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OPEN-END MORTGAGE, SECURITY AGREEMENT, FIXTURE FILING, AND ASSIGNMENT OF LEASES AND RENTS
This Open-End Mortgage, Security Agreement, Fixture Filing and Assignment of Leases and Rents (this "Mortgage") is executed as of February _10_, 2010, by WESTWAY TERMINAL CINCINNATI LLC, a Delaware limited liability company ("Mortgagor"), whose address for notice hereunder is 365 Canal Street, Suite 2900, New Orleans, LA 70130, for the benefit of JPMorgan Chase Bank, N.A., as administrative agent for the Lenders, a national banking association ("Mortgagee"), whose address for notice is 10 South Dearborn, 7th Floor, Chicago, IL 60603.
WHEREAS, Mortgagor is the owner of certain Realty (as defined below);
WHEREAS, the Mortgagor will derive substantial direct and indirect economic and other benefits under that certain Credit Agreement, dated effective as of November 16, 2009 (as amended, modified, supplemented or restated from time to time, the "Credit Agreement"), among the Westway Group, Inc. ("Borrower"), on the one hand, and Mortgagee (as Administrative Agent and Syndication Agent for Lenders) and Lenders, on the other hand;
WHEREAS, among other conditions precedent, it is a condition precedent to the making of the loans and the extensions of credit under the Credit Agreement that the Mortgagor execute this Mortgage in order to, among other things, grant to Mortgagee a first mortgage lien on Mortgagor's interest in the Realty and certain other property of Mortgagor, as more particularly set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Mortgagor and Mortgagee hereby agree as follows:
DEFINITIONS- Definitions. As used herein, the following terms shall have the following meanings:
- "Governmental Requirement": Shall be as defined in the Credit Agreement.
- "Indemnitee": Shall be as defined in the Credit Agreement.
- "Indebtedness": The sum of all all principal, interest and other amounts due under or secured by the Loan Documents, all principal, interest, and other amounts which may hereafter be loaned by Lenders, their successors or assigns, to or for the benefit of Borrower or the other Loan Parties, when evidenced by a promissory note or other instrument which, by its terms, is secured hereby, and all other indebtedness, obligations and liabilities now or hereafter existing of any kind of the Loan Parties to Lenders under documents which provide, directly or indirectly, that they are intended to be secured by this Mortgage.
- "Land": The real estate or interest therein described in Exhibit A attached hereto, and where the context permits or requires, all Improvements and Fixtures, and all rights, titles and interests appurtenant thereto.
- "Loan Documents": Shall have the meaning ascribed to such term in the Credit Agreement.
- "Mortgaged Property": All estate, right, title, interest, claim and demand whatsoever which Mortgagor now has or hereafter acquires, either in law or in equity, in possession or expectancy, of, in and to: the Realty, all buildings, structures and other improvements, now or at any time situated, placed or constructed upon the Land (the "Improvements"), all materials, supplies, appliances, equipment (as such term is defined in the UCC), apparatus and other items of personal property now owned or hereafter attached to, installed in or used in connection with any of the Improvements or the Land, and water, gas, electrical, storm and sanitary sewer facilities and all other utilities whether or not situated in easements (the "Fixtures"), all goods, inventory, accounts, general intangibles, software, instruments, letters of credit, letter of credit rights, deposit accounts, documents, chattel paper and supporting obligations, as each such term is presently or hereafter defined in the UCC, and all other personal property of any kind or character, now or hereafter affixed to, placed upon, used in connection with, arising from or otherwise related to the Land and Improvements or which may be used in or relating to the planning, development, financing or operation of the Mortgaged Property, including, without limitation, furniture, furnishings, equipment, machinery, money, insurance proceeds, accounts, contract rights, software, trademarks, goodwill, promissory notes, electronic and tangible chattel paper, payment intangibles, documents, trade names, licenses and/or franchise agreements, rights of Mortgagor under leases of Fixtures or other personal property or equipment, inventory, all refundable, returnable or reimbursable fees, deposits or other funds or evidences of credit or indebtedness deposited by or on behalf of Mortgagor with any governmental authorities, boards, corporations, providers of utility services, public or private, including specifically, but without limitation, all refundable, returnable or reimbursable tap fees, utility deposits, commitment fees and development costs, and commercial tort claims arising from the development, construction, use, occupancy, operation, maintenance, enjoyment, acquisition or ownership of the Mortgaged Property (the "Personalty"), all reserves, escrows or impounds required under the Credit Agreement and all deposit accounts (including accounts holding security deposits) maintained by Mortgagor with respect to the Mortgaged Property, all plans, specifications, shop drawings and other technical descriptions prepared for construction, repair or alteration of the Improvements, and all amendments and modifications thereof (the "Plans"), all leases, subleases, licenses, concessions, occupancy agreements or other agreements (written or oral, now or at any time in effect) which grant a possessory interest in, or the right to use, all or any part of the Mortgaged Property, together with all related security and other deposits (the "Leases"), all of the rents, revenues, income, proceeds, profits, security and other types of deposits, lease cancellation payments and other benefits paid or payable by parties to the Leases other than Mortgagor for using, leasing, licensing, possessing, operating from, residing in, selling, terminating the occupancy of or otherwise enjoying the Mortgaged Property (the "Rents"), all other agreements, such as construction contracts, architects' agreements, engineers' contracts, utility contracts, maintenance agreements, management agreements, service contracts, permits, licenses, certificates and entitlements in any way relating to the development, construction, use, occupancy, operation, maintenance, enjoyment, acquisition or ownership of the Mortgaged Property (the "Property Agreements"), all rights, privileges, tenements, hereditaments, rights of way, easements, appendages and appurtenances appertaining to the foregoing, and all right, title and interest, if any, of Mortgagor in and to any streets, ways, alleys, strips or gores of land adjoining the Land or any part thereof, all accessions, replacements and substitutions for any of the foregoing and all proceeds thereof, all insurance policies (regardless of whether required by Mortgagee), unearned premiums therefor and proceeds from such policies covering any of the above property now or hereafter acquired by Mortgagor, and any awards, remunerations, reimbursements, settlements or compensation heretofore made or hereafter to be made by any governmental authority pertaining to the Realty, Improvements, Fixtures or Personalty. As used in this Mortgage, the term "Mortgaged Property" shall mean all or, where the context permits or requires, any portion of the above or any interest therein, wherever located. Notwithstanding anything herein to the contrary, in no event shall the Mortgaged Property include, and Mortgagor shall not be deemed to have granted a security interest in, any of Mortgagor's right, title or interest (a) in any contracts, instruments, licenses or other agreements, as to which the grant of a security interest therein would (i) constitute a violation of a valid and enforceable restriction in favor of a third party on such grant, unless and until any required consents shall have been obtained or (ii) give any other party to such contract, instrument, license or other agreement the right to terminate its obligations thereunder in any asset, or (b) the granting of a security interest in which would be void, voidable or illegal under any applicable Governmental Requirement, that would result in, or permit the termination of the right, title or interest of Mortgagor in or to such asset; provided that any of the foregoing exclusions set forth in clause (a) or (b) above shall not apply if (x) such prohibition has been waived or such other party has otherwise consented to the creation hereunder of a security interest in such asset or (y) such prohibition would be rendered ineffective pursuant to Section 9-406, 9-407 or 9-408 of Article 9 of the UCC or any other Governmental Requirement; and provided further that immediately upon the ineffectiveness, lapse or termination of any such provision, Mortgagor shall be deemed to have granted a security interest in all its rights, title and interests in and to such contract or agreement.
- "Obligations": All of the agreements, covenants, conditions, warranties, representations and other obligations (other than to repay the Indebtedness) made or undertaken by the Loan Parties or any other person or entity to Mortgagee, Lenders, or others as set forth in the Loan Documents.
- Organizational Documents: Mortgagor's present or subsequently effective articles or certificate of incorporation, articles or certificate or organization or formation, bylaws, regulations, or partnership, limited partnership, limited liability company, joint venture, trust or other form of business association agreement, as the case may be.
- "Permitted Encumbrances": Shall mean Excepted Liens (as that term is defined in the Credit Agreement).
- "Proceeds": So much of the proceeds of insurance or condemnation awards as remains after payment of all expenses, costs, and taxes, including reasonable attorney's fees and extraordinary expenses, incurred in obtaining such proceeds or award; provided, however, that this term does not include proceeds from business interruption insurance.
- "Realty" means (a) all of the fee interests, easements, rights-of-way, servitudes, and other interests in and to the Land, (b) all present and future real property acquired for use in connection with such properties, and (c) all present and future tenements, hereditaments, privileges, easements, franchises, rights, appendages, and appurtenances belonging or in any way appertaining to any and all such properties.
- "UCC": The Uniform Commercial Code as enacted and in effect in the state where the Land is located (and as it may from time to time be amended); provided that, to the extent that the UCC is used to define any term herein or in any other Loan Documents and such term is defined differently in different Articles or Divisions of the UCC, the definition of such term contained in Article or Division 9 shall govern; provided further, however, that if, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of, or remedies with respect to, any security interest herein granted is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the state where the Land is located, the term "UCC" shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for the purposes of the provisions thereof relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions.
All initially capitalized, undefined terms used in this Mortgage shall have the meanings ascribed to such terms in the Credit Agreement.
GRANT
TO HAVE AND TO HOLD the Mortgaged Property, together with the rights, privileges and appurtenances thereto belonging, unto Mortgagee and its successors and assigns forever, Mortgagor does hereby bind itself, its successors and assigns to WARRANT AND FOREVER DEFEND the title to the Mortgaged Property unto Mortgagee and its successors and assigns against the claim or claims of all persons claiming or to claim the same or any part thereof, subject to the Permitted Encumbrances; provided, however, that if the Loan Parties shall pay (or cause to be paid) the Indebtedness and shall perform and discharge (or cause to be performed and discharged) the Obligations, then in that case only (and subject to the limitations contained in this Mortgage), the liens, security interests, estates and rights granted by this Mortgage shall terminate and be released by Mortgagee at Mortgagor's expense; otherwise same shall remain in full force and effect. A certificate or statement from Mortgagee confirming that the Indebtedness has not been paid in full or that the Obligations have not been fully performed and discharged shall be sufficient evidence thereof for the purposes of reliance by third parties on that fact.
WARRANTIES, REPRESENTATIONS AND COVENANTS
Mortgagor warrants, represents and covenants to, and agrees with, Mortgagee as follows:
- Organization and Power. Mortgagor has all requisite power and all governmental certificates of authority, licenses, permits, qualifications and documentation to own, lease and operate its properties and to carry on its business as now being, and as proposed to be, conducted.
- Validity and Enforceability of Loan Documents. The execution, delivery and performance by Mortgagor of the Loan Documents to which it is a party: (a) are within the powers of Mortgagor and have been duly authorized by Mortgagor (and all requisite actions for such authorization have been taken); (b) have received all (if any) requisite prior governmental approval in order to be legally binding and enforceable against Mortgagor in accordance with the terms thereof; and (c) will not violate, be in conflict with, result in a breach of or constitute (with due notice or lapse of time, or both) a default under, any Organizational Documents or any Governmental Requirement or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of Mortgagor's property or assets, except as contemplated by the provisions of the Loan Documents. The Loan Documents to which Mortgagor is a party constitute the legal, valid and binding obligations of Mortgagor enforceable in accordance with their respective terms.
- Information. Mortgagor has fully disclosed to Mortgagee all known facts material to the Mortgaged Property. All financial statements and other information, reports, papers and data given to Mortgagee with respect to Borrower or other Loan Parties, or the Mortgaged Property, are accurate, complete and correct in all material respects and do not omit any fact, the inclusion of which is necessary to prevent the facts contained therein from being materially misleading. All such financial statements fairly present the financial condition and results of operations of such applicable person or the other subject of such financial statements, and since the date thereof there has been no material adverse change in such financial condition or operation.
- Litigation. There are no actions, suits or proceedings pending, or to the knowledge of Mortgagor threatened, against or affecting the Mortgaged Property, or involving the validity or enforceability of this Mortgage or any of the other Loan Documents or the priority of the liens and security interests created by the Loan Documents that individually or in the aggregate, if resolved adversely to Mortgagor, would reasonably be expected to result in a Material Adverse Effect, and no event has occurred which will violate, be in conflict with, result in the breach of, or constitute (with due notice or lapse of time, or both) a material default under, any Organizational Document or any Governmental Requirement or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of Mortgagor's property other than the liens and security interests created by the Loan Documents.
- Use of Loan Proceeds. No part of the proceeds from the Loans evidenced by the Loan Documents will be used for the purposes (whether immediate, incidental or ultimate) of "purchasing" or "carrying" any "margin stock", as such terms are defined in Regulation U (12 CFR part 221) of the Board of Governors of the Federal Reserve System, or for the purpose of reducing or retiring any indebtedness which was originally incurred for such purpose.
- Title to Mortgaged Property and Lien of This Instrument. Mortgagor owns the Mortgaged Property free and clear of any liens, claims or interests, except the Permitted Encumbrances, and has rights and the power to transfer each item of the Mortgaged Property. This Mortgage creates valid, enforceable first priority liens and security interests against the Mortgaged Property. Where any of the Mortgaged Property is in the possession of a third party, Mortgagor will join with Mortgagee in notifying the third party of Mortgagee's security interest and obtaining an acknowledgment from the third party that it is holding such Mortgaged Property for the benefit of Mortgagee. Mortgagor will cooperate with Mortgagee in obtaining control (for lien perfection purposes under the UCC) with respect to any Mortgaged Property consisting of deposit accounts, letter of credit rights or electronic chattel paper.
- First Lien Status. Mortgagor shall preserve and protect the first lien and security interest status of this Mortgage and the other Loan Documents. If any lien or security interest other than the Permitted Encumbrances is asserted against the Mortgaged Property, Mortgagor shall promptly, and at its expense, give Mortgagee a detailed written notice of such lien or security interest (including origin, amount and other terms), and pay the underlying claim in full or take such other action so as to cause it to be released or contest the same in compliance with the requirements of the Credit Agreement (including the requirement of providing a bond or other security satisfactory to Mortgagee).
- No Other Liens. Mortgagor will not, without the prior written consent of the Mortgagee, create, place or permit to be created or placed, or through any act or failure to act, acquiesce in the placing of, or allow to remain, any deed of trust, mortgage, voluntary or involuntary lien, whether statutory, constitutional or contractual, security interest, encumbrance or charge, or conditional sale or other title retention document, against or covering the Mortgaged Property, or any part thereof, other than the Permitted Encumbrances and liens and security interests on the Mortgaged Property to the extent such liens and security interests are permitted by the other Loan Documents, and should any of the foregoing become attached hereafter in any manner to any part of the Mortgaged Property without the prior written consent of the Mortgagee, Mortgagor will cause the same to be promptly discharged and released. Mortgagor will own all parts of the Mortgaged Property, subject to Permitted Encumbrances, and will not acquire any fixtures, equipment or other property forming a part of the Mortgaged Property pursuant to a lease, license, security agreement or similar agreement, whereby any party has or may obtain the right to repossess or remove same, without the prior written consent of the Mortgagee.
- Payment and Performance. Mortgagor shall fully pay and perform the Obligations in the Loan Documents to which Mortgagor is a party in full as and when they are required to be performed.
- Taxes and Other Impositions. Mortgagor, and each constituent member of Mortgagor, have filed all federal, state, county, municipal and city income and other tax returns required to have been filed by such person and have paid all taxes which have become due pursuant to such returns or pursuant to any assessments received by them, and Mortgagor knows of no basis for any additional assessment in respect of any such taxes. In addition, Mortgagor has paid in full all sums owing or claimed for labor, material, supplies, personal property (whether or not forming a Fixture hereunder) and services of every kind and character used, furnished or installed in or on the Mortgaged Property. Mortgagor will pay, or cause to be paid, all taxes, assessments and other charges or levies imposed upon or against or with respect to the Mortgaged Property or the ownership, use, occupancy or enjoyment of any portion thereof, or any utility service thereto, before the same become delinquent, including but not limited to all ad valorem taxes assessed against the Mortgaged Property or any part thereof, and shall deliver promptly to the Mortgagee such evidence of the payment thereof as the Mortgagee may reasonably require. The Mortgagor may, after notifying the Mortgagee, and at the Mortgagor's expense, in good faith contest any such taxes, assessments, other charges or levies or utility and other charges and, in the event of any such contest, may permit the taxes, assessments or other charges so contested to remain unpaid during the period of such contest and any appeal therefrom. Pending such contest, Mortgagor shall not be deemed in default hereunder because of such nonpayment if, prior to delinquency of the asserted tax or assessment, Mortgagor deposits with the Mortgagee an amount equal to at least 110% of the tax or assessment being contested by Mortgagor plus a reasonable additional sum to pay all costs, interest and penalties which may be imposed or incurred in connection therewith, conditioned that such tax or assessment, with interest, cost and penalties, be paid as herein stipulated, and if Mortgagor is diligently and in good faith contesting the validity, amount, or application of the asserted tax or assessment, and if Mortgagor promptly pays any amount adjudged by a court of competent jurisdiction to be due, with all costs, penalties and interest thereon, on or before the date such judgment becomes final; and provided, further, that in any event, the tax, assessment, penalties, interest and costs shall be paid prior to the date on which any writ or order is issued under which the Mortgaged Property may be sold in satisfaction thereof.
- Insurance. Subject to the Credit Agreement, Mortgagor will keep the Mortgaged Property insured as is customary for similarly situated property and, in any event, as reasonably required by Mortgagee. Mortgagor further agrees that Mortgagor will deliver to the Mortgagee the original policies evidencing such insurance and any additional insurance which shall be taken out upon any part of the Mortgaged Property and, upon request by Mortgagee, receipts evidencing the payment of all premiums, and will deliver certificates evidencing renewals of all such policies of insurance to the Mortgagee at least 15 days before any such insurance shall expire in and to such policies then in force concerning the Mortgaged Property.
- Condemnation. Mortgagor shall notify the Mortgagee as provided herein of any threatened or pending proceeding for condemnation affecting the Mortgaged Property or arising out of damage to the Mortgaged Property, and Mortgagor shall, at Mortgagor's expense, diligently prosecute any such proceedings. The Mortgagee shall have the right (but not the obligation) to participate in any such proceeding and to be represented by counsel of its own choice, such participation and legal representation to be at the Mortgagee's expense.
- Damage, Destruction, and Condemnation; Use of Proceeds.
- Condemnation Awards. Mortgagor assigns all awards and compensation for any condemnation or other taking, or any purchase in lieu thereof, to Mortgagee and authorizes Mortgagee to collect and receive such awards and compensation and to give proper receipts and acquittances therefor, subject to the terms of the Credit Agreement.
- Insurance Proceeds. Subject to the terms of the Credit Agreement, Mortgagor assigns to Mortgagee all Proceeds of any insurance policies insuring against loss or damage to the Mortgaged Property, and Mortgagor authorizes Mortgagee to collect and receive such Proceeds and authorizes and directs the issuer of each of such insurance policies to make payment for all such losses directly to Mortgagee, instead of to Mortgagor and Mortgagee jointly, subject to the terms of the Credit Agreement.
- Casualty Events. Within ten (10) days of its occurrence, the Mortgagor shall notify the Mortgagee of any Casualty Event. If, as a result of any Casualty Event, the Mortgaged Property, or any part of the Mortgaged Property, is damaged or destroyed, or the Mortgaged Property, or any part of the Mortgaged Property, shall be condemned or acquired for public use and the Proceeds as a result of such a Casualty Event exceed $250,000, the Mortgagor shall, within thirty (30) days after receiving actual notice of such damage, and written notice of the amount of insurance Proceeds or condemnation Proceeds, as the case may be, available to Mortgagor for repair and restoration of the damage or destruction, destruction or condemnation and, after written notice to the Mortgagee, elect to follow one of the two courses of action described below:
- Alternative A: Repair and Restoration. If the Mortgaged Property can be repaired or restored to substantially the same condition as existed prior to the event causing such damage or destruction, or the effect of the combination can be relieved so that the status of the Mortgaged Property will be restored to substantially the same status as existed prior to the event causing such condemnation, without, in either case, jeopardizing repayment of the principal of and interest on the Indebtedness, and Mortgagor elects to repair and restore the Mortgaged Property, the Proceeds will be deposited with the Mortgagee and held in a special escrow account of the Mortgagee to be applied to repair, replace, or improve the Mortgaged Property. Proceeds held in such escrow account held by the Mortgagee shall be disbursed by the Mortgagee for the repair, replacement, or improvement of the Mortgaged Property upon receipt by the Mortgagee from the Mortgagor of (A) an architect's certificate with each draw submitted by Mortgagor stating that the repairs, replacements, or improvements completed through the date of such draw are practical and necessary, have been completed in accordance with plans and specifications previously provided to the Mortgagee, and that such repairs, replacements, or improvements comply with all applicable statutes, codes, and regulations; (B) a certificate stating that sufficient moneys are available to cause such repair, restoration, replacements, or improvements; (C) requisitions and certificates from the Mortgagor in the form reasonably acceptable to the Mortgagee; (D) applicable lien waivers; and (E) an endorsement to the title insurance policy insuring the continued priority of the lien of this Mortgage. The Mortgagee shall retain ten percent (10%) of the requested disbursements to be disbursed upon final completion of the repairs, replacements, or improvements as certified by an independent architect and receipt of waivers of liens and an endorsement to the title policy for the Mortgaged Property insuring the continued priority of the lien of this Mortgage. If at any time during the restoration, the Proceeds are less than the estimated cost to repair the Mortgaged Property, the Mortgagor shall pay an amount equal to the shortfall. The Mortgagor may rely upon the advice of architects, engineers, accountants, financial consultants, attorneys, or other experts selected by it in the foregoing matters. Any Proceeds in excess of the amount required to repair and restore the Mortgaged Property under this Alternative A, at the direction of the Mortgagor, shall either be used to prepay the Indebtedness or disbursed to the Mortgagor.
- Alternative B: Prepayment of Indebtedness. The Mortgagor shall apply, or cause to be applied, the Proceeds relating to such Casualty Event to prepay the Indebtedness.
- If, in accordance with this Section, the Mortgagor elects to repair, restore, or replace the Mortgaged Property and the Proceeds are insufficient to pay in full the cost of any repair, restoration, modification, or improvement, the Mortgagor will nonetheless complete the work and will pay any costs in excess of the amount of the Proceeds held by the Mortgagee, and, upon the request of Mortgagee, will deposit with Mortgagee amounts sufficient to cover the full amount of such shortfall. The Mortgagor agrees that if by any reason any of such insufficiency of the Proceeds, the Mortgagor shall make any payment pursuant to the provisions of this Section, the Mortgagor shall not be entitled to any reimbursement therefor from the Mortgagee, nor shall the Mortgagor be entitled to any diminution of the amounts payable under the Indebtedness.
- Compliance with Governmental Requirements. The Mortgaged Property and the use, operation and maintenance thereof and all activities thereon do and shall at all times comply with all applicable Governmental Requirements in all material respects. The Mortgaged Property is not, and shall not be, dependent on any other property or premises or any interest therein other than the Mortgaged Property to fulfill any requirement of any Governmental Requirement. Mortgagor shall not, by act or omission, permit any building or other improvement not subject to the lien of this Mortgage to rely on the Mortgaged Property or any interest therein to fulfill any requirement of any Governmental Requirement. To Mortgagor's knowledge, no part of the Mortgaged Property constitutes a nonconforming use under any zoning law or similar law or ordinance. Mortgagor has obtained and shall preserve in force all requisite zoning, utility, building, health and operating permits from the governmental authorities having jurisdiction over the Mortgaged Property. If Mortgagor receives a notice or claim from any person that the Mortgaged Property, or any use, activity, operation or maintenance thereof or thereon, is not in compliance with any Governmental Requirement, Mortgagor will promptly furnish a copy of such notice or claim to the Mortgagee. Mortgagor has received no notice and has no knowledge of any such noncompliance.
- Maintenance and Repair. Mortgagor will keep the Mortgaged Property in good working order, repair, and condition (reasonable wear and tear excepted), causing all necessary repairs, renewals, replacements, additions and improvements to be promptly made, and will not allow any of the Mortgaged Property to be misused, abused or wasted or to deteriorate. Notwithstanding the foregoing, Mortgagor will not, without the prior written consent of the Mortgagee, which consent shall not be unreasonably withheld make any structural alteration to the Mortgaged Property or any other alteration thereto that impairs the value thereof.
- Operation of Mortgaged Property. Mortgagor will operate the Mortgaged Property in a good and workmanlike manner and in accordance with all Governmental Requirements in all material respects and will pay all fees or charges of any kind in connection therewith. Mortgagor will keep the Mortgaged Property occupied so as not to impair the insurance carried thereon. Mortgagor will not use or occupy or conduct any activity on, or allow the use or occupancy of or the conduct of any activity on, the Mortgaged Property in any manner that violates any Governmental Requirement in any material respect or that constitutes a public or private nuisance or that makes void, voidable or cancelable, any insurance then in force with respect thereto. Mortgagor will not initiate or permit any zoning reclassification of the Mortgaged Property or seek any variance under existing zoning ordinances applicable to the Mortgaged Property or use or permit the use of the Mortgaged Property in such a manner that would result in such use becoming a nonconforming use under applicable zoning ordinances or any other Governmental Requirement without the prior written consent of the Mortgagee, which consent shall not be unreasonably withheld. With the exception of the Permitted Encumbrances, Mortgagor will not impose any easement, restrictive covenant or encumbrance upon the Mortgaged Property, execute or file any subdivision plat or condominium declaration affecting the Mortgaged Property without the prior written consent of the Mortgagee. Mortgagor will preserve, protect, renew, extend and retain all material rights and privileges granted for or applicable to the Mortgaged Property. Without the prior written consent of the Mortgagee, there shall be no drilling or exploration for or extraction, removal or production of any mineral, hydrocarbon, gas, natural element, compound or substance (including sand and gravel) from the surface or subsurface of the Land regardless of the depth thereof or the method of mining or extraction thereof. Mortgagor will cause all debts and liabilities of any character (including without limitation all lawful and valid debts and liabilities for labor, material and equipment and all debts and charges for utilities servicing the Mortgaged Property) incurred in the maintenance, operation and development of the Mortgaged Property to be promptly paid.
- Status of Mortgagor; Suits and Claims; Loan Documents. Mortgagor is and will continue to be (i) duly organized, validly existing and in good standing under the laws of its state of organization, (ii) authorized to do business in, and in good standing in, each state in which the Mortgaged Property is located, and (iii) possessed of all requisite power and authority to carry on its business and to own and operate the Mortgaged Property. Each Loan Document executed by Mortgagor has been duly authorized, executed and delivered by Mortgagor, and the obligations thereunder and the performance thereof by Mortgagor in accordance with their terms are and will continue to be within Mortgagor's power and authority (without the necessity of joinder or consent of any other person), are not and will not be in contravention of any Governmental Requirement to which Mortgagor or the Mortgaged Property is subject, and do not and will not result in the creation of any encumbrance against any assets or properties of Mortgagor, or any other person liable, directly or indirectly, for any of the Indebtedness, except as expressly contemplated by the Loan Documents. There is no suit, action, claim, investigation, inquiry, proceeding or demand pending (or, to Mortgagor's knowledge, threatened) that affects the Mortgaged Property (including, without limitation, any that challenges or otherwise pertains to Mortgagor's title to the Mortgaged Property) or the validity, enforceability or priority of any of the Loan Documents. There is no judicial or administrative action, suit or proceeding pending (or, to Mortgagor's knowledge, threatened) against Mortgagor, except as has been disclosed in writing to the Mortgagee in connection with the debt evidenced by the Indebtedness. The Loan Documents constitute legal, valid and binding obligations of Mortgagor enforceable in accordance with their terms, except as the enforceability thereof may be limited by the bankruptcy laws or any other debtor relief laws of the United States or any state or any other competent jurisdiction and except as the availability of certain remedies may be limited by general principles of equity. Mortgagor is not a "foreign person" within the meaning of the Internal Revenue Code of 1986, as amended, Sections 1445 and 7701 (i.e. Mortgagor is not a non-resident alien, foreign corporation, foreign partnership, foreign trust or foreign estate as those terms are defined therein and in any regulations promulgated thereunder). The debt evidenced by the Indebtedness is solely for business purposes, and is not for personal, family, household or agricultural purposes. Mortgagor will not cause or permit any change to be made in its name, identity, or corporate or partnership structure, unless Mortgagor shall have notified the Mortgagee of such change prior to the effective date of such change, and shall have first taken all action required by the Mortgagee for the purpose of further perfecting or protecting the lien and security interest of the Mortgagee in the Mortgaged Property.
- Further Assurances. Mortgagor will, promptly on request of Mortgagee, (i) correct any defect, error or omission that may be discovered in the contents, execution or acknowledgment of this Mortgage or any other Loan Document; (ii) execute, acknowledge, deliver, procure and record and/or file such further documents (including, without limitation, further deeds of trust, security agreements, financing statements, continuation statements, and assignments of rents or leases) and do such further acts as may be necessary or proper to carry out more effectively the purposes of this Mortgage and the other Loan Documents, to more fully identify and subject to the liens and security interests hereof any property intended to be covered hereby (including specifically, but without limitation, any renewals, additions, substitutions, replacements, or appurtenances to the Mortgaged Property) or as deemed advisable by Mortgagee to protect the lien or the security interest hereunder against the rights or interests of third persons; and (iii) provide such certificates, documents, reports, information, affidavits and other instruments and do such further acts as may be necessary or proper in the reasonable determination of Mortgagee to enable Mortgagee to comply with the requirements or requests of any agency having jurisdiction over Mortgagee or any examiners of such agencies with respect to the indebtedness secured hereby, Mortgagor or the Mortgaged Property. Mortgagor shall pay all costs connected with any of the foregoing, which shall be a demand obligation owing by Mortgagor (which Mortgagor hereby promises to pay) to Mortgagee pursuant to this Mortgage.
- Fees and Expenses. Without limitation of any other provision of this Mortgage or of any other Loan Document, but as expressly limited by the terms of such other Loan Documents, and to the extent not prohibited by applicable law, Mortgagor will pay, and will reimburse to Mortgagee on demand to the extent paid by Mortgagee: (i) all appraisal fees, filing and recording fees, taxes, brokerage fees and commissions, abstract fees, title search or examination fees, title policy and endorsement premiums and fees, uniform commercial code search fees, escrow fees, reasonable attorneys' fees, architect fees, construction consultant fees, environmental inspection fees, survey fees, and all other out-of-pocket reasonable costs and expenses of every character incurred by Mortgagee in connection with the preparation of the Loan Documents, the evaluation, closing and funding of the debt evidenced by the Loan Documents, and any and all amendments and supplements to this Mortgage, the Indebtedness or any other Loan Documents or any approval, consent, waiver, release or other matter requested or required hereunder or thereunder, or otherwise attributable or chargeable to Mortgagor as owner of the Mortgaged Property; and (ii) all costs and expenses, including reasonable attorneys' fees and expenses, incurred or expended in connection with the exercise of any right or remedy, or the enforcement of any obligation of Mortgagor, hereunder or under any other Loan Document.
- Assignment and Transfer. Mortgagor expressly agrees that if Mortgagor, without the prior written consent of Mortgagee, which may be withheld in Mortgagee's sole discretion, sells, exchanges, assigns or otherwise disposes of all or any portion of the Mortgaged Property or rents or leases any of the Mortgaged Property for any period in excess of one (1) year, other than intercompany leases with other Loan Parties that are expressly made subordinate to the lien of this Mortgage, Mortgagee shall have the right and option to declare the entire amount of the Indebtedness immediately due and payable. Any Change in Control of Mortgagor shall be deemed to be within the prohibition contained within this paragraph and shall require the prior written consent of Mortgagee, without which the rights of Mortgagee contained in this paragraph shall be triggered. The right and option granted hereunder, to the extent permitted by law, shall be absolute, irrespective of whether the sale, exchange, assignment or transfer would or might: (i) diminish the value of the security for the Indebtedness; (ii) result in an Event of Default hereunder; (iii) compel the Mortgagee hereof to seek any remedies available to it, whether at law or in equity; or (iv) add or remove the liability of any person or entity for payment or performance of the Indebtedness or any covenant or obligation under this Mortgage.
- Mortgagor to Benefit. Mortgagor confirms that it is an Affiliate of Borrower. In this regard, the conveyance of the Mortgaged Property to Mortgagee pursuant to this Mortgage, and Mortgagor's representations, warranties and obligations pursuant to this Mortgage, reasonably may be expected to benefit, directly or indirectly, Mortgagor; and Mortgagor has determined that the execution, delivery, and performance of this Mortgage is necessary and convenient to the conduct, promotion and attainment of the business of the Mortgagor and of Borrower.
- Replacement of Fixtures and Personalty. Mortgagor shall not, without the prior written consent of Mortgagee, permit any of the Fixtures or Personalty to be removed at any time from the Land or Improvements, unless the removed item is removed temporarily for maintenance and repair or, if removed permanently, is obsolete and is replaced by an article of equal or better suitability and value, owned by Mortgagor subject to the liens and security interests of this Mortgage and the other Loan Documents, and free and clear of any other lien or security interest except such as may be first approved in writing by Mortgagee. Mortgagor shall not incorporate into the Mortgaged Property any item of personalty, fixtures or other property that is not owned by Mortgagor free and clear of all liens or security interests except the liens and security interests in favor of Mortgagee created by the Loan Documents.
- Maintenance of Rights of Way, Easements and Licenses. Mortgagor shall maintain all rights of way, easements, grants, privileges, licenses, certificates, permits, entitlements, and franchises necessary for the use of the Mortgaged Property and will not, without the prior consent of Mortgagee, consent to any public restriction (including any zoning ordinance) or private restriction as to the use of the Mortgaged Property. Mortgagor shall comply with all restrictive covenants affecting the Mortgaged Property, and all zoning ordinances and other public or private restrictions as to the use of the Mortgaged Property.
- Inspection. Mortgagor shall permit Mortgagee, and its agents, representatives and employees, upon reasonable prior notice to Mortgagor, to inspect the Mortgaged Property and conduct such environmental and engineering studies as Mortgagee may require, provided that such inspections and studies shall not materially interfere with the use and operation of the Mortgaged Property.
- Compliance with Anti-Forfeiture Laws. Mortgagor will not commit any act or omission affording the federal government or any state or local government the right of forfeiture as against the Mortgaged Property or any part thereof or any money paid in performance of Mortgagor's obligations under the Loan Documents.
- Post-Closing Costs. Mortgagor will promptly pay to Mortgagee any administrative fees and reimburse Mortgagee for all of Mortgagee's costs and expenses (including without limitation reasonable attorneys' fees) associated with reviewing and processing requests of Mortgagor made after the date hereof.
- Performance of Leases. Mortgagor shall (a) duly and punctually perform and comply with any and all representations, warranties, covenants and agreements binding upon it under each of the Leases, (b) except in the ordinary course of business, and exercising reasonable care of a prudent operator or manager of properties similarly situated to the Mortgaged Property, not voluntarily terminate, cancel or waive its rights or the obligations of any other party under any of the Leases, (c) use commercially reasonable efforts to maintain each of the Leases in force and effect during the full term thereof, and (d) appear in and defend any action or proceeding arising under or in any manner connected with any of the Leases or the representations, warranties, covenants and agreements of it or the other party or parties thereto.
- INDEMNIFICATION AND HOLD HARMLESS. MORTGAGOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS EACH INDEMNITEE FROM AND AGAINST, AND MORTGAGOR SHALL BE RESPONSIBLE FOR, ANY AND ALL LIABILITIES (INCLUDING WITHOUT LIMITATION STRICT LIABILITY), ACTIONS, DEMANDS, PENALTIES, FINES, LOSSES, COSTS OR EXPENSES (INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS' AND EXPERTS' FEES AND EXPENSES), SUITS, COSTS OF ANY SETTLEMENT OR JUDGMENT, AND CLAIMS OF ANY AND EVERY KIND WHATSOEVER, WHETHER ARISING IN EQUITY, AT COMMON LAW, OR BY STATUTE, OR UNDER THE LAW OF CONTRACTS, TORTS (INCLUDING WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY WITHOUT REGARD TO FAULT) OR PROPERTY, OF EVERY KIND OR CHARACTER (INCLUDING, WITHOUT LIMITATION, CLAIMS FOR PERSONAL INJURY, EMOTIONAL DISTRESS, REAL AND PERSONAL PROPERTY DAMAGE, AND ECONOMIC LOSS), WHICH MAY NOW OR IN THE FUTURE (WHETHER BEFORE OR AFTER THE RELEASE OF THIS MORTGAGE) BE PAID, INCURRED OR SUFFERED BY OR ASSERTED OR AWARDED AGAINST EACH INDEMNITEE, BY ANY PERSON OR ENTITY OR GOVERNMENTAL AUTHORITY, OR AFFECTING THE MORTGAGED PROPERTY OR THE LOAN DOCUMENTS, RESULTING FROM, ARISING OUT OF, BY REASON OF, ON ACCOUNT OF, OR IN CONNECTION WITH: (I) THE FAILURE OF MORTGAGOR TO TIMELY PAY THE INDEBTEDNESS OR TO PERFORM OR DISCHARGE THE OBLIGATIONS OR OTHERWISE TO COMPLY WITH THE PROVISIONS OF THE LOAN DOCUMENTS, (II) ANY BODILY INJURY OR DEATH OR PROPERTY DAMAGE OCCURRING IN OR UPON THE MORTGAGED PROPERTY THROUGH ANY CAUSE WHATSOEVER; (III) ANY act performed or omitted to be performed hereunder or on account of any transaction arising out of or in any way connected with the Mortgaged Property or with thE LOAN DOCUMENTS; (iv) ANY INACCURACY OF ANY REPRESENTATION OR WARRANTY OF MORTGAGOR SET FORTH IN ANY OF THE LOAN DOCUMENTS OR ANY INSTRUMENTS, DOCUMENTS OR CERTIFICATIONS DELIVERED IN CONNECTION THEREWITH; OR (V) ANY ACTS PERFORMED BY MORTGAGEE PURSUANT TO THE PROVISIONS OF SECTION 9.7 OF THIS MORTGAGE, NOTWITHSTANDING THE NEGLIGENCE OR STRICT LIABILITY (WITHOUT REGARD TO FAULT), OF EACH INDEMNITEE, AND ALL COSTS AND EXPENSES INCURRED BY EACH INDEMNITEE IN PROTECTING THEIR INTERESTS HEREUNDER IN SUCH AN EVENT (INCLUDING ALL COURT COSTS AND REASONABLE ATTORNEYS' FEES) SHALL BE BORNE BY MORTGAGOR. However, such indemnities shall not apply to any indemnITEE party to the extent the subject of the indemnification is caused by or arises out of the gross negligence or willful misconduct of such indemniTEE. The obligations of the Mortgagor contained in this SEction 3.28 shall survive the foreclosure of this Mortgage and shall further survive the repayment of the Indebtedness, the termination hereof and the discharge of the other Obligations under this Mortgage and the other Loan Documents.
- Other Covenants. All of the covenants in the Loan Documents to which Mortgagor is a party are expressly incorporated herein by reference and, together with covenants in this Article 3, shall be covenants running with the land.
DEFAULT AND FORECLOSURE
- Acceleration. Declare the Indebtedness to be immediately due and payable, without further notice, presentment, protest, notice of intent to accelerate, notice of acceleration, demand or action of any nature whatsoever (each of which hereby is expressly waived by Mortgagor), whereupon the same shall become immediately due and payable.
- Entry Upon Mortgaged Property. Subject to and to the extent permitted by applicable law, enter upon the Mortgaged Property and take exclusive possession thereof and of all books, records and accounts relating thereto. If Mortgagor remains in possession of all or any part of the Mortgaged Property after an Event of Default and without Mortgagee's prior written consent thereto, Mortgagee may invoke any and all available legal remedies to dispossess Mortgagor. Nothing contained in the foregoing sentence shall, however, be construed to impose any greater obligation or any prerequisites to acquiring possession of the Mortgaged Property after an Event of Default than would have existed in the absence of such sentence.
- Operation of Mortgaged Property. Subject to and to the extent permitted by applicable law, hold, lease, manage, operate or otherwise use or permit the use of the Mortgaged Property, either itself or by other persons, firms or entities, in such manner, for such time and upon such other terms as Mortgagee may deem to be prudent and reasonable under the circumstances (making such repairs, alterations, additions and improvements thereto and taking any and all other action with reference thereto, from time to time, as Mortgagee shall deem necessary or desirable), and apply all Rents and other amounts collected by Mortgagee in connection therewith in accordance with the provisions of Section 4.9 hereinbelow.
- Foreclosure. To foreclose upon this Mortgage and the liens and security interests hereof, and to sell the Mortgaged Property, in accordance with the laws of the State of Ohio.
- Receiver. Make application to a court of competent jurisdiction as a matter of strict right and without notice to Mortgagor or regard to the adequacy of the Mortgaged Property for the repayment of the Indebtedness or the solvency of any person or entity liable for the repayment of the Indebtedness, for appointment of a receiver of the Mortgaged Property, and Mortgagor does hereby irrevocably consent to such appointment. Any such receiver shall have all the usual powers and duties of receivers in similar cases, including the full power to rent, maintain and otherwise operate the Mortgaged Property upon such terms as may be approved by the court, and shall apply such Rents in accordance with the provisions of Section 4.9 hereinbelow. The right to the appointment of a receiver shall apply regardless of whether Mortgagee has commenced procedures for the foreclosure of the liens and security interests created herein, or has commenced any other legal proceedings to enforce payment of the Indebtedness or performance or discharge of the Obligations, and shall also apply upon the actual or threatened waste to any part of the Mortgaged Property.
- This Section Has Been Intentionally Left Blank.
- Other. Exercise any and all other rights, remedies and recourses granted under the Loan Documents or now or hereafter existing in equity, at law, by virtue of statute or otherwise.
- first, to that portion (if any) of the Indebtedness then remaining unpaid (including without limitation principal and accrued interest and the costs and expenses of taking possession of the Mortgaged Property and of holding, managing, operating, using, leasing, repairing, improving and selling the same, including by way of illustration but not by way of limitation any one or more of the following to the extent Mortgagee deems appropriate: (i) reasonable receivers' fees, (ii) court costs, (iii) reasonable attorneys', brokers', managers', accountants' and appraisers' fees and expenses, (iv) costs of advertisement, and (v) the payment of any and all real estate ad valorem taxes and similar impositions, liens, security interests or other rights, titles or interests equal or superior to the lien and security interest of this Mortgage except those to which the Mortgaged Property has been or will be sold subject to and without in any way implying Mortgagee's prior consent to the creation thereof) as to which the Loan Parties (or any of them) are not fully personally liable, it being agreed that the application of such proceeds shall be in such a manner as to preserve (and not extinguish or reduce) the Loan Parties' personal liability under the Loan Documents until all the Indebtedness as to which the Loan Parties are not personally liable has been paid in full;
- second, to the payment of that portion of the Indebtedness as to which the Loan Parties (or any of them) are fully liable;
- third, to the extent permitted by law and funds are available therefor out of the sale proceeds or the Rents, to the payment of any indebtedness or obligation secured by a subordinate Mortgage on or security interest covering the Mortgaged Property if Mortgagee has actual knowledge of such subordinate Mortgage or security interest (but without in any way implying Mortgagee's prior consent to the creation thereof); and
- fourth, the balance, if any, to the payment of the persons legally entitled thereto, which may include Mortgagor.
- If any Event of Default exists, Mortgagee shall have the right, but not the obligation, to cure such Event of Default in the name and on behalf of Mortgagor. All sums advanced and expenses incurred at any time by Mortgagee under this Section 4.10, or otherwise under this Mortgage or any of the other Loan Documents or applicable law, shall bear interest from the date that such sum is advanced or expense incurred, to and including the date of reimbursement, computed at the Post-Default Rate (as calculated pursuant to Section 3.02(c) of the Credit Agreement), and all such sums, together with interest thereon, shall be secured by this Mortgage.
- Mortgagor shall pay all expenses (including reasonable attorneys' fees and expenses) of or incidental to the perfection and enforcement of this Mortgage and the other Loan Documents, or the enforcement, compromise or settlement of the Indebtedness or any claim under this Mortgage and the other Loan Documents, and for the curing thereof, or for defending or asserting the rights and claims of Mortgagee in respect thereof, by litigation or otherwise.
ASSIGNMENT OF LEASES and Rents
SECURITY AGREEMENT
Name and Address of the debtor: The Mortgagor having the address described in the Preamble hereof. The Mortgagor is a limited liability company organized under the laws of the State of Delaware whose Organization Number is 4736229 |
Name and Address of the secured party: The Mortgagee having the address described in the Preamble hereof, from which address information concerning the security interest may be obtained. |
This Financing Statement covers the following types or items of property: The Mortgaged Property. This instrument covers goods or items of personal property which are or are to become fixtures upon the real property included in the Mortgaged Property. |
|
The name of the record owner of the real property on which such fixtures are or are to be located is: Westway Terminal Cincinnati LLC. |
HAZARDOUS MATERIALS
- "Governmental Authority" shall mean the United States, the state, the county, the city, or any other political subdivision in which the Mortgaged Property is located, and any other political subdivision, agency, or instrumentality exercising jurisdiction over Mortgagor or the Mortgaged Property.
- "Environmental Laws" shall mean all laws, ordinances, orders, interpretations, rules and regulations of any Governmental Authority applicable to Mortgagor or the Mortgaged Property relating to human health or the environment, including, without limitation, RCRA and CERCLA (as hereinafter defined), the Toxic Substances Control Act, 15 U.S.C. Section 2601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq., the Clean Water Act, 33 U.S.C. Section 1251, et seq., the Clean Air Act, 42 U.S.C. Section 7401 et seq., the Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq., all as now or hereafter amended, as well as any common law or any other rule of law of any Governmental Authority applicable to the Mortgagor or the Mortgaged Property and relating to human health or the environment.
- "Hazardous Materials" shall mean any of the following: (i) any "hazardous waste" as defined by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), as amended from time to time, and regulations promulgated thereunder ("RCRA"); (ii) any "hazardous substance", "pollutant" or "contaminant", as defined by the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), as amended from time to time, and regulations promulgated thereunder ("CERCLA"); (iii) asbestos (whether or not friable) and asbestos-containing materials; (iv) any volatile organic compounds, including oil and petroleum products; (v) any substances which because of their quantitative concentration, chemical, radioactive, flammable, explosive, infectious or other characteristics, constitute or may reasonably be expected to constitute or contribute to a danger or hazard to public health, safety or welfare or to the environment, including, without limitation, any polychlorinated biphenyls (PCBs), toxic metals, etchants, pickling and plating wastes, explosives, reactive metals and compounds, pesticides, herbicides, urea formaldehyde foam insulation and chemical, biological and radioactive wastes; (vi) radon gas; (vii) any other substance the presence of which on the Mortgaged Property is prohibited by any Environmental Laws; and (viii) any other substance which by any Environmental Laws requires special handling or notification of any federal, state or local governmental entity in its collection, storage, treatment, or disposal. However, for the purposes of the representations, warranties and covenants, but not the indemnification obligations, set forth in this Mortgage, the term "Hazardous Materials" shall not include materials, chemicals or substances normally used in connection with the use, management, operation, or ownership of the Mortgaged Property, provided that such materials, chemicals or substances are stored, handled and used in a safe and prudent manner and in accordance with all Environmental Laws.
- "Hazardous Materials Contamination" shall mean the contamination (whether presently existing or hereafter occurring) of the Land, facilities, soil, groundwater, air or other elements on or of the Mortgaged Property by Hazardous Materials, or the contamination of the buildings, facilities, soil, groundwater, air or other elements on or of any other property as a result of Hazardous Materials at any time (whether before or after the date of this Mortgage) emanating or otherwise released from the Mortgaged Property.
- "Environmental Reports" shall mean any environmental reports relating to the Land (which, for all purposes of this Article 7 is deemed to include the Improvements and the Fixtures) provided to Mortgagee by Mortgagor prior to the effective date hereof.
- Mortgagor has performed or caused to be performed reasonable investigations, studies and tests as to any possible environmental contamination, remedial obligation, liabilities or problems with respect to the Land and such investigations, studies and tests have disclosed no Hazardous Materials or Violations of Environmental Laws, except as set forth in the Environmental Reports. As used in this Article 7, any references to "Violations" of an Environmental Law shall also include any failure to comply with any such Environmental Law and any act, omission or condition which subjects any past, present or future owner or operator of, or lienholder secured by, the Land, to liability, or imposes remedial obligations on such owner, operator or lienholder, under such Environmental Law.
- Except as set forth in the Environmental Reports, to the knowledge of Mortgagor, there have been no releases of Hazardous Materials either at, upon, under or within the Land, and no Hazardous Materials have migrated to the Land from neighboring properties.
- Except as set forth in the Environmental Reports, to the knowledge of Mortgagor, no Hazardous Materials are located on or have been stored, processed or disposed of on, or released or discharged from (including discharges to groundwater), the Land or any other adjoining property currently owned or operated by Mortgagor or any affiliate of Mortgagor, and no above or underground storage tanks exist on the Land.
- Mortgagor has not received notice from any Governmental Authority, any tenant or other occupant of the Mortgaged Property or from any other person with respect to any release of Hazardous Materials at, upon, under or within the Land, and no investigation, administrative order, consent order and agreement, litigation or settlement with respect to Hazardous Materials or Hazardous Materials Contamination is proposed, threatened, anticipated or in existence with respect to the Land. The Land is not currently on, and has never been on, any federal or state "Superfund" or "Superlien" list.
- Except as set forth in the Environmental Reports, Mortgagor possesses all permits, licenses, registrations, and similar authorizations required to operate the Mortgaged Property under Environmental Laws, and the Mortgaged Property and all operations conducted thereon are currently in compliance with all Environmental Laws.
- Except as set forth in the Environmental Reports, neither Mortgagor nor, to the knowledge of Mortgagor, any prior owner or operator of the Mortgaged Property has been or is involved in operations at the Land which could lead to the imposition on Mortgagor or any subsequent owner of the Land of liability under Environmental Laws.
- Mortgagor will strictly comply with all Environmental Laws, and, as soon as practicable, will notify Mortgagee of the presence of or any release of Hazardous Materials at, upon, under or within the Land, or of the receipt by Mortgagor of any notice from any Governmental Authority or from any tenant or other occupant or from any other person with respect to any alleged such release or presence, promptly upon discovery of such release or presence or receipt of such notice, and will send to Mortgagee copies of all results of environmental assessments and tests at the Land. Without limiting the generality of the foregoing, Mortgagor, as soon as practicable, will give to Mortgagee notice of the commencement of any litigation or threat of litigation relating to any alleged release of any Hazardous Materials at, upon, under or within the Land. Mortgagor, as soon as practicable, will deliver to Mortgagee any documentation or records Mortgagee may reasonably request and which are susceptible of being obtained by Mortgagor without undue cost or expense and without the necessity for initiating legal proceedings to obtain the same in connection with all such notices, inquiries, and communications, and shall endeavor to advise Mortgagee of any subsequent developments.
- Mortgagor shall, at its own cost and expense, take all actions as shall be necessary or advisable for the clean-up of the Land or any other Section 7.3 Property (as hereinafter defined), including all removal, containment and remedial action in accordance with all applicable Environmental Laws (and in all events in a manner reasonably satisfactory to Mortgagee), and shall further pay or cause to be paid at no expense to Mortgagee all clean-up, administrative, and enforcement costs of all Governmental Authorities or the parties protected by Environmental Laws which may be asserted against the Land or any other Section 7.3 Property, the owner or operator thereof or a lienholder secured thereby. All costs (including, without limitation, those costs described above), damages, liabilities, losses, claims, expenses (including, without limitation, reasonable attorneys' fees and disbursements) which are reasonably incurred by Mortgagee, without the requirement that Mortgagee wait for the ultimate outcome of any litigation, claim or other proceeding, shall be paid by Mortgagor to Mortgagee within ten (10) days after written notice to Mortgagor from Mortgagee itemizing the amounts incurred to the effective date of such notice, with interest thereon commencing ten (10) days after the effective date of such notice at the default or post-maturity rate of interest provided for in the Loan Documents. Until such amounts shall be paid by Mortgagor, they shall be added to and become a part of the Indebtedness secured hereby. As used herein, the term "Section 7.3 Property" shall mean any property (other than the Land) owned or operated by Mortgagor or any affiliate of Mortgagor to the extent that any Governmental Authority could obtain a lien on the Land for the clean-up, removal, containment or any remedial action with respect to such other property in accordance with applicable Environmental Laws.
- Mortgagor will notify Mortgagee in writing, as soon as practicable, upon learning that any information provided by Mortgagor in connection with the loan evidenced by the Loan Documents either was not true in any material respect when made or is no longer true in any material respect.
CONCERNING MORTGAGEE
MISCELLANEOUS
- The Mortgaged Property shall be to valued "AS IS" and "WITH ALL FAULTS" and there shall be no assumption of restoration of or refurbishment of improvements, if any, after the date of the foreclosure;
- There shall be an assumption of a prompt resale of the Mortgaged Property for an all cash sales price by the purchaser at the foreclosure sale (but no later than twelve (12) months following the foreclosure sale) so that no extensive holding period should be factored into the determination of "fair market value" of the Mortgaged Property;
- An offset to the fair market value of the Mortgaged Property as determined hereunder shall be made by deducting from such value the reasonable estimated closing costs relating to the sale of the Mortgaged Property, including but not limited to brokerage commissions, title policy expenses, tax prorations, escrow fees, and other common charges which are incurred by a seller of property;
- The gross fair market value of the Mortgaged Property shall be further discounted to account for any estimated holding costs associated with maintaining the Mortgaged Property pending sale, including, without limitation, utilities expenses, property management fees, taxes and assessments, and other maintenance expenses;
- Any expert opinion testimony given or considered in connection with a determination of the fair market value of the Mortgaged Property must be given by persons having at least five years experience in appraising property similar to the Mortgaged Property and who have conducted and prepared a complete written appraisal of the Mortgaged Property taking into consideration the factors set forth above; and
- After consideration of the factors required by law and those required above, and if not already taken into consideration, an additional discount factor shall be calculated based upon the estimated time it would take to effectuate such sale of the Mortgaged Property so that if appropriate, "fair market value" as so determined is discounted to be as of the date of the foreclosure sale of the Mortgaged Property.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
EXECUTED as of the date first above written.
WESTWAY TERMINAL CINCINNATI LLC, a Delaware limited liability company
By: __/s/ Thomas A. Masilla, Jr.____
Name: Thomas A. Masilla, Jr.
Title: Chief Financial Officer
STATE OF LOUISIANA S
S
PARISH OF ORLEANS S
This instrument was acknowledged before me on February _10___, 2010, by THOMAS A. MASILLA, JR., Chief Financial Officer of WESTWAY TERMINAL CINCINNATI LLC, a Delaware limited liability company, on behalf of said limited liability company.
__/s/ James E.A. Slaton_________
Notary Public, State of Louisiana
James E.A. Slaton
State of Louisiana - Bar No. 27880
My commission is issued for life
CONSOLIDATED LEGAL (SOUTH)
Situated in Section 34, Town 4, Fractional Range 1, Miami Purchase, Storr's Township and Section 4, Town 3, Fractional Range 1, Miami Purchase, Delhi Township, City of Cincinnati, Hamilton County, Ohio, and being all of Lots 7 through 9 of Jane Paul's Subdivision as recorded in Plat Book 1, page 81, all of Lots 1 through 7 and part of Lot 8 of Daniel O. & Allen L. Reeder's Subdivision as recorded in Deed Book 119, Page 398; all of Lots 6 through 10 of Alma L'Hommedieu Estate Subdivision, Plat "A", as recorded in Plat Book 18, Page 67, and being more particularly described as follows:
Commencing at a found P.K. nail at the centerline intersection of Southside Avenue and Idaho Street;
Thence along the centerline of Southside Avenue, South 76° 36' 24" West, 25.00 feet to a point;
Thence leaving said centerline, South 13° 23' 36" East, 25.00 feet to a set 5/8" iron pin with cap in the south right-of-way of Southside Avenue and being the northeast corner of a tract conveyed to The City of Cincinnati in Deed Book 4284, Page 1316, said iron pin also being the Real Place of Beginning;
Thence along the south right-of way line of Southside Avenue and along the north line of said Lots 1 through 9 of said Daniel O. & Allen Reeder's Subdivision, the following three courses:
North 76° 36' 24" East, 1282.57 feet to a set cross notch;
North 00° 51' 36" West, 5.12 feet to a set cross notch;
North 76° 36' 24" East 877.82 feet to a found 5/8" iron pin with cap at the northwest corner of a tract conveyed to Westway Terminal Company, Inc. in Official Record Book 7378, Page 1993;
Thence along the west line of said Westway Terminal Tract, South 13° 23' 36" East, passing a set 5/8" iron pin with cap at 270.00 feet, for a total distance of 543.23 feet to a point in the Ohio-Kentucky State line;
Thence along the Ohio-Kentucky State Line the following 7 courses;
South 77° 25' 49" West, 345.17 feet to a point;
South 79° 35' 11" West 117.91 feet to a point;
South 74° 46' 16" West, 91.65 feet to a point;
South 79° 28' 32" West, 214.42 feet;
South 77° 55' 43" West, 474.86 feet to a point;
South 79° 29' 10" West, 634.85 feet to a point;
South 75° 23' 14" West, 284.14 feet to a point, being the southeast corner of a tract conveyed to the City of Cincinnati in Deed Book 4234, Page 573.
Thence along the east line of said City of Cincinnati tract and the east line of the tract conveyed to the City of Cincinnati by Deed Book 4284, Page 1316, North 13° 23' 36" West, passing a set 5/8" iron pin with cap at 230.13 feet, for a total distance of 482.54 feet to the place of beginning.
Containing 25.3663 acres of land and being subject to all legal highways, easements and restrictions of record.
This description is based on an actual field survey performed by American Land Surveys, Inc., on October 1, 2002 under the supervision of Terry N. Kohler, Ohio Registration No. 6364. The bearing system is based on NAD 83, Ohio State Plane, South Zone (Hamilton County, Ohio, Geodetic Control Monuments).
ALS Job No.: 6924.01
September 24, 2009
CONSOLIDATION LEGAL (NORTH)
Situated in Section 34, Town 4, Fractional Range 1, Storrs Township, and in Section 4, Town 3, Fractional Range 1, Miami Purchase, Delhi Township, City of Cincinnati, Hamilton County, Ohio, and being part of Lot 8 and all of Lots 6, 7, and 9 through 12 of Daniel O. Reeder's Subdivision as recorded in Deed Book 119, Page 532, all of Lots 3 and 4, and part of Lot 2, of Daniel O. and Allen L. Reeder's Subdivision as recorded in Deed Book 119, Page 398, all of Lots 1 through 6 of Jane Paul's Subdivision as recorded in Plat Book 1, Page 81, all of lots 1 through 11 of D.Z. Sedam's Estate Subdivision, Plat "C", as recorded in Plat Book 12, Page 2, all of lots 22, 23, 38 through 42 of D.Z. Sedam's Estate Subdivision, Plat "B", as recorded in Plat Book 12, Page 2, and all of Lots 1 through 5 of Alma L'Hommedieu Estate Subdivision, Plat "A", as recorded in Plat Book 18, Page 67, and being more particularly described as follows:
Commencing at a found P.K. nail at the centerline intersection of Southside Avenue and Idaho Street;
Thence along the centerline of Southside Avenue, North 76° 36' 24" East, 747.38 feet to a point;
Thence leaving said centerline, North 13° 23' 36" West, 25 feet to a set cross notch in the north right-of-way line of Southside Avenue and being in the south line of Lot 3 of Daniel O. & Allen L. Reeder's Subdivision as recorded in Deed Book 119, Page 398, and being the Real Place of Beginning;
Thence along the north right-of-way of Southside Avenue, South 76° 36' 24" West, 702.35 feet to a set cross notch;
Thence 39.02 feet along a non-tangent curve to the right, having a radius of 34.00 feet, the chord of which bears, North 46° 16' 07" West, 36.91 feet to a set cross notch in the east right-of-way of Idaho Street;
Thence along the east right-of-way of Idaho Street and along the west lines of Lots 6 through 8 of said Daniel O Reeder's Subdivision, North 13° 23' 36" West, 147.00 feet to a set 5/8" iron pin with cap at the northwest corner of said Lot 6 and being in the south line of a tract conveyed to CSX Railroad Corporation;
Thence along the south lines of said CSX Railroad Corporation tract the following 19 courses:
North 76° 36' 24" East, 100.00 feet to a set cross notch at the northeast corner of said Lot 6 and being in the west line of Lot 9 of said Daniel O. Reeder's Subdivision:
North 13° 23' 36" West, 35.00 feet to a 5/8" iron pin with cap in the west line of said Lot 9;
North 76° 36' 24" East, 381.04 feet to a set Mag nail;
North 4° 52' 24" East, 15.80 feet to a set 5/8" iron pin with cap;
North 76° 36' 24" East, 153.70 feet to a set 5/8 iron pin with cap;
South 10° 57' 36" East, 25.00 feet to a set cross notch;
North 76° 36' 24" East, 83.75 feet to a set cross notch;
North 10° 57' 36" West, 25.00 feet to a set 5/8" iron pin with cap;
North 76° 36' 24" East, 250.00 feet to a set railroad spike;
South 10° 57' 36" East, 13.00 feet to a set railroad spike;
North 76° 36' 24" East, 39.00 feet to a set railroad spike;
South 10° 57' 36" East, 12.00 feet to a set railroad spike;
North 76° 36' 24" East 79.00 feet to a set cross notch;
North 10° 57' 36" West, 12.00 feet to a set railroad spike;
North 76° 36' 24" East, 80.00 feet to a set railroad spike;
South 10° 57' 36" East, 12.00 feet to a set railroad spike;
North 76° 36' 24" East, 83.05 feet to a set railroad spike;
North 00° 51' 36" West, 17.39 feet to a set railroad spike;
North 76° 36' 24" East, 825.53 feet to a set 5/8" iron pin with cap at the northwest terminus of Mississippi Avenue;
Thence along the west terminus of said Mississippi Avenue, South 13° 23' 36" East, 15.00 feet to a set 5/8" iron pin with cap at the southwest terminus of said Mississippi Avenue and being the northwest corner of Lot 42 of D.Z. Sedam's Estate Subdivision, Plat "B", as recorded in Plat Book 12, Page 2;
Thence along the south line of Mississippi Avenue and the north line of Lots 39 through 42 of said D.Z. Sedam's Estate Subdivision, North 76° 36' 24" East, 125.00 feet to a set 5/8" iron pin with cap at the northeast corner of said Lot 38;
Thence along the east line of Lots 38 and 22 of said D.Z. Sedam's Estate Subdivision South 13° 23' 36" East, 210.00 feet to a set 5/8" iron pin with cap at the southeast corner of said Lot 22 and being in the north right-of-way line of Southside Avenue;
Thence along the north right-of-way line of Southside Avenue the following three courses;
South 76° 36' 24" West, 1000.55 feet to a set cross notch;
North 00° 51' 36" West, 5.12 feet to a set cross notch;
South 76° 36' 24" West, 485.92 feet to the place of beginning.
Containing 11.0245 acres of land and begin subject to all legal highways, easements and restrictions of record.
This description based on an actual field survey performed by American Land Surveys, Inc. on October 1, 2002 under the supervision of Terry N. Kohler, Ohio Registration No. 6364. The bearing system is based on NAD 83, Ohio State Plane, South Zone (Hamilton County, Ohio, Geodetic Control Monuments).
ALS Job No. 6924.01
September 24, 2009
Part of the above description contains Registered Land Certificate No. 224385, Parcels I, II, III, which parcels of Registered Land are more particularly described as follows:
Tract 1:
Situate in Section 4, Town 3, Fractional Range 1, Delhi Township, and being more particularly described as follows:
Beginning at a point in the south line of Southside Avenue, 662.83 feet east of the southeast corner of Southside Avenue and Idaho Street, thence in the south line of Southside Avenue, North 840 30' East, 50 feet; thence South 30 00' East, 365 feet more or less to low mark on the Ohio River, thence down said River, South 840 30' West 50 feet; thence North 30 00' West 365 feet more or less to the place of beginning.
Tract 2:
Situate in Section 4, Town 3, Fractional Range 1, Delhi Township, and being more particularly described as follows:
Beginning at a point in the south line of Southside Avenue, 632.83 feet east of the southeast corner of Southside Avenue and Idaho Street; thence in the south line of Southside Avenue, North 840 30' East, 30 feet; thence South 30 00' East 365.00 feet to the Ohio River; thence with said River, South 840 30' West, 30 feet; thence North 30 00' West, 365.00 feet to the place of beginning.
Tract 3:
Situate in the City of Cincinnati, Ohio and being more particularly described as follows:
Beginning at a point in the south line of Southside Avenue, 515.33 feet east of the southeast corner of Southside Avenue and Idaho Street; thence in the south line of Southside Avenue, North 840 30' East, 47.50 feet; thence South 30 00' East 365.00 feet to the present pool stage of the Ohio River; thence South 840 30' West, 47.50 feet; thence North 30 00' West, 365.00 feet to the place of beginning. Also all that adjoining parcel of land bounded on the north by the above described lot of land on the east and west by the easterly and westerly lines of the above described lot of land produced southwardly to low water mark of the Ohio River and on the south by the low water mark of said River