whole or
in part or parcels and, to the fullest extent permitted by law, the
Mortgagor hereby waives its right to direct the order in which the
Mortgaged Property or any part or parcel thereof is sold.
(b) To the extent permitted by law, any sale may be postponed
or adjourned by public announcement at the time and place appointed for
such sale or for such postponed or adjourned sale without further
notice.
(c) After each sale, the Person conducting such sale shall
execute and deliver to the purchaser or purchasers at such sale a good
and sufficient instrument or instruments granting, conveying, assigning
and transferring all right, title and interest of the Mortgagor in and
to the Mortgaged Property sold and shall receive the proceeds of such
sale and apply the same as provided in Section 5.06. The Mortgagor
hereby irrevocably appoints the Person conducting such sale as the
attorney-in-fact of the Mortgagor (with full power to substitute any
other Person in its place as such attorney-in-fact) to act in the name
of the Mortgagor or, at the option of the Person conducting such sale,
in such Person's own name, to make without warranty by such Person any
conveyance, assignment, transfer or delivery of the Mortgaged Property
sold, and to execute, acknowledge and deliver any instrument of
conveyance, assignment, transfer or delivery or other document in
connection therewith or to take any other action incidental thereto, as
the Person conducting such sale shall deem appropriate in its
discretion; and the Mortgagor hereby irrevocably authorizes and directs
any other Person to act upon the foregoing appointment and a
certificate of the Person conducting such sale that such Person is
authorized to act hereunder. Nevertheless, upon the request of such
attorney-in-fact the Mortgagor shall promptly execute, acknowledge and
deliver any documentation which such attorney-in-fact may reasonably
require for the purpose of ratifying, confirming or effectuating the
powers granted hereby or any such conveyance, assignment, transfer or
delivery by such attorney-in-fact. Any statement of fact or other
recital made in any instrument referred to in this Section 5.05(c)
given by the Person conducting any sale as to the nonpayment of any
Secured Obligation, the occurrence of any Event of Default, the amount
of the Secured Obligations due and payable, the notice of the time,
place and terms of sale and of the Mortgaged Property to be sold having
been duly given, the refusal, failure or inability of the Mortgagee to
act, the appointment of any substitute or successor Mortgagee, any
other act or thing having been duly done by Xxxxxxxxx, the Mortgagee or
any other such Person, shall be taken as conclusive and binding, absent
manifest error, against all other Persons as evidence of the truth of
the facts so stated or recited.
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(d) The receipt of the Person conducting any sale for the
purchase money paid at any such sale shall be sufficient discharge
therefor to any purchaser of any Mortgaged Property sold, and no such
purchaser, or its representatives, grantees or assigns, after paying
such purchase price and receiving such receipt, shall be bound to see
to the application of such purchase price or any part thereof upon or
for any trust or purpose of this Mortgage or, in any manner whatsoever,
be answerable for any loss, misapplication or nonapplication of any
such purchase money or be bound to inquire as to the authorization,
necessity, expediency or regularity of such sale.
(e) Subject to mandatory provisions of applicable law, any
sale shall operate to divest all of the estate, right, title, interest,
claim and demand whatsoever, whether at law or in equity, of the
Mortgagor in and to the Mortgaged Property sold, and shall be a
perpetual bar both at law and in equity against the Mortgagor and any
and all Persons claiming such Mortgaged Property or any interest
therein by, through or under the Mortgagor.
(f) At any sale, the Mortgagee may bid for and acquire the
Mortgaged Property sold and, in lieu of paying cash therefor, may make
settlement for the purchase price by causing the Secured Parties to
credit against the Secured Obligations, including the expenses of the
sale and the cost of any enforcement proceeding hereunder, the amount
of the bid made therefor to the extent necessary to satisfy such bid.
(g) In the event that the Mortgagor or any Person claiming by,
through or under the Mortgagor shall transfer or fail to surrender
possession of the Mortgaged Property after any sale thereof, then, to
the extent permitted by law, the Mortgagor or such Person shall be
deemed a tenant at sufferance of the purchaser at such sale, subject to
eviction by means of summary process for possession of land, or subject
to any other right or remedy available hereunder or under applicable
law.
(h) Upon any sale, it shall not be necessary for the Person
conducting such sale to have any Mortgaged Property being sold present
or constructively in its possession.
(i) In the event that a foreclosure hereunder shall be
commenced by the Mortgagee, the Mortgagee may at any time before the
sale abandon the sale, and may institute suit for the collection of the
Secured Obligations or for the foreclosure of
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this Mortgage; or in the event that the Mortgagee should institute a
suit for collection of the Secured Obligations or the foreclosure of
this Mortgage, the Mortgagee may at any time before the entry of final
judgment in said suit dismiss the same and sell the Mortgaged Property
in accordance with the provisions of this Mortgage.
SECTION 5.06. Proceeds. Except as otherwise provided herein and in the
Indenture or required under applicable law, the proceeds of any sale of the
Mortgaged Property hereunder, whether made pursuant to the power of sale
hereunder, any judicial proceeding or any judgment or decree of foreclosure or
sale or otherwise shall be applied and paid as follows:
(a) First: to the payment of all expenses of such sale, including
compensation the Mortgagee or such other Person conducting such sale, the cost
of title searches, foreclosure certificates, title commitments or abstracts, and
attorneys' fees and expenses incurred by such Person, together with interest on
any such expenses paid by such Person at the Post-Default Rate from the date
paid by such Person through the date repaid to such Person;
(b) Second: to the payment of the expenses and other amounts payable
under Sections 4.02 and 5.10; and
(c) Third: to the Mortgagee for deposit in the Cash Collateral Account,
to be held, applied and disbursed in accordance with Section 6.10 of the
Indenture.
SECTION 5.07. Assignment of Leases. (a) Subject to Section 5.07(d)
below, the assignments of the Leases and the Rents under Granting Clauses VI and
VII are and shall be present, absolute and irrevocable assignments by the
Mortgagor to the Mortgagee and, subject to the license to the Mortgagor under
Section 5.07(b), the Mortgagee or a Receiver appointed pursuant to Section
5.02(a)(iv) (as the case may be as the Person exercising the rights under this
Section) shall have the absolute, immediate and continuing right to collect and
receive all Rents now or hereafter, including during any period of redemption,
accruing with respect to the Property. At the request of the Mortgagee or such
Receiver, the Mortgagor shall promptly execute, acknowledge, deliver, record,
register and file any additional general assignment of the Leases or specific
assignment of any Lease which the Mortgagee or such Receiver may reasonably
require from time to time (all in form and substance satisfactory to the
Mortgagee or such Receiver) to effectuate, complete, perfect, continue or
preserve the assignments of the Leases and the Rents under Granting Clauses VI
and VII.
(b) As long as no Event of Default is continuing, the Mortgagor shall
have the right under a license granted hereby, subject to Section 5.05(c), to
collect all Rents upon, but not prior to thirty (30) days before, the due date
thereof.
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(c) If an Event of Default is continuing, the Mortgagee or a Receiver
appointed pursuant to Section 5.02(a)(iv) (as the case may be as the Person
exercising the rights under this Section) shall have the right to terminate the
license granted under Section 5.07(b) by notice to the Mortgagor and to exercise
the rights and remedies provided under Section 5.07(a), under Sections
5.02(a)(v) and (vi) or under applicable law. If an Event of Default is
continuing, upon demand by the Person exercising the rights under this Section,
the Mortgagor shall promptly pay to such Person all Security Deposits under the
Leases and all Rents allocable to any period after the occurrence of such Event
of Default. Subject to Sections 5.02(a)(v) and (vi) and any applicable
requirement of law, any Rents received hereunder by the Person exercising the
rights under this Section shall be promptly paid to the Mortgagee, and any Rents
received hereunder by the Mortgagee shall be deposited in the Cash Collateral
Account, to be held, applied and disbursed as provided in the Pledge and
Security Agreement and the Indenture, provided that, subject to Sections
5.02(a)(v) and (vi) and any applicable requirement of law, any Security Deposits
actually received by such Person shall be promptly paid to the Mortgagee, and
any Security Deposits actually received by the Mortgagee shall be held, applied
and disbursed as provided in the applicable Leases and applicable law.
(d) Nothing herein shall be construed to be an assumption by the Person
exercising the rights under this Section, or to otherwise make such Person
liable for the performance, of any of the obligations of the Mortgagor under the
Leases, provided that such Person shall be accountable as provided in Section
5.07(c) for any Rents or Security Deposits actually received by such Person.
SECTION 5.08. Dealing with the Mortgaged Property. Subject to Section
7.01, the Mortgagee shall have the right to release any portion of the Mortgaged
Property to or at the request of the Mortgagor, for such consideration as the
Mortgagee may require without, as to the remainder of the Mortgaged Property, in
any way impairing or affecting the Lien or priority of this Mortgage, or
improving the position of any subordinate lienholder with respect thereto,
except to the extent that the Secured Obligations shall have been reduced by any
actual monetary consideration received for such release and applied to the
Secured Obligations, and may accept by assignment, pledge or otherwise any other
property in place thereof as the Mortgagee may require without being accountable
therefor to any other lienholder.
SECTION 5.09. Right of Entry. The Mortgagee and the representatives of
such Mortgagee shall have the right, (i) without prior notice if an Event of
Default is continuing or such entry is necessary in the reasonable opinion of
the Mortgagee to preserve the Mortgagee's rights under this Mortgage or with
respect to the Mortgaged Property, or (ii) after reasonable notice and subject
to reasonable rules and procedures for safety and security established by the
Mortgagor if no Event of Default is continuing, to enter upon the Property at
all reasonable times, as often as
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such Person may reasonably require, to inspect the Mortgaged Property or,
subject to the provisions hereof, to exercise any right, power or remedy of such
Person hereunder, provided that any Person so entering the Property shall not
unreasonably interfere with the ordinary conduct of Xxxxxxxxx's business, and
provided further that no such entry on the Property for the purpose of
performing obligations under Section 5.10 or any other purpose shall be
construed to be (x) possession of the Property by such Person or to constitute
such Person as a trustee or mortgagee in possession, unless such Person
exercises its right to take possession of the Property under Section 5.02(a)(v),
or (y) a cure of any Default or waiver of any Default or Secured Obligation.
SECTION 5.10. Right to Perform Obligations. If the Mortgagor fails to
pay or perform any obligation of the Mortgagor hereunder or under any other
Security Document, the Mortgagee and the representatives of the Mortgagee shall
have the right, (i) without notice if an Event of Default is continuing or such
payment or performance is necessary in the reasonable opinion of the Mortgagee
to preserve the Mortgagee's rights under this Mortgage or with respect to the
Mortgaged Property, or (ii) after reasonable notice if no Event of Default is
continuing, to pay or perform such obligation, provided that no such payment or
performance shall be construed to be a cure of any Default or waiver of any
Default or Secured Obligation. If, pursuant to the terms of this Mortgage, the
Mortgagee shall make any payment on behalf of the Mortgagor, the amount so paid
shall be reimbursable by the Mortgagor immediately upon such payment together
with interest accrued thereon at the Post- Default Rate to the date of
reimbursement. The obligation of the Mortgagor to reimburse the Mortgagee for
such payment, as well as interest accrued thereon, shall be part of the Secured
Obligations and shall be secured by this Mortgage.
SECTION 5.11. Concerning the Mortgagee. (a) The provisions of Article 7
of the Indenture with respect to the Trustee shall inure to the benefit of the
Mortgagee in respect of this Mortgage as if incorporated herein and shall be
binding upon the parties to the Indenture and the holders of the Notes in such
respect. In furtherance and not in derogation of the rights, privileges and
immunities of the Mortgagee therein set forth:
(i) The Mortgagee is authorized to take all such action as is
provided to be taken by it as Mortgagee hereunder and all other action
reasonably incidental thereto. As to any matters not expressly provided
for herein (including the timing and methods of realization upon the
Mortgaged Property), the Mortgagee shall act or refrain from acting in
accordance with written instructions from the Trustee or the holders of
a majority in principal amount of the Notes or, in the absence of such
instructions, in accordance with its discretion.
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(ii) The Mortgagee shall not be responsible for the existence,
genuineness or value of any of the Mortgaged Property or for the
validity, perfection, priority or enforceability of the Lien of this
Mortgage on any of the Mortgaged Property, whether impaired by
operation of law or by reason of any action or omission to act on its
part hereunder. The Mortgagee shall have no duty to ascertain or
inquire as to the performance or observance of any of the terms of this
Mortgage by the Mortgagor.
(b) At any time or times, in order to comply with any legal requirement
in any jurisdiction, the Mortgagee may appoint another bank or trust company or
one or more other Persons, either to act as co-agent or co-agents, jointly with
the Mortgagee, or to act, in accordance with the provisions of this Mortgage, as
separate agent or agents on behalf of the Secured Parties with such power and
authority as may be necessary for the effectual operation of the provisions
hereof and may be specified in the instrument of appointment (which may, in the
discretion of the Mortgagee, include provisions for the protection of such
co-agent or separate agent similar to the provisions of Section 5.11).
ARTICLE 6
SECURITY AGREEMENT AND FIXTURE FILING
SECTION 6.01. Security Agreement. To the extent that the Mortgaged
Property includes personal property or items of personal property which are or
are to become fixtures under applicable law, this Mortgage shall also be
construed as a Security Agreement under the UCC; and, if an Event of Default is
continuing, the Mortgagee shall be entitled with respect to such personal
property to all remedies available under the UCC and all other remedies
available under applicable law. Without limiting the foregoing, if an Event of
Default is continuing, any personal property may, at Mortgagee's option, (i) be
sold hereunder, (ii) be sold pursuant to the UCC or (iii) be dealt with by the
Mortgagee in any other manner permitted under applicable law. The Mortgagee may
require the Mortgagor to assemble the personal property and make it available to
the Mortgagee at a place to be designated by the Mortgagee. If an Event of
Default is continuing, the Mortgagee shall be the attorney-in-fact of the
Mortgagor with respect to any and all matters pertaining to the personal
property with full power and authority to give instructions with respect to the
collection and remittance of payments, to endorse checks, to enforce the rights
and remedies of the Mortgagor and to execute on behalf of the Mortgagor and in
Xxxxxxxxx's name any instruction, agreement or other writing required therefor.
The Mortgagor acknowledges and agrees that a disposition of the personal
property in accordance with the Mortgagee's rights and remedies in respect to
the Property as heretofore provided is a commercially reasonable disposition
thereof.
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SECTION 6.02. Fixture Filing. To the extent that the Mortgaged Property
includes items of personal property which are or are to become fixtures under
applicable law, and to the extent permitted under applicable law, the filing of
this Mortgage in the real estate records of the county in which such Mortgaged
Property is located shall also operate from the time of filing as a fixture
filing with respect to such Mortgaged Property, and the following information is
applicable for the purpose of such fixture filing, to wit:
(a) Name and Address of the debtor:
NSA Ltd.
c/o Century Aluminum Company
0000 Xxxxxx Xxxx
Xxxxxxxx X, Xxxxx 000
Xxxxxxxx, XX 00000
(b) Name and Address of the secured party:
Wilmington Trust Company, as Collateral Agent
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
(c) This document covers goods or items of personal property
which are or are to become fixtures upon the Land and Improvements.
(d) The names of the record owners of the Land and
Improvements on which such fixtures are or are to be located are NSA,
Ltd and Glencore Acquisition Company.
SECTION 6.03. Further Assurances; General Covenants The Mortgagor
covenants as follows: (a) The Mortgagor will execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or
notices as may be necessary, as are required by applicable law, or as the
Mortgagee may reasonably request, in order to perfect and preserve the Lien
granted or purported to be granted by this Mortgage.
(b) To the extent permitted by applicable law, the Mortgagor authorizes
the Mortgagee to execute and file such financing statements or continuation
statements without the Mortgagor's signature appearing thereon. The Mortgagee
will provide a copy of any such financing statement to the Mortgagor upon its
filing. The Mortgagor agrees that a carbon, photographic, photostatic or other
reproduction of this Mortgage or of a financing statement is sufficient as a
financing statement. The Mortgagor constitutes the Mortgagee its
attorney-in-fact to execute and file all filings required or so requested for
the foregoing purposes, all acts of such attorney being hereby ratified and
confirmed; and such power, being coupled with an interest, shall
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be irrevocable until all the Liens terminate pursuant to Section 7.01. The
Mortgagor will pay the costs of, or incidental to any recording or filing of any
financing or continuation statements or other documents recorded or filed
pursuant hereto.
(c) The Mortgagor will not (i) change its name or structure (including
its jurisdiction of organization), (ii) change its location (determined as
provided in Revised UCC Section 9-307) or (iii) become bound, as provided in
Revised UCC Section 9-203(d) or otherwise, by a security agreement entered into
by another Person, unless it shall have given the Mortgagee prior notice thereof
and delivered an Opinion of Counsel with respect thereto in accordance with
Section 6.03(e).
(d) Before the applicable UCC Revision Date, the Mortgagor will not
change the location of its chief executive office or chief place of business or
the locations where it keeps or holds any Mortgaged Property, unless it shall
have given the Mortgagee prior notice thereof and delivered an Opinion of
Counsel with respect thereto in accordance with Section 6.03(e). It will not in
any event change the location of any Mortgaged Property owned by it if such
change would cause the Lien on such Mortgaged Property to lapse or cease to be
perfected.
(e) At least 30 days before it takes any action contemplated by Section
6.03(c) or 6.03(d), the Mortgagor will, at its expense, cause to be delivered to
the Mortgagee an Opinion of Counsel, in form and substance satisfactory to the
Mortgagee, to the effect that (i) all financing statements and amendments or
supplements thereto, continuation statements and other documents required to be
filed or recorded in order to perfect and protect the Liens against all
creditors of and purchasers from the Mortgagor after it takes such action
(except any continuation statements specified in such Opinion of Counsel that
are to be filed more than six months after the date thereof) have been filed or
recorded in each office necessary for such purpose, (ii) all fees and taxes, if
any, payable in connection with such filings or recordations have been paid in
full and (iii) such action will not materially adversely impair the perfection
or priority of the Lien on any Mortgaged Property after it takes such action or
the accuracy of the Mortgagor's representations and warranties herein relating
to such Mortgaged Property.
(f) The Mortgagor covenants that it will (i) on or prior to the date
hereof, in the case of Equipment now owned by it that is part of the Mortgaged
Property and which constitute goods in which a security interest is perfected by
a notation on the certificate of title or similar evidence of the ownership of
such goods ("PLEDGED EQUIPMENT"), and (ii) within 10 days after it acquires any
other Pledged Equipment, deliver to the Mortgagee any and all certificates of
title, applications for title or similar evidence of ownership of such Equipment
and will cause the Mortgagee to be named as lienholder on any such certificate
of title or other evidence of ownership. The Mortgagor will promptly inform the
Mortgagee of any additions to or deletions from its Pledged Equipment and will
not permit any of its Pledged Equipment to
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become a fixture to real estate or an accession to any personal property that is
not, in either case, included in the Mortgaged Property.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Release of Mortgaged Property. (a) This Mortgage shall
cease, terminate and thereafter be of no further force or effect (except as
provided in Section 4.02 hereof) in the event all of the Secured Obligations
shall have been paid in full and the Mortgagor shall have performed and observed
all of the covenants, obligations and conditions to be performed by the
Mortgagor pursuant to the Credit Documents. Upon such termination and at the
Mortgagor's request and expense and upon compliance with the provisions of
Section 11.06 of the Indenture, the Mortgagee shall execute and deliver to the
Mortgagor an instrument, in proper form for recording, without warranty,
releasing the Lien of this Mortgage and reconveying the Mortgaged Property.
(b) Any termination or release required or permitted under this Section
7.01 or under the Indenture shall be at the Mortgagor's request and expense and
either in the statutory form or in a form reasonably satisfactory to the
Mortgagee.
SECTION 7.02. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(i) if to the Mortgagor:
NSA, Ltd.
c/o Century Aluminum Company
0000 Xxxxxx Xxxx
Xxxxxxxx X
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Chief Financial Officer
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(ii) if to the Mortgagee:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Department
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 7.03. Amendments in Writing. No provision of this Mortgage
shall be modified, waived or terminated, and no consent to any departure by the
Mortgagor from any provision of this Mortgage shall be effective, unless the
same shall be by an instrument in writing, signed by the Mortgagor and the
Mortgagee in compliance with all the terms and provisions of the Indenture. Any
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
SECTION 7.04. Severability. All rights, powers and remedies provided in
this Mortgage may be exercised only to the extent that the exercise thereof does
not violate applicable law, and all the provisions of this Mortgage are intended
to be subject to all mandatory provisions of applicable law and to be limited to
the extent necessary so that they will not render this Mortgage illegal,
invalid, unenforceable or not entitled to be recorded, registered or filed under
applicable law. If any provision of this Mortgage or the application thereof to
any Person or circumstance shall, to any extent, be illegal, invalid or
unenforceable, or cause this Mortgage not to be entitled to be recorded,
registered or filed, the remaining provisions of this Mortgage or the
application of such provision to other Persons or circumstances shall not be
affected thereby, and each provision of this Mortgage shall be valid and be
enforced to the fullest extent permitted under applicable law.
SECTION 7.05. Binding Effect. (a) The provisions of this Mortgage shall
be binding upon and inure to the benefit of each of the parties hereto and their
respective successors and assigns; and all references herein to the "Mortgagor"
and the "Mortgagee" shall include the respective successors and assigns of such
parties.
(b) To the fullest extent permitted under applicable law, the
provisions of this Mortgage binding upon the Mortgagor shall be deemed to be
covenants which run with the land.
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(c) Nothing in this Section shall be construed to permit the Mortgagor
to Transfer or xxxxx x Xxxx upon the Mortgaged Property contrary to the
provisions of the Indenture.
SECTION 7.06. GOVERNING LAW. THIS MORTGAGE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE LAND AND
IMPROVEMENTS ARE LOCATED, EXCEPT AS OTHERWISE REQUIRED BY MANDATORY PROVISIONS
OF LAW AND EXCEPT TO THE EXTENT THAT REMEDIES PROVIDED BY THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE WHERE THE LAND AND IMPROVEMENTS ARE LOCATED
ARE GOVERNED BY THE LAWS OF SUCH JURISDICTION.
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IN WITNESS WHEREOF, the Xxxxxxxxx has executed and delivered this
Mortgage as of the day first set forth above.
Mortgagor:
NSA, Ltd., a Kentucky limited
partnership
By: Metalsco, Ltd., a Georgia
[corporate seal] corporation, its general partner
By:______________________________
Name:
Title:
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STATE OF NEW YORK )
COUNTY OF NEW YORK ) SS:
)
The foregoing instrument was acknowledged before me this 30th day of
March, 2001, by _________________ as ___________ of Metalsco, Ltd., a Georgia
corporation, as general partner of NSA, LTD. a Kentucky limited partnership, on
behalf of the corporation and the limited partnership.
My commission expires:
[SEAL] __________________________
Notary Public
This instrument was prepared by the attorney described below in consultation
with counsel in Kentucky.
_________________________________
Xxxxx X. XxXxxxxx
45
EXHIBIT A
DESCRIPTION OF THE LAND
A-2
