EXHIBIT 10.6
MORTGAGE, ASSIGNMENT OF LEASES
AND SECURITY AGREEMENT
BY AND AMONG
THE INDUSTRIAL DEVELOPMENT BOARD
OF THE CITY OF MONTGOMERY
AND
KINPAK INC.,
IN FAVOR OF
REGIONS BANK
DATED AS OF
JULY 1, 2002
THIS INSTRUMENT PREPARED BY
JOHN F. ANDREWS
CAPELL & HOWARD, P.C.
P. O. BOX 2069
MONTGOMERY, AL 36102-2069
(334) 241-8000
STATE OF ALABAMA )
:
MONTGOMERY COUNTY )
MORTGAGE, ASSIGNMENT OF LEASES
AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF LEASES AND SECURITY AGREEMENT dated as of
July 1, 2002, is entered into by KINPAK INC., an Alabama corporation (herein
called "KINPAK") and THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF MONTGOMERY,
an Alabama public corporation (herein called the "Board" and together with
KINPAK, the "Mortgagors"), for the benefit of REGIONS BANK, an Alabama banking
corporation with a principal place of business in Montgomery, Alabama (herein
called the "Bank");
R E C I T A L S
The Mortgagors have requested that the Bank provide to KINPAK and the
following affiliated parties: Ocean Bio-Chem, Inc., Star-Brite Distributing,
Inc., Star Brite Automotive, Inc. and Star Brite Distributing (Canada), Inc.
(collectively with KINPAK, the "Borrowers") the following credit facilities (the
"Credit Facilities"): (i) a direct-pay irrevocable letter of credit (the
"Substitute Letter") securing the payment of $4,000,000 Industrial Refunding
Revenue Bonds (KINPAK INC. Project) Series 1997 currently outstanding in the
principal amount of $3,280,000 (the "1997 Bonds") issued by the Board, (ii) a
direct-pay irrevocable letter of credit (the "Letter of Credit") securing the
payment of $3,500,000 Industrial Development Revenue Bonds (KINPAK INC. Project)
Series 2002 (the "2002 Bonds") issued by the Board concurrently herewith, and
(iii) a revolving working capital line of credit (the "Revolving Line of
Credit") in the maximum amount outstanding at any time of $5,000,000.
The 1997 Bonds were issued pursuant to a Trust Indenture dated as of
December 1, 1996, as amended and supplemented by First Supplemental Trust
Indenture dated as of March 1, 1997 (collectively, the "1997 Indenture") between
the Board and Regions Bank as Trustee (in such capacity the "1997 Trustee"). The
proceeds of the 1997 Bonds were used to refund certain prior revenue bonds of
the Board, the proceeds of which were used to renovate and improve a
manufacturing facility located in Montgomery, Alabama (the "Existing Facility")
currently leased by the Board to KINPAK pursuant to Restated Lease Agreement
dated as of December 1, 1996, as amended and supplemented by First Supplemental
Lease Agreement dated as of March 1, 1997 (collectively the "1997 Lease"). The
Borrowers have requested that the Bank issue the Substitute Letter in
substitution for the existing letter of credit heretofore issued by First Union
National Bank of Florida securing the 1997 Bonds.
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The 2002 Bonds are being issued pursuant to a Trust Indenture dated as
of July 1, 2002 (the "2002 Indenture") between the Board and Regions Bank, as
Trustee (acting in such capacity, the "2002 Trustee"). The Board will use the
proceeds of the 2002 Bonds to finance (i) the construction of an approximately
70,000 square foot addition to the Existing Facility and the acquisition of
certain machinery and equipment for use therein (collectively the "2002
Improvements") and (ii) the payment of a portion of the expenses of issuing the
2002 Bonds. KINPAK and the Board will enter into a Second Supplemental Lease
Agreement dated as of July 1, 2002 pursuant to which KINPAK will lease the 2002
Improvements from the Board and KINPAK will agree to pay additional rent to the
Board sufficient to pay the debt service on the 2002 Bonds. The Existing
Facility as improved by the 2002 Improvements is herein referred to as the
"Project." Regions Bank when acting in the capacity as both the 1997 Trustee and
2002 Trustee is herein referred to as the "Trustee."
As security for the payment of the 2002 Bonds, the Borrower will cause
the Bank to issue the Letter of Credit in favor of the 2002 Trustee in the
amount of (i) the aggregate principal amount of the 2002 Bonds, to enable the
2002 Trustee to pay the principal amount of the 2002 Bonds when due and to pay
the principal portion of the purchase price of 2002 Bonds tendered (or deemed
tendered) for purchase, plus (ii) interest on the 2002 Bonds for a period of 120
days at the rate of 12% per annum, to enable the 2002 Trustee to pay interest on
the 2002 Bonds when due and to pay the interest portion of the purchase price of
2002 Bonds tendered (or deemed tendered) for purchase.
The Revolving Line of Credit will be made available by the Bank to the
Borrowers pursuant to the terms hereof and the Borrowers will use the moneys
drawn under the Revolving Line of Credit to provide working capital for the
Borrowers' business operations. The obligations of the Borrowers under the
Revolving Line of Credit will be evidenced by a promissory note of the Borrowers
in favor of the Bank dated as of July 1, 2002.
The Substitute Letter , the Letter of Credit and the Revolving Line of
Credit are being issued pursuant to a Credit Agreement dated as of July 1, 2002
by and among the Borrowers and the Bank (the "Credit Agreement").
As security for the Borrowers' obligations under the Credit Agreement
with respect to the Substitute Letter, the Letter of Credit and the Revolving
Line of Credit the Board and KINPAK are executing this Mortgage, Assignment of
Leases and Security Agreement (this "Mortgage") in favor of the Bank.
NOW, THEREFORE, for value received and in consideration of the
foregoing recitals and to induce the Bank to enter into the Credit Agreement and
to issue the Substitute Letter , the Letter of Credit and make available the
Revolving Line of Credit, and to secure the prompt payment of all amounts due by
the Borrowers under the Credit Agreement, the Credit Facilities and the
documents and instruments securing the same, including, without limitation, this
Mortgage, and also to secure the full and complete performance of each and every
obligation, covenant, duty and agreement of the Mortgagors contained in this
Mortgage, the Mortgagors agree as follows:
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS. For all purposes of this Mortgage, except as
otherwise expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to
them in this Article. Singular terms shall include the plural as well as the
singular and vice versa.
(b) All references in this instrument to designated "articles,"
"sections" and other subdivisions are to the designated articles, sections and
subdivisions of this instrument as originally executed.
(c) The terms "herein," "hereof" and "hereunder" and other words of
similar import refer to this Mortgage as a whole and not to any particular
article, section or other subdivision.
(d) The term "person" shall include any individual, corporation,
partnership, limited liability company, joint venture, association, trust,
unincorporated organization and any government or any agency or political
subdivision thereof.
(e) Capitalized term not otherwise defined herein shall have the
meanings assigned in the Credit Agreement.
"ADDITIONAL PROJECT EQUIPMENT" means all items of furniture,
furnishings, fixtures, machinery, equipment or other personal property at any
time installed in or about the Project owned by the Borrowers, or any thereof,
the costs of which are not paid by the Board from the proceeds of the Bonds, or
are not otherwise Project Equipment.
"BANK" means Regions Bank, an Alabama banking corporation with a
principal place of business in Montgomery, Alabama, and its successors and
assigns.
"BOARD" means The Industrial Development Board of the City of
Montgomery, a public corporation organized under the laws of the State of
Alabama, and its successors and assigns.
"BONDS" means the 1997 Bonds and the 2002 Bonds.
"COLLATERAL" means all property and rights mortgaged, assigned, pledged
or otherwise subject to the lien of this Mortgage.
"CONDEMNATION AWARDS" has the meaning stated in the third Granting
Clause of Article II.
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"CREDIT AGREEMENT" means that certain Credit Agreement dated as of July
1, 2002, between the Borrowers and the Bank, including any amendments or
supplements to such instrument entered into pursuant to the applicable
provisions thereof.
"CREDIT FACILITIES" means, collectively, the Substitute Letter , the
Letter of Credit and the Revolving Line of Credit.
"EQUIPMENT" means the Project Equipment and the Additional Project
Equipment.
"EVENT OF DEFAULT" has the meanings stated in Section 7.1 hereof. An
Event of Default shall "exist" if an Event of Default shall have occurred and be
continuing.
"EXISTING FACILITY" means the manufacturing facilities (land,
buildings, other improvements, equipment, machinery, personal property and
fixtures) owned by the Board and leased to KINPAK and located on the real
property described in Exhibit A.
"FINANCING DOCUMENTS" shall mean this Mortgage, the Indentures, the
Lease Agreement, the Credit Agreement, the Security Agreement and the Revolving
Line of Credit Note.
"INDENTURES" shall mean, collectively, the 1997 Indenture and the 2002
Indenture.
"KINPAK" means KINPAK INC., an Alabama corporation, and its successors
and assigns.
"LEASE AGREEMENT" shall mean the Restated Lease Agreement dated as of
December 1, 1996, as amended and supplemented by First Supplemental Lease
Agreement dated as of March 1, 1997, and by Second Supplemental Lease Agreement
dated as of July 1, 2002, between KINPAK and the Board relating to the Project,
including any amendments or supplements to such instrument from time to time
entered into pursuant to the application provisions thereof.
"LETTER OF CREDIT" means the letter of credit with respect to the 2002
Bonds to be issued by the Bank in favor of the Trustee, as more fully described
in the Credit Agreement.
"LETTERS OF CREDIT" shall mean, collectively, the Letter of Credit and
the Substitute Letter.
"MORTGAGE" means this instrument as originally executed or as it may
from time to time be supplemented, modified or amended by one or more
instruments entered into pursuant to the applicable provisions hereof.
"MORTGAGED SITE" has the meaning stated in the first Granting Clause of
Article II.
"MORTGAGORS" means KINPAK and the Board.
"OBLIGATIONS" shall mean all indebtedness or obligations of the
Borrowers to the Bank under the Credit Agreement or secured by this Mortgage or
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the Security Agreement, including without limitation (i) the Borrowers'
obligation to reimburse the Bank for draws made under the Letters of Credit,
(ii) the Borrowers' obligation to pay fees and charges to the Bank for the
issuance and continuation of the Letters of Credit and (iii) the Borrowers'
obligations under the Revolving Line of Credit Note and all renewals and
extensions of any or all of the obligations of the Borrowers described herein
(including, without limitation, comparable obligations assumed or undertaken
with respect to any renewal or extension of, or any substitute for, the Letters
of Credit, whether or not any renewal or extension agreement is executed in
connection therewith).
"PERMITTED ENCUMBRANCES" means those restrictions, exceptions,
reservations, conditions, limitations, interests and other matters that are
identified in Exhibit B to this Mortgage.
"PERSONAL PROPERTY AND FIXTURES" has the meaning set forth in the
second Granting Clause of Article II.
"PROJECT" means collectively, the Existing Facility, the 2002
Improvements, the Project Equipment and the Additional Project Equipment.
"PROJECT EQUIPMENT" means (i) all items (whether or not fixtures) of
furniture, furnishings, fixtures, machinery, equipment or other personal
property the costs of which, in whole or in part, are paid by the Board out of
the proceeds of the Bonds and (ii) all items (whether or not fixtures) of
furniture, fixtures, machinery, equipment or other personal property at any time
installed in or about the Project that are acquired by the Board or the
Borrowers in substitution for or replacement of property theretofore
constituting part of the Project Equipment and that, under the provisions of the
Lease Agreement and the Indentures, are to constitute part of the Project
Equipment.
"REAL PROPERTY" means the real property, described on Exhibit A.
"RENTS" has the meaning stated in the fifth Granting Clause of Article
II.
"REVOLVING LINE OF CREDIT" has the meaning set forth in the Recitals
hereto.
"REVOLVING LINE OF CREDIT NOTE" means the Revolving Line of Credit Note
of even date herewith of the Borrowers in favor of the Bank evidencing the
Revolving Line of Credit.
"SECURITY AGREEMENT" means the Security Agreement of even date herewith
between the Borrowers and the Bank.
"SPECIAL FUNDS" means all funds and accounts established pursuant to
the Indentures.
"SUBLEASES" has the meaning stated in the fifth Granting Clause of
Article II.
"SUBSTITUTE LETTER" shall mean the letter of credit with respect to the
1997 Bonds issued by the Bank in favor of the Trustee.
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"TRUSTEE" shall mean Regions Bank, an Alabama banking corporation with
a principal place of business in Montgomery, Alabama, in its capacity as trustee
under the Indentures, and its successors and assigns.
"1997 BONDS" shall mean the $4,000,000 aggregate principal amount of
Industrial Refunding Revenue Bonds (KINPAK INC. Project) Series 1997 issued by
the Board pursuant to the 1997 Indenture.
"2002 BONDS" shall mean the $3,500,000 aggregate principal amount of
Industrial Development Revenue Bonds (KINPAK INC. Project) Series 2002 issued by
the Board pursuant to the 2002 Indenture.
"2002 IMPROVEMENTS" shall mean the approximately 70,000 square foot
addition to the Existing Facility and the additional machinery and equipment for
use therein to be purchased by the Board and financed by the proceeds of the
2002 Bonds.
"1997 INDENTURE" shall mean that certain Trust Indenture dated as of
December 1, 1996, as amended and supplemented by First Supplemental Trust
Indenture dated as of March 1, 1997, between the Board and the Trustee relating
to the 1997 Bonds, including any amendments or supplements to such instrument
from time to time entered into pursuant to the applicable provisions thereof.
"2002 INDENTURE" shall mean that certain Trust Indenture dated as of
July 1, 2002, between the Board and the Trustee relating to the 2002 Bonds,
including any amendments or supplements to such instrument from time to time
entered into pursuant to the applicable provisions thereof.
"1997 TRUSTEE" shall mean Regions Bank as trustee under the 1997
Indenture.
"2002 TRUSTEE" shall mean Regions Bank as trustee under the 2002
Indenture.
SECTION 1.2 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The article and
section headings herein and in the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 1.3 DATE OF MORTGAGE. The date of this Mortgage is intended as
and for a date for the convenient identification of this Mortgage and is not
intended to indicate that this Mortgage was executed and delivered on said date.
SECTION 1.4 SEPARABILITY CLAUSE. If any provision in this Mortgage
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.5 GOVERNING LAW. This Mortgage shall be construed in
accordance with and governed by the laws of the State of Alabama.
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SECTION 1.6 COUNTERPARTS. This instrument may be executed in any number
of counterparts, each of which so executed shall be deemed an original, but all
such counterparts shall together constitute but one and the same instrument.
ARTICLE II
GRANTING CLAUSES
The Mortgagors have bargained and sold and do hereby grant, bargain,
sell and convey to the Bank, its successors and assigns, the property and
interests in property, present and future, described in the following Granting
Clauses, and have granted and do hereby grant to the Bank a security interest in
said property and interests in property:
I
(MORTGAGED SITE AND BUILDINGS)
All right, title and interest, present and future in the real property
and interests therein described in Exhibit A attached hereto, together with all
easements, permits, licenses, rights-of-way, contracts, leases, tenements,
hereditaments, appurtenances, rights, privileges, options and immunities
pertaining or applicable to said real property and interests therein, together
with all buildings, structures and improvements now or hereafter located on such
real property (herein referred to as the "Mortgaged Site").
II
(PERSONAL PROPERTY AND FIXTURES)
The Personal Property and Fixtures and all other personal property and
fixtures (i) acquired or to be acquired by the Mortgagors with proceeds of the
Bonds or (ii) located on, in or about the Project in which the Board or KINPAK
have any interest, including all substitutions and replacements for such
personal property and fixtures and the proceeds thereof. As of the date hereof
the Personal Property and Fixtures includes, without limitation, the personal
property described on Exhibit C attached hereto.
III
(CONDEMNATION AWARDS AND INSURANCE PROCEEDS)
All awards or payments, including all interest thereon, together with
the right to receive the same, that may be made to the Mortgagors with respect
to the Collateral as a result of the exercise of the right of eminent domain,
any damage to or destruction of the Collateral or any part thereof, or any other
injury to or decrease in the value of the Collateral (herein referred to as
"Condemnation Awards"), and all right, title and interest of the Mortgagors in
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and to any policies of insurance (and the proceeds thereof) with respect to any
damage to or destruction of the Collateral.
IV
(SPECIAL FUNDS)
KINPAK's right, title and interest in and to money and investments from
time to time on deposit in, or forming a part of, the funds and accounts
established under the Indentures (herein referred to as the "Special Funds"),
subject to the prior lien of the Indentures with respect to the Special Funds
and the provisions of the Indentures permitting the application thereof for the
purposes and on the terms and conditions set forth therein.
V
(LEASES AND RENTS)
(a) All written or oral leases or other agreements for the use or
occupancy of all or any portion of the Collateral with respect to which KINPAK
is the lessor and any and all extensions and renewals thereof, now or hereafter
existing, (collectively referred to as the "Subleases");
(b) Any and all guaranties of performance by lessees under the
Subleases;
(c) The immediate and continuing right to collect and receive all the
rents, income, receipts, revenues, issues and profits now due or that may
hereafter become due or to which KINPAK may now be or may hereafter (including
during the period of redemption, if any) become entitled to demand or claim,
arising or issuing from or out of the Subleases or from or out of the minimum
rents, additional rents, percentage rents, common area maintenance charges,
parking charges, tax and insurance premium contributions, liquidated damages
upon default, the premium payable by any lessee upon the exercise of any
cancellation privilege provided for in any of the Subleases, and all proceeds
payable under any policy of insurance covering loss of rents resulting from
untentability caused by destruction or damage to the Collateral, together with
any and all rights and claims of any kind that KINPAK may have against any such
lessee under the Subleases or against any sublessees or occupants of the
Collateral [all such moneys, rights and claims described in this subparagraph
(c) being hereinafter referred to as the "Rents"]; provided, however, that so
long as no Event of Default has occurred under this Mortgage, KINPAK shall have
the right under a license granted hereby (but limited as provided in Section 8.7
below) to collect, receive and retain the Rents (but not prior to accrual
thereof); and
(d) Any award, dividend or other payment made hereafter to KINPAK in
any court procedure involving any of the lessees under the Subleases in any
bankruptcy, insolvency or reorganization proceeding in any state or federal
court and any and all payments made by lessees in lieu of rent, KINPAK hereby
appointing the Bank as its irrevocable attorney-in-fact to appear in any action
and collect any such award, dividend or other payment.
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VI
(OTHER PROPERTY)
Any and all other real or personal property of every kind and nature
from time to time hereafter by delivery or by writing of any kind conveyed,
mortgaged, pledged, assigned or transferred to the Bank as and for additional
security hereunder by KINPAK or the Board, or by anyone in the behalf of, or
with the written consent of, KINPAK or the Board.
VII
(REVENUES)
All revenues and receipts derived by the Board from the leasing or sale
of the Mortgaged Site or the Equipment, including, without limitation, all
right, title and interest of the Board in and to the Lease Agreement (not
including, however, the Board's rights to indemnification and reimbursement of
expenses); provided, however, that nothing contained in this clause shall
impair, diminish or otherwise affect the Board's obligations under the Lease
Agreement or impose any such obligations upon the Bank.
VIII
(LEASEHOLD ESTATE)
All right, title and interest of KINPAK in and to its leasehold estate
under the Lease Agreement, together with all rights, privileges and options set
forth therein, including, without limitation, its purchase option and all right,
title and interest of KINPAK upon the exercise of said option.
IX
(CONTRACT RIGHTS)
All right, title and interest of the Mortgagors in and to any plans and
specifications for the Project, together with all contracts or other rights
pertaining to the expansion, improvement and equipping of the Project.
All of the property described in the foregoing Granting Clauses I
through IX, inclusive, is herein sometimes together referred to as the
"Collateral."
TO HAVE AND TO HOLD the Collateral, together with all the rights,
privileges and appurtenances thereunto belonging, unto the Bank, its successors
and assigns, forever.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into the Credit Agreement and to issue the
Substitute Letter and the Letter of Credit and make available the Revolving Line
of Credit, the Mortgagors represent and warrant that:
(a) Valid Title, etc. The Board is lawfully seized of an indefeasible
estate in fee simple in and to, and has good title to, the Real Property and the
Project Equipment; KINPAK holds a valid leasehold estate in the Real Property
and the Project Equipment pursuant to the Lease Agreement and has good title to
the Additional Project Equipment; the Mortgagors have a good right to sell and
mortgage, and grant a security interest in, the Collateral; the Collateral is
subject to no liens, encumbrances or security interests other than Permitted
Encumbrances; and the Mortgagors will forever warrant and defend the title to
the Collateral unto the Bank against the claims of all persons whomsoever,
except those claiming under Permitted Encumbrances. It is expressly understood
and agreed that, with respect to the Special Funds only, the lien and security
interest created by this Mortgage is junior and subordinate to the lien and
security interest created by the Indentures.
(b) Maintenance of Lien Priority. The Mortgagors shall take all steps
necessary to preserve and protect the validity and priority of the liens on and
security interests in the Collateral created hereby. The Mortgagors shall
execute, acknowledge and deliver such additional instruments as the Bank may
deem necessary in order to preserve, protect, continue, extend or maintain the
lien and security interest created hereby as a lien on and security interest in
the Collateral subject only to Permitted Encumbrances, except as otherwise
permitted under the terms of this Mortgage. All costs and expenses incurred in
connection with the protection, preservation, continuation, extension or
maintaining of the liens and security interests hereby created shall be paid by
the Mortgagors.
(c) Toxic or Hazardous Substances. No toxic or hazardous substances
(including, without limitation, asbestos) have been located, stored or dumped on
the Mortgaged Site, or used in connection with, or in the construction or
operation of the Collateral, or any part thereof except in compliance with
applicable law.
ARTICLE IV
COVENANTS OF MORTGAGORS
SECTION 4.1 PAYMENT OF TAXES AND OTHER ASSESSMENTS. The Mortgagors will
pay or cause to be paid all taxes, assessments and other governmental, municipal
or other public dues, charges, fines or impositions imposed or levied upon the
Collateral or on the interests created by this Mortgage or with respect to the
filing of this Mortgage, and any tax or excise on rents or other tax, however
described, assessed or levied by any state, federal or local taxing authority as
a substitute, in whole or in part, for taxes assessed or imposed on the
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Collateral or on the lien and other interests created by this Mortgage, and at
least 10 days before said taxes, assessments and other governmental charges
become delinquent, the Mortgagors will deliver receipts therefor to the Bank or,
in the case of mortgage filing privilege taxes (if any), pay to the Bank an
amount equal to the taxes. The Mortgagors may, at their own expense, in good
faith contest any such taxes, assessments and other governmental charges and, in
the event of any such contest, may permit the taxes, assessments or other
governmental charges so contested to remain unpaid during the period of such
contest and any appeal therefrom, provided that during such period enforcement
of such contested items shall be effectively stayed. If any tax or assessment is
levied, assessed or imposed by any governmental authority on the Bank as a legal
holder of any of the Obligations or any interest in this Mortgage (other than
federal and state income taxes), then unless all such taxes and assessments are
paid by the Mortgagors promptly after they become due and payable, but in any
event before they become delinquent (and, in the opinion of counsel for the
Bank, such payment by the Mortgagors is lawful and does not place the Bank in
violation of any law), the Bank may, at its option, declare the existence of an
Event of Default under this Mortgage.
SECTION 4.2 INSURANCE. (a) The Mortgagors shall keep the Collateral
insured (or cause the Collateral to be kept insured) against loss or damage by
fire, windstorm, extended coverage perils, vandalism, malicious mischief and
such other hazards, casualties or other contingencies as from time to time may
be required by the Bank (including, but not limited to, builder's risk during
the period of construction of the expansion of the Project and business
interruption insurance), in such amounts, in such manner and in such companies
as the Bank may reasonably approve, including but not limited to all insurance
required to be maintained under the terms of the Financing Documents. All such
policies shall name the Bank as a named insured and provide that any losses
payable thereunder shall (pursuant to loss payable clauses, in form and content
acceptable to the Bank, to be attached to each policy) be payable to the Bank,
and provide that the insurance provided thereby, as to the interest of the Bank,
shall not be invalidated by any act or neglect of the Mortgagors, nor by the
commencement of any proceedings by or against the Mortgagors in bankruptcy,
insolvency, receivership or any other proceedings for the relief of a debtor,
nor by any foreclosure, repossession or other proceedings relating to the
property insured, nor by any occupation of such property or the use of such
property for purposes more hazardous than permitted in the policy. The
Mortgagors shall furnish to the Bank insurance certificates, in form and
substance satisfactory to the Bank, evidencing compliance by them with the terms
of this Section and, upon the request of the Bank at any time, the Mortgagors
shall furnish the Bank with photostatic copies of the policies required by the
terms of this Section. The Mortgagors will cause each insurer under each of the
policies to agree (either by endorsement upon such policy or by letter addressed
to the Bank) to give the Bank at least 30 days' prior written notice of the
cancellation of such policies in whole or in part or the lapse of any coverage
thereunder. The Mortgagors agree that they will not take any action or fail to
take any action which action or inaction would result in the invalidation of any
insurance policy required hereunder.
(b) If the Collateral or any part thereof is damaged or destroyed by
fire or other casualty, KINPAK shall, as promptly as practicable, comply with
the provisions of Section 6.17 of the Credit Agreement. The Board hereby consent
to the provisions of Section 6.17 and agrees to be bound by the terms thereof.
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SECTION 4.3 CONDEMNATION AWARDS. The entire proceeds of any
Condemnation Award shall be applied as provided in Section 6.18 of the Credit
Agreement. The Board and Properties hereby consent to the provisions of said
Section 6.18 and agree to be bound by the terms thereof.
SECTION 4.4 WASTE, DEMOLITION, ALTERATION OR REPLACEMENT. The
Mortgagors will cause the Collateral and every part thereof to be maintained,
preserved and kept in safe and good repair, working order and condition,
reasonable wear and tear excepted, will not commit or permit waste thereon, will
not remove, demolish or materially alter the design or structural character of
any building now or hereafter erected on the Mortgaged Site without the express
prior written consent of the Bank, will comply with all laws and regulations of
any governmental authority with reference to the Collateral and the manner and
use of the same, and will from time to time make all necessary and proper
repairs, renewals, additions and restorations thereto so that the value and
efficient use thereof shall be preserved and maintained.
SECTION 4.5 COMPLIANCE BY MORTGAGORS WITH TERMS OF OTHER FINANCING
DOCUMENTS. The Mortgagors shall comply, fully and faithfully, with all of their
respective obligations under the other Financing Documents. If the Mortgagors
fail or refuse to do so, the Bank may, but shall not be required to, perform any
and all of such obligations of the Mortgagors under the other Financing
Documents, including but not limited to the payment of any or all sums due from
the Mortgagors thereunder. Any sums so paid by the Bank shall constitute part of
the Obligations and shall be secured hereby.
ARTICLE V
TRANSFER OF, OR LIENS ON, COLLATERAL
The Mortgagors covenant and agree that they will not, without the
express prior written consent of the Bank, sell, transfer, convey or otherwise
dispose of, or create, or permit or suffer to exist, any lien, security interest
or other encumbrance (other than Permitted Encumbrances) on, all or any part of
the Collateral (including but not limited to any leases and rents) or any
interests therein, it being understood and agreed that a violation by the
Mortgagors of the provisions of this Article V shall constitute an Event of
Default under this Mortgage. Any sale, transfer, conveyance, other disposition
or act of creating, permitting or suffering to exist any lien, security interest
or other encumbrance in violation of this Article V shall be null, void and of
no effect.
ARTICLE VI
DEFEASANCE
If (i) the Mortgagors shall pay in full and discharge all the
Obligations; and (ii) the Mortgagors shall then have kept and performed each and
every obligation, covenant, duty, condition and agreement herein or in the
Credit Agreement and the Credit Facilities imposed on or agreed to by them; and
(iii) the Letters of Credit shall then be terminated; then this Mortgage and the
12
grants and conveyances contained herein shall become null and void, and the
Collateral shall revert to the Mortgagors, and the entire estate, right, title
and interest of the Bank shall thereupon cease; and the Bank shall, upon the
request of the Mortgagors and at the Mortgagors' cost and expense, deliver to
the Mortgagors proper instruments acknowledging satisfaction of this instrument
and terminating all financing statements filed in connection herewith;
otherwise, this Mortgage shall remain in full force and effect. Notwithstanding
anything to the contrary contained in this Article VI or elsewhere in this
Mortgage, it is expressly understood and agreed that, although there may be from
time to time occasions when no Obligations shall be outstanding, this Mortgage
and the lien hereof and security interests created thereby shall nevertheless
remain in full force and effect, and none of the estate, right, title and
interest of the Bank passing by this Mortgage shall divest nor shall the
Collateral revert to the Mortgagors so long as any one or more or all of the
following circumstances exist:
(a) the Bank has any obligation to issue the Letter of Credit;
or
(b) the Letters of Credit have been issued and are
outstanding; or
(c) any Obligations are outstanding or the Obligations have
been outstanding at any point during the previous 90 day period or any
payment of the Obligations is subject to being set aside under any
provision of the United States Bankruptcy Code or any statute or law
governing payments to creditors.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.1 EVENTS OF DEFAULT. Any one or more of the following shall
constitute an event of default (an "Event of Default") under this Mortgage
(whatever the reason for such event and whether it shall be voluntary or
involuntary, or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) an event of default under the Credit Agreement; or
(b) default in the performance, or breach, of any covenant,
condition or agreement on the part of the Mortgagors contained in
Section 4.1 or 4.2 or Article V hereof; or
(c) default in the performance, or breach, of any covenant or
warranty of the Mortgagors in this Mortgage (other than a covenant or
warranty, a default in the performance or breach of which is elsewhere
in this Section specifically dealt with), and the continuance of such
default or breach for a period of 30 days after there has been given,
by registered or certified mail, to the Mortgagors by the Bank a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "notice of default"
hereunder; or
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(d) the filing of a petition in bankruptcy (or other
commencement of a bankruptcy or similar proceeding) by or against any
of the Mortgagors under any applicable bankruptcy, insolvency,
reorganization, or similar law, now or hereafter in effect; or
(e) any representation or warranty made by the Mortgagors
herein or in any document, instrument or certificate furnished to the
Bank in connection with the issuance of the Letters of Credit or the
consummation of the transactions contemplated by the Financing
Documents shall at any time prove to have been false or incorrect in
any material respect as of the time made; or
(f) the occurrence of an event of default, as therein defined,
under any other Financing Document and the expiration of the applicable
grace period, if any, specified therein; or
(g) the rendering against the Borrowers, or any of them, of a
final judgment, decree or order for the payment of money in excess of
$250,000 and the continuance of such judgment, decree or order
unsatisfied and in effect for any period of 45 consecutive days without
a stay of execution; or
(h) the interest of the Bank in the Collateral shall become
endangered by reason of the enforcement of any prior lien or
encumbrance thereon (other than Permitted Encumbrances or the lien of
the Indenture with respect to the Special Funds); or
(i) the lien or security interest created by this Mortgage is
invalid or unenforceable as to any part of the Obligations or is
invalid or unenforceable as to any part of the Collateral.
ARTICLE VIII
RIGHTS OF BANK UPON DEFAULT
SECTION 8.1 ACCELERATION OF INDEBTEDNESS, ETC. If an Event of Default
exists, the Bank may notify the Trustee that an "Event of Default" under the
Credit Agreement (as therein defined) has occurred and is continuing (it being
understood that the occurrence of an Event of Default hereunder shall constitute
an "Event of Default" under the Credit Agreement) and may, by notice to the
Mortgagors, effective upon dispatch, declare all of the Obligations, including
but not limited to the obligation of the Mortgagors to reimburse the Bank under
the Credit Agreement, to be forthwith due and payable, whereupon all the
Obligations shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Mortgagors, and the Bank may immediately enforce payment of all
such amounts and exercise any or all of its rights and remedies under this
Mortgage and the Credit Agreement.
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SECTION 8.2 OPERATION OF COLLATERAL BY BANK. In addition to all other
rights herein and in the Credit Agreement conferred on the Bank, if an Event of
Default exists, the Bank (or any person, firm or corporation designated by the
Bank) may, but shall not be obligated to, enter upon and take possession of any
or all of the Collateral, exclude the Mortgagors therefrom, and hold, use,
administer, manage and operate the same to the extent that the Mortgagors could
do so, without any liability to the Mortgagors resulting therefrom; and the Bank
may collect, receive and receipt for all proceeds accruing from such operation
and management, make repairs and purchase needed additional property, and
exercise every power, right and privilege of the Mortgagors with respect to the
Collateral.
SECTION 8.3 JUDICIAL PROCEEDINGS; RIGHT TO RECEIVER. If an Event of
Default exists, the Bank, in lieu of or in addition to exercising the power of
sale hereinafter given, may proceed by suit for a foreclosure of its lien on and
security interest in the Collateral, to sue the Mortgagors for damages on
account of or arising out of said default or breach, or to sue the Mortgagors
for specific performance of any provision contained herein, or to enforce any
other appropriate legal or equitable right or remedy, whether under this
Mortgage, the Credit Agreement or otherwise. The Bank shall be entitled, as a
matter of right, upon bill filed or other proper legal proceedings being
commenced for the foreclosure of this Mortgage, to the appointment by any
competent court or tribunal, without notice to the Mortgagors or any other
party, of a receiver of the rents, issues and profits of the Collateral, with
power to lease and control the Collateral and with such other powers as may be
deemed necessary, subject to the rights of the Trustee under the Indenture.
SECTION 8.4 FORECLOSURE SALE. This Mortgage shall be subject to
foreclosure and may be foreclosed as now provided by law in case of past due
mortgages, and the Bank shall be authorized, at its option, whether or not
possession of the Collateral is taken, after giving 21 days notice by
publication once a week for three consecutive weeks of the time, place and terms
of each such sale by publication in some newspaper published in Montgomery
County, Alabama, to sell the Collateral (or such part or parts thereof as the
Bank may from time to time elect to sell) in front of the courthouse door of
such county, at public outcry, to the highest bidder for cash. The Bank, its
successors and assigns, may bid at any sale or sales had under the terms of this
Mortgage and may purchase the Collateral, or any part thereof, if the highest
bidder therefor. The purchaser at any such sale or sales shall be under no
obligation to see to the proper application of the purchase money. At any
foreclosure sale any part or all of the Collateral, real, personal or mixed, may
be offered for sale in parcels or en masse for one total price, the proceeds of
any such sale en masse to be accounted for in one account without distinction
between the items included therein or without assigning to them any proportion
of such proceeds, the Mortgagors hereby waiving the application of any doctrine
of marshalling or like proceeding. If the Bank, in the exercise of the power of
sale herein given, elects to sell the Collateral in parts or parcels, sales
thereof may be held from time to time, and the power of sale granted herein
shall not be fully exercised until all of the Collateral not previously sold
shall have been sold or all the Obligations shall have been paid in full. The
Mortgagors hereby waive any equitable rights otherwise available to any of them
with respect to marshalling of assets hereunder.
SECTION 8.5 PERSONAL PROPERTY AND FIXTURES. (a) The Bank shall have and
may exercise with respect to any or all of the Personal Property and Fixtures
15
all rights, remedies and powers of a secured party under the Alabama Uniform
Commercial Code with reference to the Personal Property and Fixtures or any
other items in which a security interest has been granted herein, including,
without limitation, the right and power to sell at public or private sale or
sales or otherwise dispose of, lease or utilize the Personal Property and
Fixtures and any part or parts thereof in any manner, to the fullest extent
authorized or permitted under the Alabama Uniform Commercial Code after default
hereunder, without regard to preservation of the Personal Property and Fixtures
or its value and without the necessity of a court order. The Bank shall have,
among other rights, the right to take possession of the Personal Property and
Fixtures and to enter upon any premises where the same may be situated for the
purpose of repossessing the same without being guilty of trespass and without
liability for damages occasioned thereby and to take any action deemed
appropriate or desirable by the Bank, at its option and in its sole discretion,
to repair, restore or otherwise prepare the Personal Property and Fixtures for
sale or lease or other use or disposition. To the extent permitted by law, the
Mortgagors expressly waive any notice of sale or any other disposition of the
Personal Property and Fixtures and any rights or remedies of the Bank with
respect to, and the formalities prescribed by law relative to, the sale or
disposition of the Personal Property and Fixtures or to the exercise of any
other right or remedy of the Bank existing after default. To the extent that
such notice is required and cannot be waived, the Mortgagors agree that if such
notice is given to the Mortgagors in accordance with the provisions of Section
9.8 hereof at least 5 days before the time of the sale or other disposition,
such notice shall be deemed reasonable and shall fully satisfy any requirement
for giving said notice.
(b) The Mortgagors agree that the Bank may sell or dispose of the
Personal Property and Fixtures in accordance with the rights and remedies
granted under this Mortgage with respect to the real property covered hereby.
The Mortgagors hereby grant to the Bank the right, at its option after default
by the Mortgagors, to transfer at any time to itself or its nominee the Personal
Property and Fixtures or any part thereof and to receive the moneys, income,
proceeds and benefits attributable to the same and to hold the same as
additional Collateral or to apply it on the Obligations in such order and manner
as the Bank may elect. The Mortgagors covenant and agree that all recitals in
any instrument transferring, assigning, leasing or making other disposition of
the Personal Property and Fixtures or any part thereof shall be full proof of
the matters stated therein, and no other proof shall be required to establish
the legal propriety of the sale or other action taken by the Bank and that all
prerequisites of sale shall be presumed conclusively to have been performed or
to have occurred.
SECTION 8.6 CONVEYANCE AFTER SALE. The Mortgagors hereby authorize and
empower the Bank or the auctioneer at any foreclosure sale had hereunder, for
and in the name of the Mortgagors, to execute and deliver to the purchaser or
purchasers of any of the Collateral sold at foreclosure good and sufficient
deeds of conveyance or bills of sale thereto.
SECTION 8.7 RENTS AND SUBLEASES. (a) If an Event of Default exists, the
Bank, at its option, shall have the right, power and authority to exercise and
enforce any or all of the following rights and remedies with respect to Rents
and Subleases:
(i) to terminate the license granted to the Mortgagors in
Article II hereof to collect the Rents and, without taking possession,
16
in the Bank's own name to demand, collect, receive, sue for, attach and
levy the Rents, to give proper receipts, releases and acquittances
therefor and, after deducting all necessary and reasonable costs and
expenses of collection, including reasonable attorney's fees, to apply
the net proceeds thereof to the Obligations in such order and amounts
as the Bank may choose (or hold the same in a reserve as security for
the Obligations);
(ii) without regard to the adequacy of the security, with or
without any action or proceeding, through any person or by agent, or by
a receiver to be appointed by court, to enter upon, take possession of,
manage and operate the Collateral or any part thereof for the account
of the Mortgagors, make, modify, enforce, cancel or accept surrender of
any Sublease, remove and evict any lessee, increase or reduce rents,
decorate, clean and make repairs, and otherwise do any act or incur any
costs or expenses the Bank shall deem proper to protect the security
hereof, as fully and to the same extent as the Mortgagors could do if
in possession, and in such event to apply any funds so collected to the
operation and management of the Collateral (including payment of
reasonable management, brokerage and attorney's fees) and payment of
the Obligations in such order and amounts as the Bank may choose (or
hold the same in reserve as security for the Obligations);
(iii) to take whatever legal proceedings may appear necessary
or desirable to enforce any obligation, covenant or agreement of the
Mortgagors under this Mortgage.
(b) The collection of the Rents and application thereof (or holding
thereof in reserve) as aforesaid or the entry upon and taking possession of the
Collateral, or both, shall not cure or waive any default or waive, modify or
affect any notice of default under this Mortgage, or invalidate any act done
pursuant to such notice, and the enforcement of such right or remedy by the
Bank, once exercised, shall continue for so long as the Bank shall elect,
notwithstanding that the collection and application aforesaid of the Rents may
have cured the original default. If the Bank shall thereafter elect to
discontinue the exercise of any such right or remedy, the same or any other
right or remedy hereunder may be reasserted at any time and from time to time
following any subsequent default.
SECTION 8.8 APPLICATION OF PROCEEDS. All payments then held or
thereafter received by the Bank as proceeds of the Collateral, as well as any
and all amounts realized by the Bank in connection with the enforcement of any
right or remedy under or with respect to this Mortgage, shall be applied by the
Bank as follows:
(a) to reimburse the Bank for any payments made by the Bank
under the Letters of Credit, to sums due the Bank under the Revolving
Line of Credit Note, to accrued but unpaid commissions, fees, costs and
charges under the Credit Agreement, and to the payment of all costs and
expenses of any kind then or thereafter at any time reasonably incurred
by the Bank in exercising its rights under this Mortgage and under the
17
Credit Agreement or otherwise reasonably incurred by the Bank in
collecting or enforcing payment of the Obligations, as well as to the
payment of any other amount then or thereafter at any time owing by the
Mortgagors to the Bank under the Credit Agreement or under this
Mortgage, all in such priority as among such principal, interest,
costs, fees, expenses and other amounts as the Bank shall elect;
(b) any balance remaining after payment in full of all amounts
referred to in subparagraph (a) above shall be applied by the Bank to
any other Obligations or sums then owing by the Mortgagors to the Bank;
(c) any balance remaining after payment in full of all amounts
referred to in subparagraphs (a) and (b) above shall be held by the
Bank as a cash collateral reserve against the making of any payment
under the Letters of Credit (if then outstanding); and
(d) any balance remaining after payment in full of all amounts
referred to in subparagraphs (a), (b) and (c) above shall be paid by
the Bank to the Mortgagors or to whoever else may then be legally
entitled thereto.
SECTION 8.9 MULTIPLE SALES. The Bank shall have the option to proceed
with foreclosure, either through the courts or by proceeding with foreclosure as
provided for in this Mortgage, but without declaring all of the Obligations due.
Any such sale may be made subject to the unmatured part of the Obligations, and
such sale, if so made, shall not in any manner affect the unmatured part of the
Obligations, but as to such unmatured part of the Obligations this Mortgage
shall remain in full force and effect as though no sale had been made under the
provisions of this Section. Several sales may be made under the provisions of
this Section without exhausting the right of sale for any remaining part of the
Obligations whether then matured or unmatured, the purpose hereof being to
provide for a foreclosure and sale of the Collateral for any matured part of the
Obligations without exhausting any power of foreclosure and the power to sell
the Collateral for any other part of the Obligations, whether matured at the
time or subsequently maturing.
SECTION 8.10 WAIVER OF APPRAISEMENT LAWS. The Mortgagors waive, to the
fullest extent permitted by law, the benefit of all laws now existing or
hereafter enacted providing for (i) any appraisement before sale of any portion
of the Collateral (commonly known as appraisement laws) or (ii) any extension of
time for the enforcement of the collection of the Obligations or any creation or
extension of a period of redemption from any sale made in collecting the
Obligations (commonly known as stay laws and redemption laws).
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1 WAIVER, ELECTION, ETC. The exercise by the Bank of any
option given under the terms of this Mortgage shall not be considered as a
waiver of the right to exercise any other option given herein, and the filing of
18
a suit to foreclose the lien and security interest granted by this Mortgage,
either on any matured portion of the Obligations or for the whole of the
Obligations, shall not be considered an election so as to preclude foreclosure
under power of sale after a dismissal of the suit; nor shall the publication of
notices for foreclosure preclude the prosecution of a later suit thereon. No
failure or delay on the part of the Bank in exercising any right, power or
remedy under this Mortgage shall operate as a waiver thereof, not shall any
single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy
hereunder or thereunder. The remedies provided in this Mortgage and in the
Credit Agreement are cumulative and not exclusive of any remedies provided by
law. No amendment, modification, termination or waiver of any provisions of this
Mortgage or the Credit Agreement, nor consent to any departure by the Mortgagors
therefrom, shall be effective unless the same shall be in writing and signed by
any person having the office of Senior Vice President or higher of the Bank, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given. No notice to or demand on the
Mortgagors in any case shall entitle the Mortgagors to any other or further
notice or demand in similar or other circumstances.
SECTION 9.2 LANDLORD-TENANT RELATIONSHIP. Any sale of the Collateral
under this Mortgage shall, without further notice, create the relationship of
landlord and tenant at sufferance between the purchaser and the Mortgagors.
SECTION 9.3 ENFORCEABILITY. If any provision of this Mortgage is now or
at any time hereafter becomes invalid or unenforceable, the other provisions
hereof shall remain in full force and effect, and the remaining provisions
hereof shall be construed in favor of the Bank to effectuate the provisions
hereof.
SECTION 9.4 APPLICATION OF PAYMENTS. If the lien or the security
interest created by this Mortgage is invalid or unenforceable as to any part of
the Obligations or is invalid or unenforceable as to any part of the Collateral,
the unsecured or partially secured portion of the Obligations shall be
completely paid prior to the payment of the remaining and secured or partially
secured portion of the Obligations, and all payments made on the Obligations,
whether voluntary or under foreclosure or other enforcement action or
procedures, shall be considered to have been first paid on and applied to the
full payment of that portion of the Obligations that is not secured or not fully
secured by the lien or security interest created hereby.
SECTION 9.5 ADVANCES BY BANK. If the Mortgagors shall fail to comply
with the provisions hereof with respect to the securing of insurance, the
payment of taxes, assessments and other charges, the keeping of the Collateral
in repair, or any other term or covenant herein contained, the Bank may (but
shall not be required to) make advances to perform the same, and where necessary
enter or take possession of the Collateral for the purpose of performing any
such term or covenant. The Mortgagors agree to repay all sums advanced upon
demand, with interest from the date such advances are made, at the rate provided
in Section 2.6 of the Credit Agreement (to the fullest extent permitted by
applicable law), and all sums so advanced, with interest, shall be secured
hereby.
SECTION 9.6 RELEASE OR EXTENSION BY BANK. The Bank, without notice, may
release any part of the Collateral or any person liable for the Obligations
19
without in any way affecting the rights of the Bank hereunder as to any part of
the Collateral not expressly released and may agree with any party with an
interest in the Collateral to extend the time for payment of all or any part of
the Obligations or to waive the prompt and full performance of any term,
condition or covenant of this Mortgage or the Credit Agreement.
SECTION 9.7 PARTIAL PAYMENTS. Acceptance by the Bank of any payment of
less than the amount due on the Obligations shall be deemed acceptance on
account only, and the failure of the Mortgagors to pay the entire amount then
due shall be and continue to constitute an Event of Default, and at any time
thereafter and until the entire amount due on the Obligations has been paid, the
Bank shall be entitled to exercise all rights conferred on it by the terms of
this Mortgage in case of the existence of an Event of Default.
SECTION 9.8 ADDRESSES FOR NOTICES. (a) Any request, demand,
authorization, direction, notice, consent or other document provided or
permitted by this Mortgage to be made upon, given or furnished to, or filed
with, the Mortgagors or the Bank shall be sufficient for every purpose hereunder
if in writing and (except as otherwise provided in this Mortgage) either (i)
delivered personally to the party or, if such party is not an individual, to an
officer, partner or other legal representative of the party to whom the same is
directed, or (ii) mailed by certified mail, postage prepaid and addressed as
follows:
(i) if to the Board at P. O. Box 79, Montgomery, Alabama
36101;
(ii) if to KINPAK at c/o Ocean Bio-Chem, Inc., 4041 S.W. 47th
Avenue, Ft. Lauderdale, Florida, 33314, Attention: Edward Anchel;
(iii) if to the Bank, at 8 Commerce Street, Montgomery,
Alabama 36104, Attention: Timothy D. Riley.
The Board, KINPAK and the Bank may specify a different address for the receipt
of such documents by mail by giving notice of the change in address to the other
parties identified in this subsection.
(b) Any such notice or other document shall be deemed to be received
(i) as of the date delivered, if delivered personally in accordance with
subsection (a) of this Section, or (ii) as of 3 days after the date deposited in
the mail, if mailed in accordance with subsection (a) of this Section.
SECTION 9.9 CONSTRUCTION OF MORTGAGE. This Mortgage may be construed as
a mortgage, chattel mortgage, conveyance, assignment, security agreement,
pledge, financing statement, hypothecation or contract, or any one or more of
them in order fully to effectuate the lien hereof and security interest created
hereby and the purposes and agreements herein set forth.
SECTION 9.10 MORTGAGE TO CONSTITUTE SECURITY AGREEMENT. This Mortgage
shall constitute a security agreement under the Alabama Uniform Commercial Code
to the extent that such Code is applicable to the creation of a security
interest in the Collateral or parts thereof.
20
SECTION 9.11 APPLICABLE ENVIRONMENTAL LAW COVENANT. As used herein, the
term "Applicable Environmental Law" means any statutory law or case law
pertaining to health or the environment, or petroleum products, or oil
substances, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), as codified at 42
U.S.C. ss. 9601 et seq. (1982), and the Hazardous Wastes Management Act of 1978,
as codified at Ala. Code ss.ss. 22-30-1 et seq. (1984 and Supp. 1986); the terms
"hazardous substance" and "release" have the meanings specified in CERCLA;
provided, in the event CERCLA is amended to broaden the meaning of any term
defined thereby, such broader meaning shall apply subsequent to the effective
date of such amendment; and provided, to the extent that the laws of the State
of Alabama establish a meaning of "hazardous substance" or "release" which is
broader than that specified in CERCLA, such broader meaning shall apply. KINPAK
represents and warrants to the Bank that the Mortgaged Site, and KINPAK are not
in violation of or subject to any existing, pending or threatened investigation
or inquiry by any governmental authority or any response costs or remedial
obligations under any Applicable Environmental Law, and this representation and
warranty would continue to be true and correct following disclosure to the
applicable governmental authorities of all relevant facts, conditions and
circumstances, if any, pertaining to the Mortgaged Site; that KINPAK has not
obtained and is not required to obtain any permits, licenses or similar
authorizations to construct, occupy, operate or use any buildings, improvements,
fixtures or equipment forming a part of the Mortgaged Site by reason of any
Applicable Environmental Law; that KINPAK has taken all steps necessary to
determine and have determined that no petroleum products, oil or hazardous
substances have been disposed of or released on the Mortgaged Site; and that the
use which KINPAK has made, makes or intend to make of the Mortgaged Site will
not result in the location on or disposal or other release of any petroleum
products, oil or hazardous substances on or to the Mortgaged Site. KINPAK and
Properties hereby agree to pay any fines, charges, fees, expenses, damages,
losses, liabilities and response costs arising from or pertaining to the
application of any such Applicable Environmental Laws to the Mortgaged Site.
KINPAK may, however, upon first furnishing to the Bank such security as shall be
reasonably satisfactory to the Bank for the payment of all such fines, charges,
fees, expenses, damages, losses, liabilities and response costs and expenses
which may be incurred in pursuing any contest of such fines, charges, fees,
expenses, damages, losses, liabilities and response costs, in good faith
contest, at KINPAK's expense, the validity of any such fines, charges, fees,
expenses, damages, losses, liabilities or response costs provided that KINPAK
pursues any such contest with diligence and pays any such fines, charges, fees,
expenses, damages, losses, liabilities and response costs promptly upon final
resolution of such contest. KINPAK further agrees to indemnify and forever save
the Bank harmless from any and all judgments, fines, charges, fees, expenses,
damages, losses, liabilities, response costs and attorney's fees and expenses
arising from the application of any such Applicable Environmental Law to the
Mortgaged Site or the Bank; and this indemnity shall survive any repayment or
foreclosure of this Mortgage or the taking by the Bank of a deed in lieu of
foreclosure but only as to any state of facts existing as of or prior to the
date of such repayment or foreclosure of this Mortgage or taking by the Bank of
a deed in lieu of foreclosure. KINPAK agrees to notify the Bank in the event
that any governmental agency or other entity notifies KINPAK that it may not be
in compliance with any Applicable Environmental Law. KINPAK agrees to permit the
Bank to have access to the Mortgaged Site at all reasonable times in order to
conduct, at the Bank's expense, any tests which the Bank deems necessary to
21
ensure that KINPAK and the Mortgaged Site are in compliance with all Applicable
Environmental Laws.
SECTION 9.12 LIMITED LIABILITY OF BOARD. No provision hereof shall be
construed to impose a charge against the general credit of the Board or any
personal or pecuniary liability upon the Board or give rise to or impose a lien
or charge upon any of its property other than its interest in the Collateral.
All obligations incurred by the Board hereunder are payable solely from the
revenues and receipts to be derived from any leasing or sale of the Project or
the Mortgaged Site or any of the other Collateral, including insurance proceeds
and condemnation awards. The City of Montgomery is not liable for the
performance of any pledge, mortgage, obligation or agreement of any kind
whatsoever which is undertaken by the Board. No agreement of the Board shall be
construed to constitute an indebtedness of the City of Montgomery within the
meaning of any constitutional or statutory provision whatsoever. Further, none
of the directors, officers, employees or agents of the Board shall have any
personal or pecuniary liability whatsoever hereunder or any liability for the
breach by the Board of any of the agreements on its part herein contained.
22
IN WITNESS WHEREOF, the Mortgagors have caused this instrument to be
duly executed as of the year and day first above written.
KINPAK INC.
(SEAL)
By /s/ Peter G. Dornau
-----------------------
Its President
ATTEST:
/s/ Ed Anchel
- -----------------------
Its Secretary
STATE OF Alabama )
:
Montgomery COUNTY )
I, the undersigned authority, a Notary Public in and for said County in
said State, hereby certify that Peter G. Dornau, whose name as President
of KINPAK Inc., an Alabama 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 the 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 seal, this 26 day of July, 2002.
/s/ Roy S. Goldfinger
--------------------------------------
Notary Public
(SEAL)
My Commission Expires:May 12, 2005
23
THE INDUSTRIAL DEVELOPMENT BOARD
OF THE CITY OF MONTGOMERY
(SEAL)
By /s/ F. Berry Grant
---------------------------------
Its Vice Chairman
ATTEST:
/s/ [Illegible]
- ------------------------------------
Its Secretary or Assistant Secretary
STATE OF ALABAMA )
:
MONTGOMERY COUNTY )
I, the undersigned authority, a Notary Public in and for said County in
said State, hereby certify that F. Berry Grant, whose name as
Vice Chairman of The Industrial Development Board of the City of
Montgomery, an Alabama public 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 the said instrument, he, as such officer and with full
authority, executed the same voluntarily for and as the act of said public
corporation.
GIVEN under my hand and seal this 22 day of July, 2002.
/s/ Roy S. Goldfinger
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Notary Public
(SEAL)
My Commission Expires:May 18, 2005
24
EXHIBIT A
TO
MORTGAGE, ASSIGNMENT OF LEASES
AND SECURITY AGREEMENT
Real Property Description
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Lot 3-3A-1, according to the Map of a Replat of Lot 3-3A, Gunter Industrial
Park, which said Replat appears of record in Plat Book 29 at Page 150 in the
Office of the Judge of Probate of Montgomery County, Alabama, being a Replat of
Lot 3-3 of Gunter Industrial Park Plat 3 and Lot 3-4B of the Replat of Lot 3-4
of Gunter Industrial Park Plat 3, lying in Section 2, Township 16 North, Range
18 East, and Section 35, Township 17 North, Range 18 East, Montgomery County,
Alabama.
EXHIBIT B
TO
MORTGAGE, ASSIGNMENT OF LEASES
AND SECURITY AGREEMENT
Permitted Encumbrances
----------------------
Exceptions shown on Schedule B-Section 2 of Commitment for Title Insurance
Commitment No. 29517-5 dated July 15, 2002, issued by Lawyers Title Insurance
Corporation.
EXHIBIT C
TO
MORTGAGE, ASSIGNMENT OF LEASES
AND SECURITY AGREEMENT
Equipment
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