HomeMy WebLinkAboutC.054.93011_0454whole or any part of its property (with or without the consent of the County) and such receiver is
not discharged within ninety (90) consecutive days after his appointment; or becomes the subject
of an "order for relief' within the meaning of the United States Bankruptcy Code; or files an
answer to a creditor's petition admitting the material allegations thereof for liquidation,
reorganization, readjustment or composition or to effect a plan or other arrangement with
creditors or fail to have such petition dismissed within sixty (60) consecutive days after the same
is filed against the County; or
the County adopts a budget for any fiscal year during the term of this Agreement which does not
include moneys suf cient to pay all Installment Payments and the reasonably estimated
Additional Payments coming due hereunder for that fiscal year; or amends a previously adopted
budget to defer the finds to make such payments; or
the County fails to provide the Lender with its annual audited financial statement within 270
days from the end of each fiscal year during the Term and such failure is not cured within thirty
(30) days notice of the same.
(b) The provisions of the foregoing subparagraph (a)(ii) are subject to the limitation
that if by reason of force majeure the County is unable in whole or in part to perform any of its
covenants, conditions or agreements hereunder other than in Section 2.2, Section 4.3, Section
4.6, Section 4.7, Section 4.9 and Section 4.10 hereof, the County shall not be deemed in default
during the continuance of such inability. The term "force majeure" as used herein shall include
without limitation acts of God; strikes, lockouts or other industrial disturbances; acts of public
enemies; orders of any kind of the government of the United States of America or the State of
North Carolina or any political subdivision thereof or any of their departments, agencies or
officials, or any civil or military authority; insurrections; riots; epidemics; landslides; lightning;
earthquakes; fires; hurricanes; tornadoes; storms; floods; washouts; droughts; arrests; restraint of
government and people; civil disturbances; explosions; breakage or accident to machinery,
transmission pipes or canals; partial or entire failure of utilities; or any other cause or event not
reasonably within the control of the County. The County shall remedy with all reasonable
dispatch the cause or causes preventing the County from carrying out its covenants, conditions
and agreements, provided that the settlement of strikes, lockouts and other industrial disturbances
shall be entirely within the discretion of the County, and the County shall not be required to
make settlement of strikes, lockouts and other industrial disturbances by acceding to the demands
of any opposing party when such course is in the judgment of the County not in its best interests.
Remedies. To the extent permitted by law, whenever any event of default shall have happened
and is continuing, the Lender may take any one or more of the following remedial steps, without
further demand or notice: (a) declare the whole unpaid principal balance of Installment
Payments due and thereafter to become at once due and payable; (b) exercise its rights as a
secured party under the Uniform Commercial Code of the State, and as a beneficiary under the
Deed of Trust, including taking possession of any part or all of the Project pursuant to the Deed
of Trust, with or without terminating this Agreement, excluding the County from possession, and
selling or leasing the Project for the account of the County; or (c) proceed by appropriate court
action to enforce performance by the County of the applicable covenants of this Agreement or to
recover for the breach thereof, provided, however, that nothing herein shall be deemed to allow
any judgment for a deficiency or waive any provision of N.C.G.S. Section 160A-20 or any
defense the County may otherwise have. In any of such cases, all rights acquired by the County
hereunder shall revert to and revest in the Lender without any act of re-entry, or any other act of
the Lender having to be performed and without the County having any right of return,
reclamation or compensation for moneys paid under this Agreement as absolutely, fully and
perfectly as if this Agreement and such payments had never been made; and in case of such
default all payments theretofore made on this Agreement are to be retained by and belong to the
Lender as the agreed and reasonable repayment of the financing for the Project up to the time of
such default. Any amounts received by the Lender pursuant to the foregoing provisions shall be
applied first to the payment of costs incurred by the Lender or Trustee in taking any remedial
steps pursuant to this Section, then to any unpaid interest and then to repayment of principal, and
upon payment in full of all amounts due, any excess shall be paid to the County.
No Deficiency Judgment. Notwithstanding any other provisions herein, it is the intent of the
parties hereto to comply with North Carolina General Statutes Section 160A-20. No deficiency
judgment requiring the payment of money may be entered against the County in favor of the
Lender or any other person in violation of Section 160A-20 including, without limitation, any
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