EXHIBIT 10(G)
THE MAXIMUM PRINCIPAL AMOUNT OF INDEBTEDNESS SECURED BY THIS MORTGAGE IS TWO
MILLION AND NO/100 DOLLARS ($2,000,000.00), AS MORE PARTICULARLY DESCRIBED
HEREIN.
This instrument prepared by:
Xxxxxxx X. Xxxxx
Xxxxxxx Xxxxx Xxxx & 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 AMSOUTH BANK, an Alabama banking corporation ("Mortgagee"), whose
address is 0000 0xx Xxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
W I T N E S S E T H:
--------------------
WHEREAS, Xxxxxxxxxx have become justly indebted to Mortgagee in the sum
of Seven Million Five Hundred Thousand and No/100 Dollars ($7,500,000.00)
together with interest thereon, as evidenced by that certain Modified, Amended
and Restated Line of Credit Note dated as of June 15, 2001 in the original
principal amount of $11,000,000.00, as amended to reduce the outstanding amount
to $7,500,000.00.
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
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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
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 xxxxxx, 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 Florence, 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
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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 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,
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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 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.
This mortgage is given to secure the Secured Indebtedness; provided,
however, that notwithstanding anything to the contrary contained herein: (i) the
maximum principal amount of indebtedness secured by this mortgage (the
"Principal Indebtedness") shall be limited to the sum of Two Million and No/100
Dollars ($2,000,000.00) (the "Maximum Principal Amount") of the
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Secured Indebtedness outstanding from time to time; and (ii) the limitation
contained in this paragraph shall pertain only to the Principal Indebtedness and
shall not be construed as limiting the amount of interest, fees, expenses,
indemnified amounts and other Secured Indebtedness secured hereby that are not
Principal Indebtedness, it being the intention of the parties to this mortgage
that this mortgage shall secure any Principal Indebtedness remaining unpaid at
the time of foreclosure up to the Maximum Principal Amount, plus interest
thereon, all costs of collection and all other amounts (except Principal
Indebtedness in excess of the Maximum Principal Amount) included in the Secured
Indebtedness. This Mortgage shall secure the last remaining unpaid portion of
the Secured Indebtedness and therefore (i) the security of this Mortgage shall
not be diminished by any prepayment or repayment of the Secured Indebtedness,
and (ii) this Mortgage shall remain in full force and effect until all of the
Secured Indebtedness are paid in full and all other obligations secured hereby
are paid and performed in full.
This mortgage is junior and subordinate to that certain first mortgage
granted to M-TIN, LLC, an Alabama limited liability company, recorded in the
office of the judge of probate of Lauderdale County at _______________,
______________________, and in the office of the judge of probate of Colbert
County at ___________________, ____________, and in the office of the judge of
probate of Limestone County at ________________________, __________________
(hereinafter called the "Prior Mortgage"). It is specifically agreed that in the
event default should be made in the payment of principal, interest or any other
sums payable under the terms and provisions of the Prior Mortgage, Mortgagee
shall have the right without notice to anyone, but shall not be obligated, to
make good such default by paying whatever amounts may be due under the terms of
the Prior Mortgage so as to put the same in good standing, and any and all
payments so made shall be added to the obligations secured by this mortgage and
the obligations (including all such payments) shall be immediately due and
payable, at the option of Mortgagee, and this Mortgage shall be subject to
foreclosure in all respects as provided by law and by the provisions hereof.
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, and 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 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.
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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 Xxxxxxxxxx. 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 Xxxxxxxxxx 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, Xxxxxxxxxx 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.
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,
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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 Xxxxxxxxxx, 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 Xxxxxxxxxx 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 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
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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, Xxxxxxxxxx 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 Xxxxxxxxxx' 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.
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
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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 Xxxxxxxxxx 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 Xxxxxxxxxx, 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
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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 Xxxxxxxxxx' 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 Xxxxxxxxx's rights and remedies in respect of the real property,
at the election of Mortgagee. At Mortgagee's request, Xxxxxxxxxx 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.
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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10
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
