Exhibit 10.8(b)
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COLLATERAL MORTGAGE
SECURITY AGREEMENT United States of America
AND State of Louisiana
ASSIGNMENT OF LEASES AND RENTS Parish of Lafayette
BY
AMERICAN FIRE RETARDANT CORPORATION
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BE IT KNOWN, that on this 13th day of December, 1996 before me, XXXXXXX X.
XXXXX, a Notary Public, duly commissioned and qualified in and for the aforesaid
State and Parish, and In the presence of the undersigned, competent witnesses,
personally came and appeared:
AMERICAN FIRE RETARDANT CORPORATION (TIN 00-0000000), a Louisiana
corporation domiciled in Lafayette Parish, Louisiana, herein represented by
its duly authorized Secretary, Xxxxxx X. Xxxxxxx, pursuant to the
Resolution of the Board of Directors, the original of which is attached
hereto and made a part hereof, whose mailing address is 000 Xxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx 00000,
(hereinafter, whether one or more, referred to as "Mortgagor").
Mortgagor declared that in order to borrow funds from any person, firm, or
corporation willing to loan the same and to enable Mortgagor to secure any
obligation of Mortgagor now existing or hereafter arising, Mortgagor declares
and acknowledges a debt in the principal sum of SEVENTY-FOUR THOUSAND FOUR
HUNDRED ($. 74,400.00 ) Dollars, evidenced by one certain promissory note
executed by Mortgagor on the date hereof in the principal amount of SEVENTY-FOUR
THOUSAND FOUR HUNDRED ($ 74,40O.-Dollars, made payable to the order of bearer,
due on demand at Whitney National Bank, 000 Xx. Xxxxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxx 00000, or at any one of its branches, bearing interest at the rate of
eighteen (18%) percent per annum from date until paid, and providing for ten
(10%) percent attorneys' fees (the "Note").
The Note was paraphed "Ne Varietur" on the date hereof by the undersigned
Notary Public for identification with this mortgage and was delivered to
Mortgagor, who acknowledges its receipt. Mortgagor further declared that a
security interest may be granted in the Note or that the Note may be otherwise
negotiated for the purpose of borrowing funds and securing obligations, whether
now existing or hereafter arising, including without limitation, the repayment
of loans previously or hereafter made to Mortgagor, all of Mortgagor's
obligations, covenants, agreements, representations, and warranties in any
present or future loan, credit, or other agreement, and all of Mortgagor's
obligations as endorser, guarantor, or surety of the obligations of others.
Mortgagor hereby acknowledges to be indebted unto any future holder or holders
of the Note in the full amount of the Note, together with interest, attorneys'
fees, insurance premiums, taxes, collection costs, keeper's fees, and all other
costs, if any should accrue.
If the Note is referred to an attorney-at-law institute legal proceedings
to recover all or any part of the principal or interest on the Note, to protect
interests of the holder or holders of the Note, or for collection, compromise,
or other action, Mortgagor hereby agrees to pay the fee of the attorney who may
be employed for that purpose, which fee is hereby fixed at ten (10%) percent of
the amount due, sued for, claimed, or sought to be protected, preserved or
enforced.
Now, in order to secure the payment of the indebtedness evidenced by the
Note, together with all interest, attorneys' fees, insurance premiums, taxes,
collection costs, keeper's fees, and all other costs and to secure the
observance and performance of all of tile obligations, covenants, agreements,
and stipulations contained in this mortgage, Mortgagor does by these presents
specially mortgage, pledge, affect, and hypothecate unto and in favor of any
future holder or holders of the Note (hereinafter called "Mortgagee"), whether
the Note is held as an original obligation or in pledge, or as security for the
obligations described herein, tile following described property (the
"Premises"):
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That certain lot of ground, together with all buildings and
improvements and the improvements parts thereof, with all rights,
ways, privileges, and servitudes thereunto appertaining, situated in
Lafayette Parish, Louisiana, and being known and designated as XXX 0,
XXXXXXX XXXXXXXX XXXX, said lot having such measurements, boundaries,
configurations, and dimensions as are more fully shown on that certain
plat of survey prepared by Xxxxxxx X. Xxxxxx & Associates, Inc., dated
November 8, 1996, a copy of which is attached hereto and made a part
hereof; which lot bears the municipal address of 000 Xxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx 00000.
Together with all buildings, constructions, and improvements now or hereafter
existing on the Premises, all other component parts of -the Premises, all
component parts of the buildings, constructions, and improvements now or
hereafter on the Premises, all appurtenances, attachments, rights, ways,
privileges, servitudes, advantages, batture and batture rights belonging or in
any wise appertaining to the Premises, affecting the Premises, or now or
hereafter forming part of, attached to, or connected with the Premises or used
in connection with the Premises.
The Premises and all other property described above are hereinafter
referred to as the "Mortgaged Property".
1. COLLATERAL ASSIGNMENT OF LEASES AND RENTS
As additional security for the payment of the indebtedness evidenced by the
Note, together with all interest, attorneys' fees, insurance premiums, taxes,
collection costs, keeper's fees, and all other costs and to secure the full and
punctual payment and performance of all other obligations of Mortgagor to
Mortgagee, now existing or hereafter arising, up to the maximum amount of five
(5) times the principal amount of the Note, Mortgagor does hereby pledge, pawn,
grant a security interest in, transfer, assign, set over, abandon, and deliver
with full subrogation to Mortgagee all right, title, and interest of Mortgagor
in and to (i) all present and future rents, fruits, revenues, income, and
profits accruing from time to time from the use, possession, occupancy, or lease
of all or any part of the Mortgaged Property and from Mortgagor's operation
thereof (collectively, the "Rents") and (ii) all present and future leases on
all or any part of the Mortgaged Property (collectively, the "Leases"). Although
this creates a present assignment and vested security right in favor of
Mortgagee, Mortgagor shall be entitled to collect, use, commingle, and dispose
of the Rents as long as there has been no Default (as hereinafter defined) under
this mortgage or until Mortgagee sends written notice as hereinafter provided.
Mortgagor covenants and agrees not to execute in favor of any person, firm,
or corporation any sale, assignment, pledge, or other document that affects or
encumbers the Rents or Leases until all obligations secured by this mortgage
have been paid in full.
Upon the occurrence of a Default or upon Mortgagee sending written notice
to Mortgagor at Mortgagor's address set forth above by hand delivery or by
deposit in the United States mail, certified mail, return receipt requested,
Mortgagee shall have the right to receive and collect the Rents until all
obligations secured by this mortgage have been paid in full. Mortgagor hereby
irrevocably makes, constitutes, and appoints Mortgagee its attorney-in-fact,
either in its own name or in the name of Mortgagee, to demand, xxx for, collect,
receive, and receipt for the Rents, to endorse in the name of Mortgagor any
checks or drafts payable to Mortgagor that may be received or collected on
account of or in payment of the Rents, to settle, adjust and compromise, without
incurring any liability in connection therewith, all present and future claims
arising out of the Rents and Leases, and to exercise all the rights and
privileges of Mortgagor under any lease of all or any part of the Mortgaged
Property, including without limitation, the right to fix or modify the amount of
the Rents, to evict any lessee, tenant or occupant (the "Lessee") from the
Mortgaged Property, to relet such property and to do all such things as
Mortgagee may deem necessary. Mortgagor hereby irrevocably consents that all
Lessees of the Mortgaged Property shall be authorized to pay the Rents directly
to Mortgagee without liability for the determination of the actual existence of
any Default, the Lessees being hereby expressly relieved of any and all duty,
liability, and obligation to Mortgagor in connection with all Rents so paid to
Mortgagee. All Rents collected under this mortgage shall be applied, after
payment of all costs and charges, as a credit against tile indebtedness secured
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by this mortgage. Mortgagor specifically declares that this assignment shall not
operate (i) to place any responsibility for the control, care, management, or
repair of the Mortgaged Property upon the Mortgagee or for the carrying out of
any of tile terms or conditions of any present or future lease that may affect
the Mortgaged Property, or (ii) to make Mortgagee responsible or liable for (a)
any waste committed on the Mortgaged Property by any Lessee or by any other
party, (b) the dangerous or defective condition of the Mortgaged Property,
including but not limited to liability as described in Louisiana Civil Code
Articles 2315 through 2324, or (c) any negligence in the management, upkeep,
repair, or control of the Mortgaged Property that may result in loss, injury, or
death to any Lessee or other party.
This assignment of Leases and Rents is made by Mortgagor and accepted by
Mortgagee solely for the benefit and protection of Mortgagee, and all leases and
other contracts affecting the Mortgaged Property which are unrecorded or
inferior in ranking to this mortgage shall at all times be and remain
subordinate to this mortgage. If the Mortgaged Property is transferred by virtue
of any judicial foreclosure proceeding, the Mortgaged Property may, in
Mortgagee's sole discretion, be transferred free and clear of, and unencumbered
by, any and all subordinate subleases, assignments, and contracts,
11.COVENANTS OF THE MORTGAGOR
Mortgagor covenants and agrees to the faithful fulfillment of the following
stipulations in favor of Mortgagee:
1. The Mortgaged Property shall remain specially mortgaged, pledged,
affected and hypothecated to Mortgagee until the full and final payment of the
Note, and all interest, attorneys' fees, insurance premiums, taxes, collection
costs, keeper's fees, and all other costs. Mortgagor agrees not to abandon,
sell, transfer, lease, donate, exchange, pledge, assign, convey, alienate, or
further encumber any of the Mortgaged Property or any interest therein and shall
not permit any other party to do so. In no event shall any such act by
Mortgagor, whether or not authorized by Mortgagee, prejudice the rights of
Mortgagee under this mortgage.
2. Mortgagor shall maintain the Mortgaged Property in good condition and
shall make all repairs, additions, and improvements necessary to maintain the
Mortgaged Property in good condition and to prevent any impairment of the
security of this mortgage. If Mortgagor fails to maintain the Mortgaged Property
in good condition, Mortgagee may, at its option, cause the Mortgaged Property to
be maintained in good condition at Mortgagor's cost. Nothing in this mortgage
shall be construed to require Mortgagee to maintain the Mortgaged Property in
good condition or to repair the Mortgaged Property.
3. (a) Mortgagor shall keep the Mortgaged Property constantly insured
against risk of loss by fire, wind, storm, flood, tornado, theft, and all such
other hazards, casualties, and contingencies as may be deemed necessary by
Mortgagee. The insurance shall be in such amounts and shall be issued by such
companies as are acceptable to Mortgagee. All policies of insurance shall be
delivered to Mortgagee, shall contain a loss payable clause in favor of
Mortgagee, and shall be in a form acceptable to Mortgagee. All renewal policies
shall be delivered to Mortgagee at least fifteen (15) days prior to the
expiration date of the existing policy. If Mortgagor fails to comply with the
provisions of this paragraph in any respect, Mortgagee may, at its option,
obtain the required insurance at Mortgagor's cost, but Mortgagee shall not be
responsible for the solvency of any company issuing any insurance policy,
whether approved or selected by Mortgagee, or for the collection of any amount
due under any insurance policy except to the extent such amount is actually
received by Mortgagee. Nothing in this mortgage shall be construed to require
Mortgagee to obtain such insurance or to make Mortgagee liable in any way for
any loss, claim, damage, or injury resulting from any failure to obtain such
insurance.
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(b) The insurance policies required by this mortgage shall provide that any
loss payable to Mortgagee and Mortgagor, as their respective interests may
appear, shall be payable notwithstanding any act or negligence of Mortgagor or
of any other party, which would otherwise result in a forfeiture of such
insurance, and that in no event shall such policy be cancelled even for
nonpayment of premium or the coverage thereunder reduced in any manner without
at least thirty (30) days prior written notice to Mortgagee.
(c) Mortgagor shall promptly notify Mortgagee of any insured loss. If
Mortgagee receives any sum of money from any insurance policy affecting the
Mortgaged Property, Mortgagee may, at its option and in such manner as it may
determine, (i) retain the money and apply it toward the payment of any debt
secured by this mortgage or by a pledge of tile Note with Mortgagee having the
right to impute the money among the debts in any manner as Mortgagee wants, or
(ii) pay all or part of the money, under such conditions as Mortgagee may
determine, to Mortgagor to enable Mortgagor to repair or restore the Mortgaged
Property or use the money for any other purpose satisfactory to Mortgagee, all
without prejudice to, and without affecting the lien of, this mortgage.
4. Mortgagor shall pay promptly when due all taxes, local and special
assessments, and governmental and utility charges (collectively, the "Taxes") of
every description imposed, assessed, or levied on all or any part of the
Mortgaged Property, and Mortgagor shall furnish Mortgagee evidence of the
payment of the Taxes. If Mortgagor for any reason does not pay promptly when due
any of the Taxes, Mortgagee is hereby authorized to pay such unpaid Taxes with
full subrogation to all rights of all authorities imposing such Taxes by reason
of Mortgagee's payment, and Mortgagor shall promptly reimburse Mortgagee for all
Taxes paid by Mortgagee. Nothing herein shall be construed, however, to require
Mortgagee to pay any Taxes, and Mortgagee shall not be responsible or liable for
any penalty, loss, or damage resulting from the nonpayment of any Taxes.
5. Mortgagor shall pay promptly when due all of Mortgagor's obligations and
all lawful claims and demands that might, if unpaid, result in or permit the
creation of a lien or encumbrance on all or any part of the Mortgaged Property.
Mortgagor shall do everything necessary to preserve the priority of this
mortgage without any expense to Mortgagee. Mortgagor shall notify Mortgagee
immediately if any lien is filed against all or any part of the Mortgaged
Property or if all or any part of the Mortgaged Property is seized, attached, or
levied against in any way. Mortgagor shall obtain the release of the Mortgaged
Property from any seizure, lien, or attachment within seven (7) days from any
such occurrence. If Mortgagor fails to obtain the release of the Mortgaged
Property within seven (7) days, Mortgagee may, at its option obtain the release
of the Mortgaged Property at Mortgagor's expense.
6. Mortgagor shall pay promptly on demand the full amount due on the Note
and under this mortgage without any deduction for taxes, assessments, or
governmental charges on (a) the Note, (b) all or any part of any debt or
interest evidenced by the Note, or (c) this mortgage that Mortgagor may be
required or permitted to deduct, obtain, or pay pursuant to any present or
future law of the United States or of any state, parish, municipality, or taxing
authority of the same, except insofar as prohibited by law. If any law is passed
after the date of this mortgage requiring or permitting Mortgagee to pay any
such taxes, assessments, or governmental charges, Mortgagor shall pay all such
taxes, assessments, and governmental charges assessed against Mortgagee because
of this mortgage.
7. Mortgagor shall comply with all laws, ordinances, regulations,
covenants, conditions, and restrictions affecting the Mortgaged Property, its
use, construction, or maintenance.
8. Mortgagor shall not remove any part of the Mortgaged Property from its
present location without Mortgagee's prior written consent.
9. Mortgagor shall permit Mortgagee and its agents to have access to, and
they shall have the right to inspect, the Mortgaged Property at all reasonable
times.
10. Mortgagor shall, if requested by Mortgagee, pay to Mortgagee an amount
equal to the estimated annual Taxes and the premiums for the insurance required
under Section 11, Paragraph 3 hereof, so that Mortgagee shall have sufficient
funds available to pay such Taxes and insurance premiums, and shall, at the
option of Mortgagee, pay such amounts either (i) thirty (30) days before they
become due or (ii) in equal monthly payments, with such payments commencing one
(1) month after the date of this mortgage.
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11. Mortgagor warrants (a) that it lawfully owns and possesses the
Mortgaged Property, (b) that, to the extent the ownership thereof can be
registered, the Mortgaged Property is registered in Mortgagor's name, (c) that
the Mortgaged Property has not been alienated by Mortgagor, and (d) that there
are no mortgages, liens, or encumbrances against the Mortgaged Property and
there are no judgments of any court of record against Mortgagor unless
specifically listed here:
Mortgagor agrees to cancel forthwith the mortgages, liens, and
encumbrances listed above unless specifically listed here:
Mortgagor agrees to perform timely all terms and conditions of any
mortgage, lien, or encumbrance that is not cancelled.
12. Mortgagor warrants that there are no Taxes due and payable on the
Mortgaged Property and that all such Taxes have been paid up to and including
the year 1995
13. Mortgagor hereby acknowledges that a security interest may be granted
in the Note to secure an obligation maturing beyond the prescriptive period
applicable to the Note, and Mortgagor hereby agrees to acknowledge the Note
prior to the date on which the Note may prescribe. Any payment of principal or
interest on any promissory note or other obligation secured by the grant of a
security interest affecting the Note shall interrupt prescription on the Note
and on every note and other obligation of Mortgagor that is secured by the
pledge of the Note.
14. Mortgagor hereby agrees to promptly pay all charges, costs, and
attorneys' fees incurred in connection with the preparation, execution, and
recordation of this mortgage and any other related document as may be required
by Mortgagee.
III. DEFAULT AND REMEDIES OF THE MORTGAGEE
1. The occurrence of any one or more of the following events shall
constitute a default (a "Default") under this mortgage:
(a) failure to pay promptly on demand any principal or interest due on the
Note;
(b) failure to pay promptly on demand any sums advanced by Mortgagee for
the payment of insurance premiums, taxes, the cost of maintaining the
Mortgaged Property in good repair, or the cost of obtaining the release of
the Mortgaged Property from any seizure, lien, or attachment;
(c) failure by Mortgagor to observe or perform any of Mortgagor's
covenants, agreements, and obligations under this mortgage;
(d) the inaccuracy of any warranty made by Mortgagor to Mortgagee in this
mortgage or otherwise;
(e) any default in the observance or performance of any obligation,
agreement, or covenant in any obligation the Note is pledged to secure,
including without limitation failure to make any payment of principal or
interest when due; or
(f) the seizure of all or any part of the Mortgaged Property under a writ
of executory process, sequestration, attachment, fieri facias, or any other
legal process or the issuance of an order for the sale of all or any part
of the Mortgaged Property in any judicial proceeding.
2. If a Default occurs, Mortgagee may, at Mortgagee's option, without
notice to Mortgagor, declare the Note and all indebtednesses and obligations the
Note is pledged to secure or for which the Note is given as security to be
immediately due and payable, anything in the Note, this mortgage, or any
document evidencing the indebtednesses and obligations the Note is pledged to
secure or for which the Note is given as security to the contrary
notwithstanding. For purposes of executory process, Mortgagor confesses judgment
in favor of Mortgagee for the full amount of the Note in principal, interest,
attorneys' fees, and all other costs and charges, including all sums Mortgagee
advances during tile life of this mortgage for the payment of insurance
premiums, taxes, assessments, or for any other payment made by Mortgagee in
accordance with the terms of this mortgage. Mortgagor hereby agrees that it
shall be lawful for Mortgagee, and Mortgagor does hereby authorize Mortgagee,
without making demand and without notice and putting in default, all of which
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are hereby expressly waived, to cause all or any part of the Mortgaged Property
to be seized and sold under executory or other legal process without
appraisement, which is hereby expressly waived, as an entirety or in parcels, as
Mortgagee may determine, to the highest bidder for cash, or on such terms as are
acceptable to Mortgagee. Mortgagor acknowledges that nothing in this mortgage
shall in any way affect or impair Mortgagee's right to demand payment of the
Note according to its tenor. Any failure by Mortgagee to exercise the options
granted to it if a Default occurs shall not constitute a waiver of Mortgagee's
right to exercise such options at any other time.
3. To the extent permitted by law, Mortgagor hereby expressly waives:
(a) The benefit of appraisement provided for in Articles 2332, 2336, 2723
and 2724, Louisiana Code of Civil Procedure, and all other laws conferring
such benefits;
(b) The demand and three (3) days delay accorded by Articles 2639 and 2721,
Louisiana Code of Civil Procedure;
(c) The notice of seizure required by Articles 2293 and 2721, Louisiana
Code of Civil Procedure;
(d) The three (3) days delay provided by Articles 2331 and 2722, Louisiana
Code of Civil Procedure;
(e) The benefit of the other provisions of Articles 2331, 2722, and 2723,
Louisiana Code of Civil Procedure;
(f) The benefit of the provisions of any other articles of the Louisiana
Code of Civil Procedure not specifically mentioned above; and
(g) All rights of division and discussion with respect to any indebtedness
or obligation secured by this mortgage.
Mortgagor expressly agrees to the immediate seizure of the Mortgaged
Property in the event of a suit for the recognition or foreclosure of this
mortgage.
Mortgagor hereby waives all homestead exemptions relating to the Mortgaged
Property to which Mortgagor is or may be entitled under the constitution and
laws of the State of Louisiana or of the United States of America.
4. If Mortgagor fails to pay or perform any 'of its obligations under this
mortgage, Mortgagee may, but shall not be obligated to, pay or perform any such
obligations, and all sums paid by Mortgagee in connection with the payment and
performance of such obligations shall be secured by this mortgage.
5. Pursuant to Louisiana Revised Statutes 9:5136, et seq., Mortgagor hereby
designates Mortgagee, or any employee, agent, or other person named by Mortgagee
at the time any seizure of the Mortgaged Property is effected by Mortgagee to
serve as a keeper of the Mortgaged Property pending the judicial sale thereof.
The keeper's fees shall be determined by the Court before which the proceedings
are pending, and the payment of such fees shall be secured by this mortgage.
6. If any proceedings are instituted to enforce this mortgage by executory
process or otherwise, all declarations of fact made by authentic act before a
notary public in the presence of two witnesses by a person declaring that such
facts lie within that person's knowledge shall constitute authentic evidence of
such facts for the purpose of executory process.
IV. SECURITY AGREEMENT AND COLLATERAL ASSIGNMENT
AND PLEDGE OF INCORPOREAL RIGHTS AND PROCEEDS
1. This mortgage shall attach to subsequent additions, substitutions, and
replacements to and for the Mortgaged Property, as well as to present and future
component parts of the Mortgaged Property and to natural increases, accessions,
accretions, and issues of the Mortgaged Property, and as additional security for
the payment of the indebtedness evidenced by the Note, together with all
interest, attorneys' fees, insurance premiums, taxes, collection costs, keeper's
fees, and all other costs and to secure the full and punctual payment and
performance of all other obligations of Mortgagor to Mortgagee, now existing or
hereafter arising, up to the maximum amount of five (5) times the principal
amount of the Note, Mortgagor does hereby collaterally assign and pledge and
grant to Mortgagee a continuing security interest in all incorporeal rights that
are or may be incidental or accessory to the Mortgaged Property or its use (the
"Incorporeal Rights"), including without limitation the following:
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(i) the right to receive proceeds and fruits attributable to the sale,
lease, insurance loss, or condemnation of the Mortgaged Property;
(ii) rights under service, maintenance, or warranty contracts with
regard to the Mortgaged Property; and
(iii) rights under trade names, patents, or copyrights that are
subject to use in connection with the Mortgaged Property or
Mortgagor's business or other activities with regard thereto.
2. Upon and after the occurrence of a Default, Mortgagee may, at its
option, exercise any rights of the Mortgagor under the Incorporeal Rights, and
Mortgagee is hereby vested with full power to use all remedies, legal and
equitable, including without limitation the right to exercise all rights of a
pledgee to enforce a pledge under Louisiana law, deemed by it necessary or
proper to enforce this collateral assignment and pledge and security interest
and to exercise Mortgagor's rights under the Incorporeal Rights assigned
hereunder.
3. Mortgagor does hereby name, constitute, and appoint Mortgagee and
Mortgagee's agents as Mortgagor's true and lawful agent and attorney-in-fact
with full power of substitution and with power for Mortgagee in its name and
capacity or in the name and capacity of Mortgagor to carry out and enforce any
or all of the Incorporeal Rights collaterally assigned and pledged or otherwise
encumbered under this mortgage and at Mortgagee's sole discretion to file any
claim or take any other action or proceedings and make any settlement of any
claims, either in its own name or in the name of Mortgagor or otherwise, that
Mortgagee may deem necessary or desirable in order to collect and enforce the
payment and performance of the obligations owed to Mortgagor under the
Incorporeal Rights. Upon receipt of a written notice from Mortgagee that a
Default exists, the parties to the Incorporeal Rights (other than Mortgagor) are
hereby expressly and irrevocably authorized and directed to pay any and all
amounts and perform any duties, liabilities, or obligations due to Mortgagor
pursuant to any of the Incorporeal Rights to and for Mortgagee or such nominee
as Mortgagee may designate in such notice. The power of attorney granted to
Mortgagee and its agents is coupled with an interest and may not be revoked by
Mortgagor as long as this mortgage remains in effect.
4. Nothing in this mortgage shall be construed to impose any obligation,
responsibility, or liability on Mortgagee or its agents to prosecute any of the
Incorporeal Rights hereunder or to perform or carry out any of the obligations,
duties, responsibilities, or liabilities of Mortgagor under or in connection
with the Incorporeal Rights, it being understood and agreed that the collateral
assignment and pledge of, and security interest in, the Incorporeal Rights is a
collateral assignment and pledge of, and grant of a security interest in, rights
only and not of any obligations, duties, responsibilities, or liabilities.
Mortgagee does not assume any responsibility for any covenants of Mortgagor in
connection with any of the Incorporeal Rights. Mortgagor hereby agrees to
indemnify and defend the Mortgagee and its agents, employees, successors, and
assigns (the "Indemnified Parties") and to hold them harmless from any cost,
expense, liability, loss, or damage, including, without limitation, reasonable
attorneys' fees, which may or might be incurred by them by reason of the
collateral assignment and pledge of the Incorporeal Rights in this mortgage. The
obligation set forth herein to indemnify, defend, and hold the Indemnified
Parties harmless shall be secured by this mortgage.
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V. OTHER PROVISIONS
1. As additional security for the payment of the indebtedness evidenced by
the Note, together with all interest, attorneys' fees, insurance premiums,
taxes, collection costs, keeper's fees, and all other costs and to secure the
full and punctual payment and performance of all other obligations of Mortgagor
to Mortgagee, now existing or hereafter arising, up to the maximum amount of
five (5) times the principal amount of the Note, Mortgagor hereby grants a
security interest in, pledges and assigns to Mortgagee (a) all awards from any
condemnation, appropriation, or expropriation of all or any part of the
Mortgaged Property by any governmental authority, and (b) all awards or proceeds
received from any insurance policy covering the Mortgaged Property. Such awards
shall be applied by Mortgagee to the reduction of the indebtedness secured by
this mortgage.
2. Mortgagee may at any time and without notice to any party (a) release
any of the Mortgaged Property from the effect of this mortgage, (b) grant an
extension of time to any party for the performance of any obligation under this
mortgage, the Note, or any obligation for which the Note is given as security
(collectively, the "Secured Obligations"), or (c) release any one or more
parties from the Secured Obligations without affecting the lien of this mortgage
or the personal liability of Mortgagor or any other party to the Secured
Obligations.
3. Possession of the Note at any time by Mortgagor shall not in any manner
extinguish the Note or this mortgage, and Mortgagor shall have the right to
issue and reissue the Note one or more times without in any manner extinguishing
or affecting the obligation on the Note or the security of this mortgage.
4. Notwithstanding anything to the contrary, the maximum amount for which
this mortgage shall secure the Note and any indebtedness or obligations
stipulated in this mortgage is hereby fixed at an amount not to exceed five (5)
times the principal amount of the Note.
5. The parties to this mortgage waive the production of mortgage
certificates and all other certificates or researches and relieve and release
the undersigned Notary Public and the surety on the undersigned Notary Public's
bond from any and all responsibility and liability in connection therewith.
6. It is expressly agreed that any and all stipulations, agreements,
warranties, and covenants by Mortgagor in favor of Mortgagee contained in this
mortgage, and all rights, powers, and privileges conferred in this mortgage on
Mortgagee by any of the provisions of this mortgage shall inure to and be
for the benefit of and may be exercised by Mortgagee, its successors, and
assigns. All covenants and agreements contained in this mortgage to be observed
or performed by Mortgagor shall be binding upon Mortgagor and upon Mortgagor's
heirs, administrators, executors, successors, and assigns, as well as upon any
person, firm, or corporation hereafter acquiring title to the Mortgaged
Property, or any part thereof, by, through, or under Mortgagor, and the word
"Mortgagor," unless the context otherwise requires, shall also mean and include
the heirs, administrators, executors, successors, and assigns of Mortgagor, and
any other person, firm, or corporation acquiring title to any of the Mortgaged
Property by, through, or under Mortgagor.
7. Any headings in this mortgage are for convenience only and shall not be
construed as a limitation on the scope of the particular part of the mortgage to
which they refer.
8. If any provision of this mortgage is invalid or unenforceable, such
invalidity or unenforceability shall not affect the other provisions of this
mortgage.
AND NOW UNTO THESE PRESENTS personally came and appeared Xxxxx X. Xxxxxxx,
XX who on behalf of Mortgagee hereby accepts this mortgage.
Page 8
THUS DONE AND PASSED, in multiple originals at Lafayette Louisiana, on the
day, month, and year first above written, in the presence of Xxxxxx X. Xxxxxxx
and Xxxxxx Xxxxxx, the undersigned competent witnesses, who sign their names
with the appearers and the undersigned Notary Public.
WITNESSES: MORTGAGOR:
AMERICAN FIRE RETARDANT CORPORATION
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------
By: XXXXXX X. XXXXXXX, Secretary
INTERVENOR:
---------------------------------------
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------------
XXXXXXX X. XXXXX, Notary Public
Page 9
[MAP AND PLAT SURVEY OF PROPERTY]
