EXHIBIT 10(E)
This instrument prepared by:
Xxxxxxx X. Xxxxx
Xxxxxxx Xxxxx Rose & White LLP
0000 Xxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx 00000-0000
STATE OF ALABAMA )
:
COLBERT, LAUDERDALE and
LIMESTONE COUNTIES )
REAL ESTATE MORTGAGE, SECURITY AGREEMENT
AND FINANCING STATEMENT
This Real Estate Mortgage, Security Agreement and Financing Statement
is made and entered into on or as of the 4th day of April, 2002, by and between
XXXXXX INDUSTRIES, INC., a Delaware corporation (whether one or more,
"Mortgagors"), whose address is 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx
00000 and M-TIN, LLC, an Alabama limited liability company ("Mortgagee"), whose
address is 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000.
WITNESSETH:
WHEREAS, Mortgagors have become justly indebted to Mortgagee in the
sum of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00)
together with interest thereon, as evidenced by a promissory note or notes of
even date herewith.
NOW, THEREFORE, in consideration of the indebtedness described above
and other valuable consideration to Mortgagors the receipt and sufficiency of
which are hereby acknowledged, and in order to secure the payment and
performance of the indebtedness described above, any extensions, renewals,
modifications and increases thereof and substitutions therefor and all interest
thereon, and all sums advanced by Mortgagee pursuant to the terms of this
mortgage, and all other indebtedness (including future loans and advances) now
or hereafter owed to Mortgagee by any of the undersigned, whether such
indebtedness is primary or secondary, direct or indirect, contingent or
absolute, matured or unmatured, joint or several, and otherwise secured or not
(all of the foregoing being sometimes referred to collectively in this mortgage
as the "Secured Indebtedness"), and to secure compliance with all the covenants
and stipulations hereinafter contained, Mortgagors do hereby grant, bargain,
sell, convey, assign, grant a security interest in, transfer and warrant unto
Mortgagee the following described real property and rights (collectively the
"Mortgaged Property").
(a) Fee Property. All those certain lot(s), piece(s) or parcel(s)
of land located in Colbert, Limestone and Lauderdale
Counties, Alabama more particularly described in Exhibit A,
as the description of the same may be amended or supplemented
from
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time to time, and all and singular the reversions and
remainders in and to said land and the tenements,
hereditaments, easements, rights-of-way or use, rights
(including mineral and mining rights, and all water, oil and
gas rights), privileges, royalties and appurtenances to said
land, now or hereafter belonging or in anywise appertaining
thereto, including any right, title, interest in, to or under
any agreement or right granting, conveying or creating, for
the benefit of said land, any easement, right or license in
any way affecting other property and in, to or under any
streets, ways, alleys, vaults, gores or strips of land
adjoining said land or any parcel thereof, or in or to the
air space over said land, all rights of ingress and egress by
motor vehicles to parking facilities on or within said land,
and all claims or demands of the Mortgagor either at law or
in equity, in possession or expectancy of, in or to the same
(all of the foregoing being hereinafter collectively called
the "Fee Property").
(b) Rights Under Lease. (i) The following leases: (A) that
certain lease dated as of February 1, 1997, between The
Industrial Development Board of the City of Athens, as
lessor, and the Mortgagor, as lessee, recorded in the Office
of the Judge of Probate of Limestone County, Alabama, in Deed
Book 747, at page 749, (B) that certain lease dated as of
December 1, 1964, between The Industrial Development Board of
the City of Athens, as lessor, and the Mortgagor, as lessee,
recorded in the Office of the Judge of Probate of Limestone
County, Alabama, in Deed Book 642, at page 670, (C) that
certain lease dated as of May 1, 1969, between The Industrial
Development Board of the City of Athens, as lessor, and the
Mortgagor, as lessee, recorded in the Office of the Judge of
Probate of Limestone County, Alabama, in Deed Book 685, at
page 207, (D) that certain lease dated as of June 14, 1973,
between The Industrial Development Board of the City of
Athens, as lessor, and the Mortgagor, as lessee, recorded in
the Office of the Judge of Probate of Limestone County,
Alabama, in Deed Book 714, at page 820, and (E) that certain
lease dated as of August 1, 1978, between The Industrial
Development Board of the City of Xxxxxxxx, as lessor, and the
Borrower, as lessee, recorded in the Office of the Judge of
Probate of Lauderdale County, Alabama, in Deed Book 1139, at
page 1133 (collectively hereinafter called the "Lease"), and
the Mortgagor's leasehold estate and interest under the Lease
in and to all those certain lot(s), piece(s) or parcel(s) of
land described in the Lease and located in Limestone and
Lauderdale Counties, Alabama more particularly described in
Exhibit B, as the description of the same may be amended or
supplemented from time to time, and all and singular the
reversions and remainders in and to said land and the
tenements, hereditaments, easements, rights-of-way or use,
rights (including mineral, water, oil and gas rights),
privileges, royalties and appurtenances to said land, now or
hereafter belonging or in anywise appertaining thereto,
including any right, title, interest of the Mortgagor in, to
or under the Lease in any agreement or right granting,
conveying or creating, for the benefit of said land, any
easement, right or license in any way affecting other
property and in, to or under any streets, ways, alleys,
vaults, gores or strips of land adjoining said land or any
parcel thereof, or in or to the air space over said land, all
rights of ingress and egress by motor vehicles to parking
facilities on or within said land, and all claims or demand
of Mortgagor
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either at law or in equity, in possession or expectancy of,
in or to the same (all of the foregoing being hereinafter
collectively called the "Leasehold Property" and together
with the Fee Property being called the "Land"); (ii) all
other rights, titles and privileges under the Lease in and to
the Leasehold Property, or any part thereof, including any
reversions and remainders in and to the Mortgagor's interest
in the leasehold Property; and (iii) any and all right, title
and interest of the Mortgagor in and to (A) all
modifications, extensions, renewals, supplements and
restatements of the Lease; (B) all credits and deposits made
thereunder; (C) all options and rights to renew or extend the
same, including, but not limited to, the options contained in
the Lease; (D) all options and rights to purchase or of first
refusal with respect to the Leasehold Property, or any part
thereof, including, but not limited to, the options and
rights contained in the Lease; and (E) all other, further or
additional title, estate, options, privileges, interest or
rights that the Mortgagor may now or hereafter acquire in and
to the Leasehold Property and the Lease.
(c) Improvements. All buildings, structures, facilities and other
improvements now or hereafter located on the Land, and all
building material, building equipment and fixtures of every
kind and nature now or hereafter located on the Land or
attached to, contained in, or used in connection with, any
such buildings, structures, facilities or other improvements,
and all appurtenances and additions thereto and betterments,
renewals, substitutions and replacements thereof, now owned
by the Borrower or in which the Borrower has or shall acquire
an interest (all of the foregoing being hereinafter
collectively called the "Improvements," and together with the
Land called the "Real Property").
(d) Tenant Leases and Rents. (i) All leases, subleases, lettings
and licenses, and other use and occupancy agreements, written
or oral, covering any of the Real Property with respect to
which the Mortgagor is the lessor, licensor or sublessor,
including any of the same now in existence (all of the
foregoing being hereinafter collectively called the "Existing
Tenant Leases"), and any and all other such agreements
hereinafter made or entered into (all the foregoing being
hereinafter collectively called the "Tenant Leases"); (ii)
any and all guaranties of the performance of the lessee,
licensee, sublessee or occupant (all of the foregoing being
hereinafter collectively called the "Tenants") under any of
the Tenant Leases; (iii) the immediate and continuing right
to collect and receive all of the rents, income, receipts,
revenues, issues and profits now due or that may become due
or to which the Mortgagor may now or shall hereafter
(including during the period of redemption, if any) become
entitled or may demand or claim, arising or issuing from or
out of the Tenant Leases, the Real Property, or any part
thereof, including minimum rents, additional rents,
percentage rents, common area maintenance charges, parking
charges, tax and insurance premium contributions, and
liquidated damages following default, the premium payable by
any Tenant upon the exercise of any cancellation privilege
provided for in any of the Tenant Leases, and all proceeds
payable under any policy of insurance covering loss of rents
resulting from untenantability caused by
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destruction or damage to the Real Property, together with any
and all rights and claims of any kind that the Mortgagor may
have against any Tenant (all such moneys, rights and claims
described in this section hereinafter collectively referred
to as the "Rents"); provided, however, that so long as no
Event of Default (as defined in the instruments evidencing
the Secured Indebtedness) has occurred, the Mortgagor shall
have the right under a license granted hereby to collect,
receive and retain the Rents, but no Rents shall be collected
prior to the due date thereof; and (iv) any aware, dividend
or other payment made hereafter to the Mortgagor in any court
procedure involving any of the Tenants in any bankruptcy,
insolvency or reorganization proceedings before any
governmental authority and any and all payments made by
Tenants in lieu of rent.
(e) Insurance Policies. All policies of hazard insurance now or
hereafter in effect that insure the Improvements, or any part
thereof, together with all right, title and interest of the
Mortgagor in and to each and every such policy, including any
premiums paid and rights to returned premiums.
(f) Condemnation Awards. All judgments, damages, settlements,
awards, payments and compensation, including all interest
thereon, together with the right to receive the same, that
may be made or due to the Mortgagor or any subsequent owner
of any of the Real Property, or any other property or rights
conveyed or encumbered hereby, as a result of (i) the
exercise of the right of eminent domain or condemnation, (ii)
the alteration of the grade of any street or (iii) any other
injury to or diminution or decrease in value of the Real
Property, the Tenant Leases, the Rents or any other such
property or rights.
(g) Supplemental Documents. All changes, additions, supplements,
modifications, amendments, extensions, renewals, revisions
and guaranties to, of or for any agreement or instrument
included in the foregoing.
(h) Proceeds. All proceeds (including insurance proceeds) of any
of the foregoing, or of any part thereof.
TO HAVE AND TO HOLD the same and every part thereof unto Mortgagee,
its successors and assigns forever.
For the purpose of further securing the payment of all of the Secured
Indebtedness Mortgagors represent, warrant, covenant and agree with Mortgagee,
its successors and assigns, as follows:
1. That they are lawfully seized in fee and possessed of the
Mortgaged Property subject to easements, restrictions, encumbrances of record,
matters that would be revealed by a current survey, and liens for ad valorem
taxes not yet due and payable, they have a good right to convey the
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same as aforesaid, and they will warrant and forever defend the title of
Mortgagee to the Mortgaged Property against the lawful claims of all persons
whomsoever.
2. That they will pay when due all taxes, assessments, and other
liens or mortgages, taking priority over this mortgage. If Mortgagors' interest
in the Mortgaged Property or any part thereof is other than a freehold estate,
Mortgagors agree to pay all rents and perform all covenants due to be paid and
performed under the lease or other agreement whereby such interest is created
exactly when due, to maintain such lease or agreement in full force and effect
in accordance with its terms, and not to attempt to amend or terminate the
lease or agreement without Mortgagee's prior written consent.
3. That they will keep the buildings and other improvements now
or hereafter located on the Mortgaged Property and all building materials,
appliances, equipment, fixtures and fittings now or hereafter located on the
Mortgaged Property and the other personal property described above continuously
insured against loss or damage, including loss by fire (including so-called
extended coverage), wind and such other hazards (including flood and water
damage) as Mortgagee may reasonably specify from time to time, with loss, if
any, payable to Mortgagee under a standard mortgagee's clause providing at
least thirty (30) days notice to Mortgagee before cancellation or lapse of such
insurance, and will deposit with Mortgagee policies of such insurance or, at
Mortgagee's election, certificates thereof, and will pay the premiums therefor
as the same become due. Mortgagors may provide such insurance through an
existing policy or a policy or policies independently obtained and paid for by
Mortgagors. Mortgagee may, for reasonable cause, refuse to accept any policy of
insurance offered or obtained by Mortgagors. Mortgagors shall give prompt
notice in writing to Mortgagee of any loss or damage to the Mortgaged Property
from any cause whatever. If Mortgagors fail to keep said property insured as
above specified, Mortgagee may insure said property for its insurable value or
the unpaid balance of the Secured Indebtedness against loss by fire, wind and
other hazards for the benefit of Mortgagors and Mortgagee or for the benefit of
Mortgagee alone, at Mortgagee's election. The proceeds of all insurance on the
Mortgaged Property and the other personal property described above shall be
paid by the insurer to Mortgagee, which is hereby granted full power to settle
and compromise claims under all policies, to endorse in the name of Mortgagors
any check or draft representing the proceeds of any such insurance, and to
demand, receive and give receipt for all sums becoming due thereunder.
Insurance proceeds collected by or paid to Mortgagee may be credited on the
indebtedness secured by this mortgage, less costs of collection, or may be used
in repairing or reconstructing the improvements on the Mortgaged Property, at
Mortgagee's election. No crediting of insurance proceeds to the Secured
Indebtedness and no application of insurance proceeds to repairing or
reconstructing improvements on the Mortgaged Property shall extend or postpone
the due date of any scheduled payments of the Secured Indebtedness or reduce
the amount of such payments. In the event of a dispute with any insurer
regarding coverage, the amount of any loss, or the like, Mortgagee may bring an
action or join in any action against the insurer, at Mortgagee's election. If
Mortgagee elects not to bring an action or to join in any action and Mortgagors
elect to pursue any claim or action against the insurer, Mortgagors agree to do
so solely at their expense, and Mortgagors waive any right to require Mortgagee
to join in the claim or action or to charge Mortgagee with any part of the
expenses of the claim or action even if Mortgagee benefits from it.
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4. That they will take good care of the Mortgaged Property and
the personal property described above and will not commit or permit any waste
thereon or thereof, and they will keep the same repaired and at all times will
maintain the same in as good condition as it now is, reasonable wear and tear
alone excepted. If Mortgagors fail to make repairs to the Mortgaged Property,
Mortgagee may make such repairs at Mortgagors' expense. Mortgagee, its agents
and employees, may enter the Mortgaged Property and any improvements thereon at
any reasonable time for the purpose of inspecting or repairing such
improvements.
5. That upon failure of Mortgagors to perform any covenant
herein made, Mortgagee shall have the right and power, at its election, to
perform such act on behalf of Mortgagors, but Mortgagee shall have no duty to
perform such act or to give notice of its intention not to perform, whether or
not it has performed or given notice of its intention not to perform on one or
more previous occasions. All amounts expended by Mortgagee for insurance or for
the payment of taxes or assessments or to discharge liens or mortgages on the
Mortgaged Property or other obligations of Mortgagors or to make repairs to the
Mortgaged Property or any improvements thereon shall become a debt due
Mortgagee, shall be payable at once without demand upon or notice to any
person, shall bear interest at the rate of interest payable on the principal
sum of the note described above, or if no such rate of interest is specified in
the note, or if the rate specified would be unlawful, at the rate of 8% per
annum from the date of payment by Mortgagee until date paid by Mortgagors, and
such debt and the interest thereon shall be secured by this mortgage. Upon
failure of Mortgagors to reimburse Mortgagee for all amounts so expended, at
the election of Mortgagee and with or without notice to any person, Mortgagee
may declare the entire Secured Indebtedness to be due and payable and may
foreclose this mortgage as hereinafter provided or as provided by law.
6. That no delay or failure of Mortgagee to exercise any option
to declare the maturity of any debt secured by this mortgage shall be deemed a
waiver of the right to exercise such option or to declare such forfeiture
either as to past, present or future defaults on the part of Mortgagors, and
that the procurement of insurance or payment of taxes or other liens or
assessments or performance of other obligations of Mortgagors by Mortgagee
shall not constitute or be deemed to be a waiver of the right to accelerate the
maturity of the Secured Indebtedness by reason of the failure of Mortgagors to
procure such insurance or to pay such taxes, liens, or assessments or perform
such other obligations, it being agreed by Mortgagors that no terms or
conditions contained in this mortgage can be waived, altered or changed except
by a writing signed by Mortgagee.
7. That, unless Mortgagee's written consent has been obtained in
advance, (a) Mortgagor will not cause or allow possession of the Mortgaged
Property to be in any other person or entity to the exclusion of Mortgagors,
(b) Mortgagor will not cut, remove, sell or contract to sell any standing
timber from the Mortgaged Property, and (c) Mortgagor will not sell, assign,
transfer, convey, lease, or sublet all or any part of the Mortgaged Property or
any oil, gas or mineral rights or other interest therein, excluding only the
creation of a lien or encumbrance expressly subordinate to this mortgage.
Mortgagee may condition its consent to any such transfer of possession of, or
an interest in, the Mortgaged Property upon the obligors' or transferee's
agreeing to pay a greater rate of interest on all or any part of the
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Secured Indebtedness or to adjust the payment schedule of all or any part of
the Secured Indebtedness, and upon Mortgagee's approval of the creditworthiness
of the transferee and the transferee's payment to Mortgagee of a reasonable
transfer or assumption fee.
8. That, except as otherwise expressly disclosed by Mortgagors
to Mortgagee in writing on the date of this mortgage, no Hazardous Substance
(as defined below) has been spilled, released, discharged, or disposed of on or
under the Mortgaged Property by Mortgagors or, to the best of Mortgagors'
knowledge, by any third party or any predecessor in interest or title to
Mortgagors; no underground storage tanks, whether in use or not in use, are
located in, on or under any part of the Mortgaged Property; Mortgagors and the
Mortgaged Property are in compliance with all applicable local, state and
federal environmental laws and regulations, and Mortgagors will at all times
cause the Mortgaged Property to continue to be in compliance therewith; no
notice has been received by Mortgagor from any governmental authority or any
individual or entity claiming violation of any environmental protection law or
regulation, or demanding compliance with any environmental protection law or
regulation, or demanding payment, indemnity, or contribution for any
environmental damage or injury to natural resources, relating in any way to the
Mortgaged Property, and Mortgagors will notify Mortgagee promptly in writing if
any such notice is hereafter received by Mortgagors; and any Hazardous
Substance used or produced in Mortgagors' business will be used, produced,
stored, and disposed of in strict compliance with all applicable environmental
laws and regulations. Mortgagors will notify Mortgagee immediately if any
Hazardous Substance is spilled, released or discovered on or under the
Mortgaged Property, and Mortgagors will take or cause to be taken such remedial
action and work as may be necessary to be performed on the Mortgaged Property
in order to remedy such spilled, released or discovered Hazardous Substance and
to obtain a certificate of remediation or other certificate of compliance from
all applicable governmental authorities. Upon Mortgagee's request, Mortgagors
will promptly obtain, at Mortgagors' expense, and deliver to Mortgagee an
environmental inspection report or update of a previous report, in form
acceptable to Mortgagee, prepared by a competent and reputable environmental
engineer reasonably satisfactory to Mortgagee. As used herein, the term
"Hazardous Substance" includes, without limitation, any asbestos, urea
formaldehyde foam insulation, explosive, radioactive material, hazardous
material, hazardous waste, hazardous or toxic substance, or related or
unrelated substance or material which is defined, regulated, controlled,
limited or prohibited in or by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (CERCLA) (42 U.S.C. Sections 9601 et.
seq.), the Hazardous Materials Transportation Act (49 U.S.C. Sections 1801 et.
seq.), the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. Section
6901 et. seq.), the Clean Water Act (33 U.S.C. Sections 1251 et. seq.), the
Clean Air Act (42 U.S.C. Section 7401 et. seq.), the Toxic Substances Control
Act (15 U.S.C. Section 2601 et. seq.), as any of the foregoing is now or
hereafter amended, or in any other federal, state or local environmental law,
ordinance, rule or regulation now or hereafter in effect.
9. That Mortgagors will indemnify and hold Mortgagee harmless
from and against any and all loss, cost, damage, claim, liability and expense
(including attorneys' fees and litigation expenses) incurred by Mortgagee on
account of breach by Mortgagors' of any representation, warranty or covenant
set forth in the immediately preceding paragraph, or any other matter related
to environmental conditions on, under or affecting the Mortgaged Property not
heretofore disclosed to Mortgagee.
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10. That all of the covenants and agreements of Mortgagors herein
contained shall extend to and bind their respective heirs, executors,
administrators, successors and assigns, and that such covenants and agreements
and all options, rights, privileges and powers herein given, granted or secured
to Mortgagee shall inure to the benefit of Mortgagee and its successors and
assigns. As used in this mortgage, the term "Mortgagors" also means
"Mortgagors, or any of them"; the singular includes the plural, and vice versa;
and the use of one gender includes all other genders. The obligations of
Mortgagors hereunder are joint and several. The provisions of this mortgage and
of the note or notes secured hereby are severable, and the invalidity or
unenforceability of any provision of this mortgage or of any such note or notes
shall not affect the validity and enforceability of the other provisions of
this mortgage or of such note or notes. The remedies provided to Mortgagee
herein are cumulative with the rights and remedies of Mortgagee under any other
agreement, at law and in equity, and such rights and remedies may be exercised
concurrently or consecutively. Time is of the essence with respect to every
covenant contained in this mortgage. This mortgage also constitutes a financing
statement, and a carbon or photostatic copy of this mortgage may be filed as a
financing statement in any public office.
UPON CONDITION, HOWEVER, that if Mortgagors shall well and truly pay
and discharge all the Secured Indebtedness (including, without limitation, all
extensions, renewals and increases of the original indebtedness and all future
advances) as the same shall become due and payable and shall in all things do
and perform all acts and covenants by them herein agreed to be done or
performed in strict accordance with the tenor and effect thereof, and if there
is no outstanding commitment or agreement by Mortgagee to make advances, incur
obligations or otherwise give value under any agreement, including, without
limitation, agreements providing for future advances, open-end, revolving or
other lines of credit, or letters of credit, then and in that event only this
conveyance and the security interest herein granted shall be and become null
and void; but should default be made in the payment when due (whether as
originally scheduled or upon acceleration of maturity) of the Secured
Indebtedness or any part thereof or any renewals, extensions or increases
thereof or any interest thereon or should default be made in the repayment of
any sum expended by Mortgagee under the authority of any provision of this
mortgage, or should the interest of Mortgagee in the Mortgaged Property or any
of the personal property described above become endangered by reason of the
enforcement of any lien or encumbrance thereon, or should a petition to condemn
all or any part of the Mortgaged Property be filed by any authority, person or
entity having power of eminent domain, or should any law, either state or
federal, be passed imposing or authorizing the imposition of a specific tax
upon this mortgage or the Secured Indebtedness or permitting or authorizing the
deduction of any such tax from the principal or interest secured by this
mortgage or by virtue of which any tax or assessment upon the Mortgaged
Property shall be charged against the owner of this mortgage, or should at any
time any of the covenants contained in this mortgage or in any note or other
evidence of Secured Indebtedness be declared invalid or unenforceable by any
court of competent jurisdiction, or should Mortgagors fail to do and perform
any other act or thing herein required or agreed to be done, then in any of
said events the whole of the Secured Indebtedness, or any portion or part
thereof which may at said date not have been paid, with interest thereon, shall
at once become due and payable and this mortgage subject to foreclosure at the
option of Mortgagee, notice of the exercise of such option being hereby
expressly waived by
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Mortgagors, and Mortgagee shall have the right to enter upon and take
possession of the Mortgaged Property and after or without taking such
possession to sell the same (or such part or parts thereof as Mortgagee may
from time to time elect to sell) at the front or main door to the courthouse of
the County (or the division thereof) where said property, or any substantial
and material part of said property, is located, at public outcry for cash,
after first giving notice of the description of the property to be sold and the
time, place and terms of such sale by publication once a week for three
consecutive weeks prior to said sale in some newspaper published in the county
or counties in which the property to be sold is located (or if no newspaper is
published in any such county, then in a newspaper published in an adjoining
county); and upon the payment of the purchase price, Mortgagee or the
auctioneer at said sale is authorized to execute to the purchaser for and in
the name of Mortgagors a good and sufficient deed to the property sold.
Mortgagee shall apply the proceeds of any sale or sales under this mortgage as
follows: First, to the expenses of advertising, selling, preparing the property
for sale, and conveying, including reasonable attorneys' fees (including
attorneys' fees incurred by Mortgagee in connection with any proceeding seeking
to enjoin the foreclosure of this mortgage or otherwise challenging the right
of Mortgagee to foreclose this mortgage or sell any of the Mortgaged Property
under this mortgage and attorneys' fees incurred in connection with any
appeal); second, to the payment of any amounts that may have been expended or
that may then be necessary to expend in paying insurance, taxes, assessments,
and other liens and mortgages, and in making repairs, with interest thereon;
third, to the payment of the Secured Indebtedness and interest thereon in such
order as Mortgagee may elect, whether such debts shall or shall not have fully
matured at the date of said sale; and fourth, the balance, if any, to be paid
over to Mortgagors or to whomsoever then appears of record to be the owner of
Mortgagors' interest in said property. Mortgagee may bid and become the
purchaser of the Mortgaged Property at any sale hereunder. Mortgagors hereby
waive any requirement that the Mortgaged Property be sold in separate tracts
and agree that Mortgagee may, at its election, sell said property en masse
regardless of the number of parcels hereby conveyed. The power of sale granted
herein is a continuing power and shall not be fully exercised until all of the
Mortgaged Property not previously sold shall have been sold or all of the
indebtedness and other obligations secured hereby have been satisfied in full.
And upon the occurrence of any such event described above, with respect to all
of the Mortgaged Property which is personal property, Mortgagee shall have the
rights and remedies of a secured party after default by its debtor under the
Alabama Uniform Commercial Code, and shall have, without limitation, the right
to take possession of any of the property herein transferred which is personal
property and, with our without taking possession thereof, to sell the same at
one or more public or private sales, or to proceed as to both the real property
and personal property in accordance with Mortgagee's rights and remedies in
respect of the real property, at the election of Mortgagee. At Mortgagee's
request, Mortgagors agree to assemble such property and to make the same
available to Mortgagee at such place as Mortgagee shall reasonably designate.
Mortgagors hereby waive, to the extent permitted by law, any requirement of a
judicial hearing and notice of the time and place of any public sale or of the
time after which any private sale or other intended disposition of said
property, or of any part thereof, will be held and agree that any required
notice which cannot be waived shall be sufficient if delivered to Mortgagors or
mailed to Mortgagors at the address set forth above, or such other address as
Mortgagors shall have furnished to Mortgagee in writing for that purpose, not
less than ten days before the date of such sale or other intended disposition
of said property.
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IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed (and its seal to be affixed hereto) by its officer(s) thereunto duly
authorized, as of the day and year first above written.
XXXXXX INDUSTRIES, INC.
By: /s/ XXXXX X. XXXXXX
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Its: Vice President - CFO
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STATE OF ALABAMA )
: CORPORATE ACKNOWLEDGMENT
COUNTY OF LAUDERDALE )
I, the undersigned, a Notary Public in and for said County and State,
hereby certify that Xxxxx X. Xxxxxx, whose name as Vice President - CFO of
Xxxxxx Industries, Inc., a Delaware corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of said instrument, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this 5th day of April, 2002.
/s/ XXXXX X. XXXXX
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Notary Public
[NOTARIAL SEAL] My commission expires: 08-20-04
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11
EXHIBIT A
Fee Property
Parcels II, V and VII (6 pages)
12
EXHIBIT B
Leasehold Property
Parcels I and VI (3 pages)
13
