OPEN-ENDED MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND LEASES AND FIXTURE FILING (ILLINOIS) by and from AMERENENERGY RESOURCES GENERATING COMPANY, “Mortgagor” to THE BANK OF NEW YORK TRUST COMPANY, N.A., in its capacity as Agent, “Agent”...
Exhibit
10.4
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This
space reserved for Recorder’s use
only.
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OPEN-ENDED
MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND
LEASES AND FIXTURE FILING (ILLINOIS)
by
and from
AMERENENERGY
RESOURCES GENERATING COMPANY, “Mortgagor”
to
THE
BANK OF NEW YORK TRUST COMPANY, N.A., in
its capacity as Agent,
“Agent”
Dated
as of July 14, 2006
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Location:
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0000
X. Xxxxx Xxxx
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Xxxxxxxxxxxx:
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Xxxxxxxxxxx
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Xxxxxx:
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Peoria
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State:
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P.I.N.
Nos.:
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20-14-200-001,
00-00-000-000,
20-14-200-003
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THE
SECURED PARTY (MORTGAGEE) DESIRES THIS FIXTURE FILING
TO
BE INDEXED AGAINST THE RECORD OWNER OF THE REAL ESTATE
DESCRIBED
HEREIN.
PREPARED
BY, RECORDING REQUESTED BY,
AND
WHEN RECORDED MAIL TO:
AMERENENERGY
RESOURCES GENERATING COMPANY
0000
Xxxxxxxx Xxxxxx
Xx.
Xxxxx, Xxxxxxxx 00000
Attention:
Xxxxx X. Xxxxxxxxx
OPEN-ENDED
MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND
LEASES AND FIXTURE FILING
THIS
OPEN-ENDED MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND LEASES AND
FIXTURE FILING (ILLINOIS)
(this
“Mortgage”)
is
dated as of July 14, 2006, by and from AMERENENERGY RESOURCES GENERATING
COMPANY, an Illinois corporation (“Mortgagor”),
whose
address is 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, to THE BANK OF
NEW
YORK TRUST COMPANY, N.A., as collateral agent (in such capacity, “Agent”)
for the
Secured Parties as defined in the Collateral Agency Agreement (as defined
below), having an address at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xx. Xxxxx,
Xxxxxxxx 00000 (Agent, together with its successors and assigns, “Mortgagee”).
WHEREAS,
Mortgagor, Agent and other Secured Parties have entered into that certain
Collateral Agency Agreement dated as of July 14, 2006 (as amended, amended
and
restated, supplemented or otherwise modified from time to time, the
“Collateral
Agency Agreement”);
ARTICLE
1
Section
1.1 Definitions.
All
capitalized terms used herein without definition shall have the respective
meanings ascribed to them in the Collateral Agency Agreement. As used herein,
the following terms shall have the following meanings:
(a) “Event
of Default”:
(1) The
occurrence of an Event of Default under and as defined in the Collateral Agency
Agreement; or (2) the default by Mortgagor in the observance or performance
of
any covenant, condition or agreement expressly set forth in this Mortgage and
the continuance of such default unremedied for a period of thirty (30) days
after written notice thereof shall have been given to Mortgagor by
Mortgagee.
(b) “Excluded
Property”:
Any and
all property described in clauses 5 and 7 of the definition of “Mortgaged
Property” which is not assignable without the prior consent, approval or other
action
by
a third party, is otherwise subject to a restriction or prohibition on
assignment or is subject to termination upon assignment.
(c) “Mortgaged
Property”:
All of
Mortgagor’s right, title and interest in and to (1) the fee interest in the real
property described in Exhibit
A
attached
hereto and incorporated herein by this reference, together with any greater
estate therein as hereafter may be acquired by Mortgagor (the “Land”),
(2)
all improvements now owned or hereafter acquired by Mortgagor, now or at any
time situated, placed or constructed upon the Land (the “Improvements”;
the
Land and Improvements are collectively referred to as the “Premises”),
(3)
all fixtures of every kind and type, including without limitation, materials,
supplies, equipment, apparatus and other similar items now owned or hereafter
acquired by Mortgagor and attached to or installed on any of the Improvements
or
the Land, and water, gas, electrical, telephone, storm and sanitary sewer
facilities and all other utilities whether or not situated in easements (the
“Fixtures”),
(4)
all equipment (as defined in the UCC) constituting items of personal property
and used in connection with the Mortgagor’s operations at the Premises (the
“Personalty”),
(5)
all leases, licenses, concessions, occupancy agreements or other agreements
(written or oral, now or at any time in effect) which grant to any person a
possessory interest in, or the right to use, all or any part of the Mortgaged
Property, together with all related security and other deposits, excluding,
however, any thereof constituting Excluded Property (the “Leases”),
(6)
all of the rents, revenues, royalties, income, proceeds, profits and other
benefits paid or payable by parties to the Leases for using, leasing, licensing
possessing, operating from, residing in, selling or otherwise enjoying the
Mortgaged Property (the “Rents”),
(7)
all air rights, mineral rights, water rights, oil and gas rights, development
rights, if any, together with all rights, privileges, tenements, hereditaments,
rights-of-way, easements, appendages and appurtenances appertaining to the
foregoing, excluding, however, any thereof constituting Excluded Property,
(8)
all property tax refunds payable with respect to the Mortgaged Property (the
“Tax
Refunds”),
(9)
all accessions, replacements, additions, renewals and substitutions for any
of
the foregoing and all proceeds thereof (the “Proceeds”),
(10)
all insurance policies, unearned premiums therefor and proceeds from such
policies covering any of the above property now or hereafter acquired by
Mortgagor (the “Insurance”),
(11)
all awards, damages, remunerations, reimbursements, settlements or compensation
heretofore made or hereafter to be made by any governmental authority pertaining
to any condemnation or other taking (or any purchase in lieu thereof) of all
or
any portion of the Land, Improvements, Fixtures or Personalty (the “Condemnation
Awards”),
and
(12) to the extent assignable, all consents, licenses, building permits,
certificates of occupancy and other governmental approvals relating to the
Premises and Improvements, all construction, engineering, consulting,
architectural and other similar contracts concerning the design and construction
of the Premises and Improvements, all drawings, plans, specifications, and
similar or related items relating to the Premises and Improvements, and all
payment and performance bonds or warranties or guarantees relating to the
foregoing (the “Permits,
Plans and Warranties”).
As
used in this Mortgage, the term “Mortgaged Property” shall mean all or, where
the context permits or requires, any portion of the above or any interest
therein.
(d) “Permitted
Liens”:
The
following Liens, if any, (1) Liens securing the Obligations of Mortgagor
hereunder and in the Collateral Agency Agreement; (2) Liens for taxes,
assessments or governmental charges or levies on the Premises if the same shall
not at the time be delinquent or thereafter can be paid without penalty, or
are
being contested in good faith and by appropriate proceedings and for which
adequate reserves in accordance with generally accepted accounting principles
shall have been set aside on its books; (3) Liens imposed by law, such as
landlords’, wage earners’, carriers’, warehousemen’s and mechanics liens and
other similar liens arising in the ordinary course of business which secure
payment of obligations not more than sixty (60) days past due or which are
being
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with generally accepted accounting principles shall
have
been set aside on its books; (4) easements, reservations, rights-of-way,
restrictions, survey exceptions and other similar encumbrances as to real
property which customarily exist on properties of corporations engaged in
similar activities and
2
similarly
situated and which do not materially interfere with the conduct of the business
of Mortgagor conducted at the Premises; (5) Liens arising out of judgments
or
awards not exceeding $25,000,000 in aggregate for Mortgagor and its subsidiaries
with respect to which appeals are being diligently pursued in good faith by
appropriate proceedings, and, pending the determination of such appeals, such
judgments or awards having been effectively stayed; (6) Liens approved by
Mortgagee in writing; (7) any zoning or similar law or right reserved to or
vested in any governmental office or agency to control or regulate the use
of
any property; (8) Liens securing obligations (other than obligations
representing indebtedness for borrowed money) under operating reciprocal
easements or similar arrangements entered into in the ordinary course of
business; (9) undetermined Liens and charges incidental to construction;
(10) Liens on any assets securing indebtedness (including capital leases)
incurred or assumed for the purpose of financing or refinancing all or any
part
of the cost of acquiring or constructing such asset, provided that such Lien
attaches to such asset concurrently with or within eighteen (18) months after
the acquisition or completion of construction thereof; (11) Liens existing
on any assets of any Person at the time such Person is merged or consolidated
with or into the Mortgagor and not created in contemplation of such event;
(12) Liens existing on any assets prior to the acquisition thereof and not
created in contemplation thereof, provided that such Liens do not encumber
any
other property or assets; and (13) Liens arising out of the refinancing,
extension, renewal or refunding of any indebtedness secured by any Lien
permitted by any of the above clauses, provided that such indebtedness is not
secured by any additional assets and the amount of indebtedness secured by
any
such Lien is not increased.
ARTICLE
2
Section
2.1 Grant.
To
secure the full and timely payment of the Obligations, Mortgagor MORTGAGES,
GRANTS, BARGAINS, ASSIGNS, SELLS, CONVEYS and CONFIRMS, to Mortgagee the
Mortgaged Property, subject, however, only to the matters that are set forth
on
Exhibit
B
attached
hereto (the “Permitted
Encumbrances”)
and to
Permitted Liens, TO HAVE AND TO HOLD the Mortgaged Property to Mortgagee, and
Mortgagor does hereby bind itself, its successors and assigns to WARRANT AND
FOREVER DEFEND the title to the Mortgaged Property unto Mortgagee.
ARTICLE
3
Mortgagor
warrants, represents and covenants to Mortgagee as follows:
Section
3.1 Title
to Mortgaged Property and Lien of this Instrument.
Mortgagor has fee simple title to the Premises and good and marketable title
to
the other Mortgaged Property, in each case free and clear of any liens, claims
or interests, except the Permitted Encumbrances and the Permitted Liens. Subject
to the terms hereof, this Mortgage creates valid, enforceable first priority
liens and security interests against the Mortgaged Property.
Section
3.2 Lien
Status.
Mortgagor shall preserve and protect the lien and security interest status
of
this Mortgage. If any lien or security interest other than a Permitted
Encumbrance or a Permitted Lien is asserted against the Mortgaged Property,
Mortgagor shall promptly, and at its expense, (a) give Mortgagee a detailed
written notice of such lien or security interest (including origin, amount
and
other terms), and (b) pay the underlying claim in full or take such other action
so as to cause it to be released or contest the same in compliance with the
requirements of the Collateral Agency Agreement.
Section
3.3 Inspection.
Mortgagor shall permit Mortgagee and its respective agents, representatives
and
employees, upon reasonable prior notice to Mortgagor, to inspect the
3
Mortgaged
Property, as Mortgagee may reasonably require, provided that such inspections
and studies shall not materially interfere with the use and operation of the
Mortgaged Property.
(a) Insurance.
Mortgagor shall maintain or cause to be maintained, with financially sound
and
reputable insurers, insurance with respect to the Mortgaged Property against
loss or damage of the kinds, and subject to such deductibles and self-insurance,
customarily carried or maintained under similar circumstances by corporations
of
established reputation engaged in similar businesses. Each such policy of
insurance shall name Mortgagee as the loss payee (or, in the case of liability
insurance, an additional insured) thereunder for the ratable benefit of the
Secured Parties, and shall provide for at least thirty (30) days’ prior written
notice of any material modification or cancellation of such policy. In addition
to the foregoing, if any portion of the Mortgaged Property is located in an
area
identified by the Federal Emergency Management Agency as an area having special
flood hazards and in which flood insurance has been made available under the
National Flood Insurance Act of 1968 (or any amendment or successor act
thereto), then Mortgagor shall maintain, or cause to be maintained, with a
financially sound and reputable insurer, flood insurance in an amount sufficient
to comply with all applicable rules and regulations promulgated pursuant to
such
Act.
(b) Insurance
Proceeds.
Mortgagor assigns to Mortgagee all proceeds of any insurance policies insuring
against loss or damage to the Mortgaged Property. Mortgagor shall give Mortgagee
prompt notice of any loss covered by insurance. Mortgagee shall have the
exclusive right to adjust any losses claimed under any such insurance policies
in excess of $10,000,000 (or any amount after the occurrence and during the
continuation of an Event of Default) (a “Material
Award”)
in a
manner reasonably acceptable to Mortgagor. Any Material Award received as
payment for any loss under any insurance policy mentioned above (other than
liability insurance policies) shall be paid over to Mortgagee to be held in
trust for the benefit of Mortgagor and shall be released to Mortgagor on a
percentage completion basis for the repair, replacement or restoration of the
Mortgaged Property, all in accordance with customary construction escrow
procedures. Any amount received from such insurance policies that is not a
Material Award shall be paid to and may be retained by Mortgagor. Any excess
Material Award remaining after such repair, replacement or restoration shall
be
released to the Mortgagor, provided that if an Event of Default shall have
occurred and be continuing, such excess shall be applied as a prepayment of
the
Obligations. Any such repair, replacement or restoration shall be effected
with
reasonable promptness.
(c) Condemnation
Awards.
Mortgagor assigns all Condemnation Awards to Mortgagee and authorizes Mortgagee
to collect and receive such Condemnation Awards and to give proper receipts
and
acquittances therefor. Any amount received as an award for eminent domain that
is not a Material Award shall be paid to and may be retained by Mortgagor.
Any
such amount that is a Material Award shall be held in trust for the benefit
of
Mortgagor and shall be released to Mortgagor on a percentage completion basis
for the repair, replacement or restoration of the Mortgaged Property, all in
accordance with customary construction escrow procedures. Any excess Material
Award remaining after such repair, replacement or restoration shall be released
to the Mortgagor, provided that if an Event of Default shall have occurred
and
be continuing, such excess shall be applied as a prepayment of the
Obligations.
Section
3.5 Use
Violations.
Except
as may be expressly permitted by the terms of the Collateral Agency Agreement
or
this Mortgage, Mortgagor shall not use, maintain, operate or occupy, or allow
the use, maintenance, operation or occupancy of the Mortgaged Property in any
manner which violates in any material respect any applicable laws, or will
invalidate any insurance coverage required to be carried hereunder. Mortgagor
shall not commit or permit any waste of the
4
Mortgaged
Property or any part thereof. Mortgagor shall not abandon the Mortgaged Property
or leave the Mortgaged Property unprotected, unguarded, vacant or deserted,
and
shall not allow any of the Mortgaged Property to be misused, abused or wasted,
or to deteriorate (ordinary wear and tear excepted).
Section
3.6 Maintenance,
Repair and Restoration.
Mortgagor shall keep the Mortgaged Property in good condition, order, repair
and
operating condition (ordinary wear and tear excepted) appropriate for comparable
properties of similar construction, causing all necessary repairs, alterations,
renewals, replacements, additions, betterments and improvements to be made
promptly thereto. Subject to the terms hereof and of the Collateral Agency
Agreement, Mortgagor shall promptly repair, restore or rebuild (or cause the
same to be done) any of the Mortgaged Property which may become damaged or
be
destroyed from any cause whatsoever and pay when due all claims for labor
performed and materials furnished therefore; provided, however, Mortgagor shall
not be required to repair, restore, or rebuild any of the Mortgaged Property
not
then used or useful in connection with the operations of Mortgagor conducted
on
the Mortgaged Property (“Obsolete
Property”).
To
the extent any damage to Obsolete Property was caused by a casualty or
condemnation, any award received in connection therewith that is not a Material
Award may be retained by Mortgagor and any award that is a Material Award shall
be applied as a prepayment of the indebtedness.
Section
3.7 Permitted
Exceptions; Compliance.
With
respect to the Permitted Encumbrances and the Permitted Liens, Mortgagor shall
(a) timely observe and perform all covenants and obligations contained therein
and (b) not take any action or fail to take any action if the taking of such
action or the failure to take such action would cause a default thereunder
(beyond applicable notice and cure periods as set forth therein).
Section
3.8 Taxes.
Mortgagor shall pay all ad valorem real estate taxes levied against the
Mortgaged Property except to the extent Mortgagor is contesting such taxes
in
good faith, by appropriate proceedings, and with respect to which adequate
reserves have been recorded in accordance with generally accepted accounting
principles.
ARTICLE
4
Section
4.1 Remedies.
Upon the
occurrence and during the continuance of an Event of Default, to the extent
permitted by applicable law and the Collateral Agency Agreement, Mortgagee
may,
at Mortgagee’s election, (without additional notice or demand except as required
by law) exercise any or all of the following rights, remedies and
recourses:
(a) Entry
on Mortgaged Property.
Enter
the Mortgaged Property and take exclusive possession thereof and of all books,
records and accounts relating thereto or located thereon. If Mortgagor remains
in possession of the Mortgaged Property following the occurrence and during
the
continuance of an Event of Default and without Mortgagee’s prior written
consent, Mortgagee may invoke any legal remedies to dispossess
Mortgagor.
(b) Operation
of Mortgaged Property.
Hold,
lease, develop, manage, operate or otherwise use the Mortgaged Property upon
such terms and conditions as Mortgagee may deem reasonable under the
circumstances (making such repairs, alterations, additions and improvements
and
taking other actions, from time to time, as Mortgagee deems necessary or
desirable), and apply all Rents and other amounts collected by Mortgagee in
connection therewith in accordance with the provisions of Section
4.7.
5
(c) Foreclosure
and Sale.
Institute proceedings for the complete foreclosure of this Mortgage by judicial
action, in which case the Mortgaged Property may be sold for cash or credit
in
one or more parcels. With respect to any notices required or permitted under
the
UCC, Mortgagor agrees that ten (10) days’ prior written notice shall be deemed
commercially reasonable. At any such sale by virtue of any judicial proceedings
or any other legal right, remedy or recourse, the title to and right of
possession of any such property shall pass to the purchaser thereof, and to
the
fullest extent permitted by law, Mortgagor shall be completely and irrevocably
divested of all of its right, title, interest, claim, equity, equity of
redemption, and demand whatsoever, either at law or in equity, in and to the
property sold and such sale shall be a perpetual bar both at law and in equity
against Mortgagor, and against all other persons claiming or to claim the
property sold or any part thereof, by, through or under Mortgagor. Mortgagee
or
any of the other Secured Parties may be a purchaser at such sale. If Mortgagee
or such other Secured Party is the highest bidder, Mortgagee or such other
Secured Party may credit the portion of the purchase price that would be
distributed to Mortgagee or such other Secured Party against the Obligations
in
lieu of paying cash. In the event this Mortgage is foreclosed by judicial
action, appraisement of the Mortgaged Property is waived.
(d) Receiver.
Make
application to a court of competent jurisdiction for, and obtain from such
court
as a matter of strict right and without notice to Mortgagor or regard to the
adequacy of the Mortgaged Property for the repayment of the Obligations, the
appointment of a receiver of the Mortgaged Property, and Mortgagor irrevocably
consents to such appointment. Any such receiver shall have all the usual powers
and duties of receivers in similar cases, including the full power to rent,
maintain and otherwise operate the Mortgaged Property upon such terms as may
be
approved by the court, and shall apply such Rents in accordance with the
provisions of Section
4.7.
(e) Other.
Exercise all other rights, remedies and recourses granted by this Mortgage
and
the Collateral Agency Agreement or otherwise available at law or in
equity.
Section
4.2 Separate
Sales.
To the
extent permitted by applicable law, the Mortgaged Property may be sold in one
or
more parcels and in such manner and order as Mortgagee in its sole discretion
may elect. The right of sale arising out of any Event of Default shall not
be
exhausted by any one or more sales.
Section
4.3 Remedies
Cumulative, Concurrent and Nonexclusive.
Mortgagee shall have all rights, remedies and recourses granted hereunder and
in
the Collateral Agency Agreement and available at law or equity (including the
UCC), which rights (a) shall be cumulated and concurrent, (b) may be pursued
separately, successively or concurrently against Mortgagor, or against the
Mortgaged Property, or against any one or more of them, at the sole discretion
of Mortgagee, (c) may be exercised as often as occasion therefor shall arise,
and the exercise or failure to exercise any of them shall not be construed
as a
waiver or release thereof or of any other right, remedy or recourse, and (d)
are
intended to be, and shall be, nonexclusive. No action by Mortgagee in the
enforcement of any rights, remedies or recourses hereunder, under the Collateral
Agency Agreement or otherwise at law or equity shall be deemed to cure any
Event
of Default.
Section
4.4 Release
of and Resort to Collateral.
Mortgagee may release, regardless of consideration and without the necessity
for
any notice to or consent by the holder of any subordinate lien on the Mortgaged
Property, any part of the Mortgaged Property without, as to the remainder,
in
any way impairing, affecting, subordinating or releasing the lien or security
interest created in or evidenced hereby or its status as a first and prior
lien
and security interest in and to the Mortgaged Property. For payment of the
Obligations, Mortgagee may resort to any other security in such order and manner
as Mortgagee may elect.
6
Section
4.5 Waiver
of Redemption, Notice and Marshalling of Assets.
To the
extent permitted by applicable law, Mortgagor hereby irrevocably and
unconditionally waives and releases (a) all benefit that might accrue to
Mortgagor by virtue of any present or future statute of limitations or law
or
judicial decision exempting the Mortgaged Property from attachment, levy or
sale
on execution or providing for any stay of execution, exemption from civil
process, redemption or extension of time for payment, (b) all notices of any
Event of Default or of any election by Mortgagee to exercise or the actual
exercise of any right, remedy or recourse provided for hereunder and (c) any
right to a marshalling of assets or a sale in inverse order of
alienation.
Section
4.6 Discontinuance
of Proceedings.
If
Mortgagee shall have proceeded to invoke any right, remedy or recourse permitted
hereunder and shall thereafter elect to discontinue or abandon it for any
reason, Mortgagee, shall have the unqualified right to do so and, in such an
event, Mortgagor and Mortgagee shall be restored to their former positions
with
respect to the Mortgaged Property and otherwise, and the rights, remedies,
recourses and powers of Mortgagee shall continue as if the right, remedy or
recourse had never been invoked, but no such discontinuance or abandonment
shall
waive any Event of Default which may then exist or the right of Mortgagee
thereafter to exercise any right, remedy or recourse hereunder or under the
Collateral Agency Agreement for such Event of Default.
Section
4.7 Application
of Proceeds.
The
proceeds of any sale of the Mortgaged Property shall be applied by Mortgagee
(or
the receiver, if one is appointed) in accordance with the terms of the
Collateral Agency Agreement.
Section
4.8 Occupancy
After Foreclosure.
Any sale
of the Mortgaged Property or any part thereof in accordance with Section
4.1(c)
will
divest all right, title and interest of Mortgagor in and to the property sold.
Subject to applicable law, any purchaser at a foreclosure sale will receive
immediate possession of the property purchased. If Mortgagor retains possession
of such property or any part thereof subsequent to such sale, Mortgagor will
be
considered a tenant at sufferance of the purchaser, and will, if Mortgagor
remains in possession after demand to remove, be subject to eviction and
removal, forcible or otherwise, with or without process of law.
(a) Upon
the
occurrence and during the continuance of any Event of Default, Mortgagee shall
have the right, but not under any circumstances the obligation, to cure such
Event of Default in the name and on behalf of Mortgagor. All sums advanced
and
expenses incurred at any time by Mortgagee under this Section
4.9,
or
otherwise under this Mortgage, the Collateral Agency Agreement or applicable
law, shall bear interest from the date that such sum is advanced or expense
incurred, to and including the date of reimbursement, computed at the highest
rate at which interest is then computed on any portion of the Obligations,
and
all such sums, together with interest thereon, shall be secured by this
Mortgage. Mortgagee is hereby empowered to enter and to authorize others to
enter upon the Premises or the Improvements or any part thereof for the purpose
of curing such Event of Default without having any obligation to so cure and
without thereby becoming liable to Mortgagor, to any person in possession
holding under Mortgagor or to any other person.
(b) Mortgagor
shall pay all expenses (including reasonable attorneys’ fees and expenses) of or
incidental to the perfection and enforcement of this Mortgage, or the
enforcement, compromise or settlement of the Obligations or any claim under
this
Mortgage, and for the curing thereof, or for defending or asserting the rights
and claims of Mortgagee in respect thereof, by litigation or
otherwise.
7
Section
4.10 No
Mortgagee in Possession.
Neither
the enforcement of any of the remedies under this Article
4,
the
assignment of the Rents and Leases under Article
5,
the
security interests under Article
6,
nor any
other remedies afforded to Mortgagee, at law or in equity shall cause Mortgagee
or any other Secured Party to be deemed or construed to be a mortgagee in
possession of the Mortgaged Property until the taking of actual possession
by
Mortgagee, to obligate Mortgagee or any other Secured Party to lease the
Mortgaged Property or attempt to do so, or to take any action, incur any
expense, or perform or discharge any obligation, duty or liability whatsoever
under any of the Leases or otherwise.
Section
4.11 Limitation
by Law.
All
rights, remedies and powers provided in this Mortgage may be exercised only
to
the extent that the exercise thereof does not violate any applicable provision
of law, and all the provisions of this Mortgage are intended to be subject
to
all applicable mandatory provisions of law that may be controlling and to be
limited to the extent necessary so that they shall not render this Mortgage
invalid, unenforceable, in whole or in part, or not entitled to be recorded,
registered or filed under the provisions of any applicable law.
Section
4.12 Filing
Proofs of Claim.
Filing
Proofs of Claim. In case of any receivership, insolvency, bankruptcy,
reorganization, arrangement, adjustment, composition or other proceedings
affecting Mortgagor, Mortgagee shall, to the extent permitted by law, be
entitled to file such proofs of claim and other documents as may be necessary
or
advisable in order to have the claims of Mortgagee allowed in such proceedings
for the Obligations secured by this Mortgage at the date of the institution
of
such proceedings and for any interest accrued, late charges and additional
interest or other amounts due or that may become due and payable hereunder
after
such date.
ARTICLE
5
Section
5.1 Assignment.
In
furtherance of and in addition to the assignment made by Mortgagor in
Section
2.1
of this
Mortgage, Mortgagor hereby absolutely and unconditionally assigns, sells,
transfers and conveys to Mortgagee all of its right, title and interest in
and
to all Leases, whether now existing or hereafter entered into, and all of its
right, title and interest in and to all Rents. This assignment is an absolute
assignment and not an assignment for additional security only. So long as no
Event of Default shall have occurred and be continuing, Mortgagor shall have
a
revocable license from Mortgagee to exercise all rights extended to the landlord
under the Leases, including the right to receive and collect all Rents and
to
hold the Rents in trust for use in the payment and performance of the
Obligations and to otherwise use the same. The foregoing license is granted
subject to the conditional limitation that no Event of Default shall have
occurred and be continuing. Upon the occurrence and during the continuance
of an
Event of Default, whether or not legal proceedings have commenced, and without
regard to waste, adequacy of security for the Obligations or solvency of
Mortgagor, the license herein granted shall automatically expire and terminate,
without notice to Mortgagor by Mortgagee (any such notice being hereby expressly
waived by Mortgagor to the extent permitted by applicable law). Mortgagor hereby
irrevocably authorizes and directs each tenant, if any, and each successor,
if
any, to the interest of any tenant under any Lease, respectively, to rely upon
any notice of a claimed Event of Default sent by Mortgagee to any such tenant
or
any of such tenant's successors in interest, and thereafter to pay Rents to
Mortgagee without any obligation or right to inquire as to whether an Event
of
Default actually exists and even if some notice to the contrary is received
from
the Mortgagor, who shall have no right or claim against any such tenant or
successor in interest for any such Rents so paid to Mortgagee. Each tenant
or
any of such tenant's successors in interest from whom Mortgagee or any officer,
agent, attorney or employee of Mortgagee shall have collected any Rents, shall
be authorized to pay Rents to Mortgagor only after such tenant or any of their
successors in interest shall have received written notice from Mortgagee that
the Event of Default is no
8
longer
continuing, unless and until a further notice of an Event of Default is given
by
Mortgagee to such tenant or any of its successors in interest.
Section
5.2 Perfection
Upon Recordation.
Mortgagor acknowledges that upon recordation of this Mortgage Mortgagee shall
have, to the extent permitted under applicable law, a valid and fully perfected,
first priority, present assignment of the Rents arising out of the Leases and
all security for such Leases. Mortgagor acknowledges and agrees that upon
recordation of this Mortgage Mortgagee’s interest in the Rents shall be deemed
to be fully perfected, “xxxxxx” and enforced as to Mortgagor and all third
parties following recovery of possession of the Mortgaged Property by Mortgagee.
For purposes of this Section
5.2,
“possession” shall mean any one of the following to the extent permitted by
applicable law: (a) actual possession of the Mortgaged Property or (b) taking
affirmative actions to gain possession of the Mortgaged Property that would
constitute constructive possession of the Mortgaged Property such as court
authorization to collect Rents or appointment of a receiver. To the extent
permitted by applicable law, Mortgagee shall have the right to collect Rents
without taking possession of the Mortgaged Property.
Section
5.3 Bankruptcy
Provisions.
Without
limitation of the absolute nature of the assignment of the Rents hereunder,
Mortgagor and Mortgagee agree that (a) this Mortgage shall constitute a
“security agreement” for purposes of Section 552(b) of Title 11 of the United
States Code (the “Bankruptcy
Code”),
(b)
the security interest created by this Mortgage extends to property of Mortgagor
acquired before the commencement of a case in bankruptcy and to all amounts
paid
as Rents and (c) such security interest shall extend to all Rents acquired
by
the estate after the commencement of any case in bankruptcy.
Section
5.4 No
Merger of Estates.
So long
as part of the Obligations secured hereby remain unpaid and undischarged, the
fee and leasehold estates to the Mortgaged Property shall not merge, but shall
remain separate and distinct, notwithstanding the union of such estates either
in Mortgagor, Mortgagee, any tenant or any third party by purchase or
otherwise.
ARTICLE
6
Section
6.1 Security
Interest.
This
Mortgage constitutes a “security agreement” on personal property within the
meaning of the UCC and other applicable law and with respect to the Personalty,
Fixtures, Leases, Rents, Tax Refunds, Proceeds, Insurance and Condemnation
Awards. To this end, Mortgagor grants to Mortgagee a security interest in all
of
its right, title and interest in the Personalty, Fixtures, Leases, Rents, Tax
Refunds, Proceeds, Insurance, Condemnation Awards and all other Mortgaged
Property which is personal property to secure the payment of the Obligations,
and agrees that Mortgagee shall have all the rights and remedies of a secured
party under the UCC with respect to such property. Any notice of sale,
disposition or other intended action by Mortgagee with respect to the
Personalty, Fixtures, Leases, Rents, Tax Refunds, Proceeds, Insurance and
Condemnation Awards sent to Mortgagor at least ten (10) days prior to any action
under the UCC shall constitute reasonable notice to Mortgagor.
Section
6.2 Financing
Statements.
Mortgagor shall prepare and deliver to Mortgagee such financing statements,
and
shall execute and deliver to Mortgagee such other documents, instruments and
further assurances, in each case in form and substance satisfactory to
Mortgagee, as necessary or as Mortgagee may, from time to time, reasonably
consider necessary to create, perfect and preserve Mortgagee’s security interest
hereunder. Mortgagor hereby irrevocably authorizes Mortgagee to cause financing
statements (and amendments thereto and continuations thereof) and any such
documents, instruments and assurances to be recorded and filed, at such times
9
and
places as may be required or permitted by law to so create, perfect and preserve
such security interest. Mortgagor represents and warrants to Mortgagee that
Mortgagor’s jurisdiction of organization is the State of Illinois. After the
date of this Mortgage, Mortgagor shall not change its name, type of
organization, organizational identification number (if any), jurisdiction of
organization or location (within the meaning of the UCC) without giving at
least
thirty (30) days’ prior written notice to Mortgagee.
Section
6.3 Fixture
Filing.
This
Mortgage shall also constitute a “fixture filing” for the purposes of the UCC
against all of the Mortgaged Property which is or is to become fixtures. The
information provided in this Section
6.3
is
provided so that this Mortgage shall comply with the requirements of the UCC
for
a mortgage instrument to be filed as a financing statement. Mortgagor is the
“Debtor” and its name and mailing address are set forth in the preamble of this
Mortgage immediately preceding Article
1.
Mortgagee is the “Secured Party” and its name and mailing address from which
information concerning the security interest granted herein may be obtained
are
also set forth in the preamble of this Mortgage immediately preceding
Article
1.
A
statement describing the portion of the Mortgaged Property comprising the
fixtures hereby secured is set forth in Section
1.1(b)
of this
Mortgage. Mortgagor represents and warrants to Mortgagee that Mortgagor is
the
record owner of the Mortgaged Property (subject to Permitted Liens and Permitted
Encumbrances), the employer identification number of the Debtor (Mortgagor)
is
00-0000000 and the organizational identification number of the Debtor
(Mortgagor) is 61910417.
ARTICLE
7
Section
7.1 Notices.
Any
notice required or permitted to be given under this Mortgage shall be given
in
accordance with the Collateral Agency Agreement.
Section
7.2 Covenants
Running with the Land.
All
Obligations contained in this Mortgage are intended by Mortgagor and Mortgagee
to be, and shall be construed as, covenants running with the Mortgaged Property.
As used herein, “Mortgagor” shall refer to the party named in the first
paragraph of this Mortgage and to any subsequent owner of all or any portion
of
the Mortgaged Property. All persons who may have or acquire an interest in
the
Mortgaged Property shall be deemed to have notice of, and be bound by, the
terms
of this Mortgage and the Collateral Agency Agreement; provided,
however,
that no
such party shall be entitled to any rights thereunder without the prior written
consent of Mortgagee.
Section
7.3 Attorney-in-Fact.
Mortgagor hereby irrevocably appoints Mortgagee as its attorney-in-fact, which
agency is coupled with an interest and with full power of substitution, with
full authority in the place and stead of Mortgagor and in the name of Mortgagor
or otherwise (a) to execute and/or record any notices of completion, cessation
of labor or any other notices that Mortgagee deems appropriate to protect
Mortgagee’s interest, if Mortgagor shall fail to do so within ten (10) days
after written request by Mortgagee, (b) upon the issuance of a deed pursuant
to
the foreclosure of this Mortgage or the delivery of a deed in lieu of
foreclosure, to execute all instruments of assignment, conveyance or further
assurance with respect to the Leases, Rents, Tax Refunds, Proceeds, Insurance
and Condemnation Awards in favor of the grantee of any such deed and as may
be
necessary or desirable for such purpose, (c) to prepare and file or record
financing statements and continuation statements, and to prepare, execute and
file or record applications for registration and like papers necessary to
create, perfect or preserve Mortgagee’s security interests and rights in or to
any of the Mortgaged Property, and (d) after the occurrence and during the
continuance of any Event of Default, to perform any obligation of Mortgagor
hereunder; provided,
however,
that (1)
Mortgagee shall not under any circumstances be obligated to perform any
obligation of Mortgagor; (2) any sums advanced by
10
Mortgagee
in such performance shall be added to and included in the Obligations and shall
bear interest at the highest rate at which interest is then computed on any
portion of the Obligations; (3) Mortgagee as such attorney-in-fact shall only
be
accountable for such funds as are actually received by Mortgagee; and (4)
Mortgagee shall not be liable to Mortgagor or any other person or entity for
any
failure to take any action which it is empowered to take under this Section
7.3.
Section
7.4 Successors
and Assigns.
This
Mortgage shall be binding upon and inure to the benefit of Mortgagee, the other
Secured Parties and Mortgagor and their respective successors and assigns.
Mortgagor shall not, without the prior written consent of Mortgagee, assign
any
rights, duties or obligations hereunder.
Section
7.5 No
Waiver.
Any
failure by Mortgagee to insist upon strict performance of any of the terms,
provisions or conditions of this Mortgage shall not be deemed to be a waiver
of
same, and Mortgagee shall have the right at any time to insist upon strict
performance of all of such terms, provisions and conditions.
Section
7.6 Collateral
Agency Agreement.
If any
conflict or inconsistency exists between this Mortgage and the Collateral Agency
Agreement, the Collateral Agency Agreement shall govern.
Section
7.7 Release
or Reconveyance.
Upon
payment in full of the Obligations or upon a sale or other disposition of the
Mortgaged Property permitted by the Collateral Agency Agreement, Mortgagee,
at
Mortgagor’s request and expense, shall release the liens and security interests
created by this Mortgage or assign this Mortgage to a third party designated
by
Mortgagor.
Section
7.8 Waiver
of Stay, Moratorium and Similar Rights.
Mortgagor agrees, to the extent that it may lawfully do so, that it will not
at
any time insist upon or plead or in any way take advantage of any stay,
marshalling of assets, extension, redemption or moratorium law now or hereafter
in force and effect so as to prevent or hinder the enforcement of the provisions
of this Mortgage or the Obligations secured hereby, or any agreement between
Mortgagor and Mortgagee or any rights or remedies of Mortgagee or any other
Secured Party.
Section
7.9 Applicable
Law.
The
provisions of this Mortgage shall be governed by the laws of the State of
Illinois.
Section
7.10 Headings.
The
Article, Section and Subsection titles hereof are inserted for convenience
of
reference only and shall in no way alter, modify or define, or be used in
construing, the text of such Articles, Sections or Subsections.
Section
7.11 Severability.
If any
provision of this Mortgage shall be held by any court of competent jurisdiction
to be unlawful, void or unenforceable for any reason, such provision shall
be
deemed severable from and shall in no way effect the enforceability and validity
of the remaining provisions of this Mortgage.
Section
7.12 Entire
Agreement.
This
Mortgage and the Collateral Agency Agreement embody the entire agreement and
understanding between Mortgagor and Mortgagee relating to the subject matter
hereof and thereof and supersede all prior agreements and understandings between
such parties relating to the subject matter hereof and thereof. Accordingly,
the
Collateral Agency Agreement and this Mortgage may not be contradicted by
evidence of prior, contemporaneous or subsequent oral agreements of the parties.
There are no unwritten oral agreements between the parties.
11
Section
7.13 Mortgagee
as Agent; Successor Agents.
(a) Agent
has
been appointed to act as Mortgagee hereunder by the other Secured Parties.
Agent
shall have the right hereunder to make demands, to give notices, to exercise
or
refrain from exercising any rights, and to take or refrain from taking any
action (including, without limitation, the release or substitution of the
Mortgaged Property) in accordance with the terms of the Collateral Agency
Agreement and this Mortgage. Mortgagor and all other persons shall be entitled
to rely on releases, waivers, consents, approvals, notifications and other
acts
of Agent, without inquiry into the existence of required consents or approvals
of the Secured Parties therefor.
(b) Mortgagee
shall at all times be the same person that is Agent under the Collateral Agency
Agreement. Written notice of resignation by Agent pursuant to the Collateral
Agency Agreement shall also constitute notice of resignation as Agent under
this
Mortgage. Removal of Agent pursuant to any provision of the Collateral Agency
Agreement shall also constitute removal as Agent under this Mortgage.
Appointment of a successor Agent pursuant to the Collateral Agency Agreement
shall also constitute appointment of a successor Agent under this Mortgage.
Upon
the acceptance of any appointment as Agent by a successor Agent under the
Collateral Agency Agreement, that successor Agent shall thereupon succeed to
and
become vested with all the rights, powers, privileges and duties of the retiring
or removed Agent as the Mortgagee under this Mortgage, and the retiring or
removed Agent shall promptly (i) assign and transfer to such successor Agent
all
of its right, title and interest in and to this Mortgage and the Mortgaged
Property, and (ii) execute and deliver to such successor Agent such assignments
and amendments and take such other actions, as may be necessary or appropriate
in connection with the assignment to such successor Agent of the liens and
security interests created hereunder, whereupon such retiring or removed Agent
shall be discharged from its duties and obligations under this Mortgage. After
any retiring or removed Agent’s resignation or removal hereunder as Agent, the
provisions of this Mortgage and the Collateral Agency Agreement shall inure
to
its benefit as to any actions taken or omitted to be taken by it under this
Mortgage while it was Agent hereunder.
Section
7.14 Releases.
At the
request of Mortgagor in writing, Agent shall release from this Mortgage portions
of the Mortgaged Property as permitted by the Collateral Agency Agreement in
each such instance.
Section
7.15 Waiver
of Trial by Jury.
To the
fullest extent permitted by applicable law, Mortgagor and Mortgagee each hereby
irrevocably and unconditionally waive trial by jury in any action, claim, suit
or proceeding relating to this Mortgage and for any counterclaim brought
therein.
ARTICLE
8
Section
8.1 Inconsistencies.
In
the
event of any inconsistencies between the terms and conditions of this
Article
8
and the
other provisions of this Mortgage, the terms and conditions of this Article
8
shall
control and be binding.
Section
8.2 Maximum
Principal Sum.
The
Obligations are to be secured by other mortgages and deeds of trust on other
real estate in other counties and other states. Each and all of such mortgages
and deeds of trust are intended to and shall constitute security for the entire
Obligations represented by the Obligations without allocation. Notwithstanding
anything herein to the contrary, it is agreed that the maximum amount of
Obligations secured by this Mortgage, including all advancements, at any one
time shall not exceed $500,000,000.
12
Section
8.3 In
Rem Proceedings.
Supplementing
Section
4.1
hereof,
mortgage foreclosures and other In
Rem
proceedings against Mortgagor may be brought in Peoria County, Illinois or
any
federal court of competent jurisdiction in Illinois.
Section
8.4 Future
Advances; Revolving Credit.
The
Secured Parties are obligated under the terms of the Credit Agreement or the
Additional Debt Documents to make advances as provided therein, and Mortgagor
acknowledges and intends that all such advances, including future advances
whenever hereafter made, shall be a lien from the time this Mortgage is
recorded, as provided in Section 15-1302(b)(1) of the Act (as hereinafter
defined). That portion of the Obligations which comprises the principal amount
then outstanding of the loans under the Credit Agreement constitutes revolving
credit indebtedness secured by a mortgage on real property, pursuant to the
terms and conditions of 205 ILCS 5/5d. Mortgagor covenants and agrees that
this
Mortgage shall secure the payment of all loans and advances made pursuant to
the
terms and provisions of the Credit Agreement and the Additional Debt Documents,
whether such loans and advances are made as of the date hereof or at any time
in
the future, and whether such future advances are obligatory or are to be made
at
the option of Mortgagee or otherwise (but not advances or loans made more than
20 years after the date hereof), to the same extent as if such future advances
were made on the date of the execution of this Mortgage and although there
may
be no advances made at the time of the execution of this Mortgage and although
there may be no other indebtedness outstanding at the time any advance is made.
The lien of this Mortgage shall be valid as to all Obligations, including future
advances, from the time of its filing of record in the office of the Recorder
of
Deeds of the County in which the Mortgaged Property is located. The total amount
of the Obligations may increase or decrease from time to time, but the total
unpaid principal balance of the Obligations (including disbursements which
Mortgagee may make under this Mortgage or any other document or instrument
evidencing or securing the Obligations) at any time outstanding shall not exceed
the amount referred to in Section
8.2
of this
Mortgage. This Mortgage shall be valid and shall have priority over all
subsequent liens and encumbrances, including statutory liens except taxes and
assessments levied on the Mortgaged Property, to the extent of the maximum
amount secured hereby.
Section
8.5 Illinois
Mortgage Foreclosure Law.
It is
the intention of Mortgagor and Mortgagee that the enforcement of the terms
and
provisions of this Mortgage shall be accomplished in accordance with the
Illinois Mortgage Foreclosure Law (the “Act”),
735
ILCS 15-1101, et
seq.,
and
with respect to such Act Mortgagor agrees and covenants that:
(a) Mortgagor
and Mortgagee shall have the benefit of all of the provisions of the Act,
including all amendments thereto which may become effective from time to time
after the date hereof. In the event any provision of the Act which is
specifically referred to herein may be repealed, Mortgagee shall have the
benefit of such provision as most recently existing prior to such repeal, as
though the same were incorporated herein by express reference;
(b) Wherever
provision is made in this Mortgage for insurance policies to bear mortgage
clauses or other loss payable clauses or endorsements in favor of Mortgagee,
or
to confer authority upon Mortgagee to settle or participate in the settlement
of
losses under policies of insurance or to hold and disburse or otherwise control
use of insurance proceeds, from and after the entry of judgment of foreclosure,
all such rights and powers of Mortgagee shall continue in Mortgagee as judgment
creditor or mortgagee until confirmation of sale;
(c) All
advances, disbursements and expenditures made or incurred by Mortgagee before
and during a foreclosure, and before and after judgment of foreclosure, and
at
any time prior to sale, and, where applicable, after sale, and during the
pendency of any related proceedings, for the following purposes, in addition
to
those otherwise authorized by this Mortgage or the Collateral
Agency
13
Agreement
or by the Act (collectively “Protective
Advances”),
shall
have the benefit of all applicable provisions of the Act.
All
Protective Advances shall be so much additional indebtedness secured by this
Mortgage, and shall become immediately due and payable without notice and with
interest thereon from the date of the advance until paid at the rate of interest
payable under the terms of the Collateral Agency Agreement.
This
Mortgage shall be a lien for all Protective Advances as to subsequent purchasers
and judgment creditors from the time this Mortgage is recorded pursuant to
Subsection (b)(5) of Section 15-1302 of the Act.
(d) In
addition to any provision of this Mortgage authorizing the Mortgagee to take
or
be placed in possession of the Mortgaged Property, or for the appointment of
a
receiver, Mortgagee shall have the right, in accordance with Sections 15-1701
and 15-1702 of the Act, to be placed in possession of the Mortgaged Property
or
at its request to have a receiver appointed, and such receiver, or Mortgagee,
if
and when placed in possession, shall have, in addition to any other powers
provided in this Mortgage, all rights, powers, immunities, and duties as
provided for in Sections 15-1701 and 15-1703 of the Act; and
(e) Mortgagor
acknowledges that the Mortgaged Property does not constitute agricultural real
estate, as said term is defined in Section 15-1201 of the Act or residential
real estate as defined in Section 15-1219 of the Act. Pursuant to Section
15-1601(b) of the Act, Mortgagor hereby waives any and all right of
redemption.
Section
8.6 Variable
Rate; Additional Interest.
This
Mortgage secures the full and timely payment of the Obligations, including,
among other things, the obligation to pay interest on the unpaid principal
balance at a variable rate of interest as provided in the Credit Agreement
and
the Additional Debt Documents.
Section
8.7 Incorporation
by Reference.
In
connection with its appointment and acting hereunder, Mortgagee is entitled
to
all rights, privileges, protections, immunities, benefits and indemnities
provided to it under the Collateral Agency Agreement.
[The
remainder of this page has been intentionally left
blank]
14
IN
WITNESS WHEREOF,
Mortgagor has on the date set forth in the acknowledgement hereto, effective
as
of the date first above written, caused this instrument to be duly EXECUTED
AND
DELIVERED by authority duly given.
|
MORTGAGOR:
|
AMERENENERGY
RESOURCES GENERATING COMPANY,
|
|
an
Illinois corporation
|
|
|
By:
/s/ Xxxxx X.
Xxxxxxxx
|
|
|
Name:
Xxxxx X. Xxxxxxxx
|
|
|
Title:
Vice President and Treasurer
|
S-1
STATE
OF
MISSOURI )
)
ss.:
COUNTY
OF
ST. LOUIS
)
I,
Xxxxx
X. Xxxxx, a Notary Public in and for said County, in the State aforesaid, DO
HEREBY CERTIFY, that Xxxxx X. Xxxxxxxx, personally known to me to be the Vice
President and Treasurer of AMERENENERGY RESOURCES GENERATING COMPANY, an
Illinois corporation, whose name is subscribed to the within instrument,
appeared before me this day in person and severally acknowledged that as such
Vice President and Treasurer he signed and delivered the said instrument as
Vice
Present and Treasurer of said corporation as his free and voluntary act and
as
the free and voluntary act and deed of said corporation, for the uses and
purposes therein set forth.
GIVEN
under my hand and Notarial Seal, this 14th day of July, A.D. 2006.
_/s/_Carla
J. Flynn_______________________
Notary
Public
My
Commission Expires: 4-20-2010
N-1
EXHIBIT
A
LEGAL
DESCRIPTION
The
permanent tax index numbers for the Land are 20-14-200-001; 00-00-000-000;
and
20-14-200-003.
Legal
Description of premises located in Peoria County, Illinois:
[See
Attached Page(s) For Legal Description]
Exh.
A-1
EXHIBIT
B
PERMITTED
ENCUMBRANCES
Those
exceptions set forth in Schedule B of that certain policy of title insurance
issued to Mortgagee by Chicago Title Insurance Company on or about the date
hereof pursuant to policy number 450154825 dated July 14, 2006.
Exh.
B-1