MORTGAGE
from
WINDSOR DOOR, INC., Mortgagor
to
CANADIAN IMPERIAL BANK OF COMMERCE, Mortgagee
DATED AS OF DECEMBER 4, 1997
After recording, please return to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
a partnership which includes
professional corporations
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxxxx X. Xxxx, Esq.
[Arkansas - Fee]
MORTGAGE
THIS MORTGAGE, dated as of December 4, 1997 is made by WINDSOR DOOR, INC.,
a Delaware corporation ("Mortgagor"), whose address is 0000 Xxxxx Xxxxx Xxxx,
Xxxxxx, Xxxxxxx 00000, to CANADIAN IMPERIAL BANK OF COMMERCE, as administrative
agent for the Lenders referred to below (in such capacity, "Mortgagee"), whose
address is 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. References to this
"Mortgage" shall mean this instrument and any and all renewals, modifications,
amendments, supplements, extensions, consolidations, substitutions, spreaders
and replacements of this instrument.
Background
A. Mortgagor has entered into the Credit Agreement dated as of December 4,
1997 (as the same may be amended, supplemented or otherwise modified from time
to time, the "Credit Agreement") with the several banks and other financial
institutions from time to time parties thereto (the "Lenders") and Mortgagee.
Capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Credit Agreement. References in this Mortgage
to the "Default Rate" shall mean the interest rate provided for in Section
2.12(c) of the Credit Agreement for Base Rate Loans that are overdue.
B. Mortgagor is the owner of the parcel(s) of real property described on
Exhibit A attached (such real property, together with all of the buildings,
improvements, structures and fixtures now or subsequently located thereon (the
"Improvements"), being collectively referred to as the "Real Estate"), which
Real Estate secures payment by Mortgagor to Mortgagee of a maximum principal
amount of $115,000,000.
C. Pursuant to the terms and conditions of the Credit Agreement, the
Mortgagee and the Lenders are and will be making Loans to the Mortgagor and
providing Letters of Credit on behalf of the Mortgagor.
D. The obligations of the Lenders to make the Loans and to issue Letters of
Credit are conditioned upon, among other things, the execution and delivery by
Mortgagor of this Mortgage.
Granting Clauses
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Mortgagor agrees that to secure:
(a) payment of the Obligations; and
(b) the performance and observance of each obligation, term, covenant
and condition to be performed or observed by Mortgagor (the "Performance
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Obligations") under, in connection with or pursuant to the provisions of
the Credit Agreement, any Notes, the Letters of Credit, the Guarantee and
Collateral Agreement, this Mortgage and any of the other Security Documents
or any of the other Loan Documents;
MORTGAGOR HEREBY GRANTS TO MORTGAGEE A LIEN UPON AND A SECURITY INTEREST IN, AND
HEREBY MORTGAGES, GRANTS, ASSIGNS, TRANSFERS AND SETS OVER TO MORTGAGEE WITH
MORTGAGE COVENANTS:
(A) the Real Estate;
(B) all the estate, right, title, claim or demand whatsoever of
Mortgagor, in possession or expectancy, in and to the Real Estate or any
part thereof;
(C) all right, title and interest of Mortgagor in, to and under all
easements, rights of way, gores of land, streets, ways, alleys, passages,
sewer rights, waters, water courses, water and riparian rights, development
rights, air rights, mineral rights and all estates, rights, titles,
interests, privileges, licenses, tenements, hereditaments and appurtenances
belonging, relating or appertaining to the Real Estate, and any reversions,
remainders, rents, issues, profits and revenue thereof and all land lying
in the bed of any street, road or avenue, in front of or adjoining the Real
Estate to the center line thereof;
(D) all of the fixtures, chattels, business machines, machinery,
apparatus, equipment, furnishings, fittings and articles of personal
property of every kind and nature whatsoever, and all appurtenances and
additions thereto and substitutions or replacements thereof (together with,
in each case, attachments, components, parts and accessories) currently
owned or subsequently acquired by Mortgagor and now or subsequently
attached to, or contained in or used or usable in any way in connection
with any operation or letting of the Real Estate, including but without
limiting the generality of the foregoing, all screens, awnings, shades,
blinds, curtains, draperies, artwork, carpets, rugs, storm doors and
windows, furniture and furnishings, heating, electrical, and mechanical
equipment, lighting, switchboards, plumbing, ventilating, air conditioning
and air-cooling apparatus, refrigerating, and incinerating equipment,
escalators, elevators, loading and unloading equipment and systems, stoves,
ranges, laundry equipment, cleaning systems (including window cleaning
apparatus), telephones, communication systems (including satellite dishes
and antennae), televisions, computers, sprinkler systems and other fire
prevention and extinguishing apparatus and materials, security systems,
motors, engines, machinery, pipes, pumps, tanks, conduits, appliances,
fittings and fixtures of every kind and description (all of the foregoing
in this paragraph (D) being referred to as the "Equipment");
(E) all right, title and interest of Mortgagor in and to all
substitutes and replacements of, and all additions and improvements to, the
Real Estate and the Equipment, subsequently acquired by or released to
Mortgagor or constructed, assembled or placed by Mortgagor on the Real
Estate, immediately upon such acquisition, release, construction,
assembling or placement, including, without limitation, any and all
building materials whether stored at the Real Estate or offsite, and, in
each such case, without any further mortgage, conveyance, assignment or
other act by Mortgagor;
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(F) all right, title and interest of Mortgagor in, to and under all
leases, subleases, underlettings, concession agreements, management
agreements, licenses and other agreements relating to the use or occupancy
of the Real Estate or the Equipment or any part thereof, now existing or
subsequently entered into by Mortgagor and whether written or oral and all
guarantees of any of the foregoing (collectively, as any of the foregoing
may be amended, restated, extended, renewed or modified from time to time,
the "Leases"), and all rights of Mortgagor in respect of cash and
securities deposited thereunder and the right to receive and collect the
revenues, income, rents, issues and profits thereof, together with all
other rents, royalties, issues, profits, revenue, income and other benefits
arising from the use and enjoyment of the Mortgaged Property (as defined
below) (collectively, the "Rents");
(G) all unearned premiums under insurance policies now or subsequently
obtained by Mortgagor relating to the Real Estate or Equipment and
Mortgagor's interest in and to all proceeds of any such insurance policies
(including title insurance policies) including the right to collect and
receive such proceeds, subject to the provisions relating to insurance
generally set forth below; and all awards and other compensation, including
the interest payable thereon and the right to collect and receive the same,
made to the present or any subsequent owner of the Real Estate or Equipment
for the taking by eminent domain, condemnation or otherwise, of all or any
part of the Real Estate or any easement or other right therein;
(H) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now owned or held
or subsequently acquired by Mortgagor and described in the foregoing clauses (A)
through (E) are collectively referred to as the "Premises", and those described
in the foregoing clauses (A) through (H) are collectively referred to as the
"Mortgaged Property").
TO HAVE AND TO HOLD the Mortgaged Property and the rights and privileges
hereby mortgaged unto Mortgagee, its successors and assigns for the uses and
purposes set forth, until the Obligations are fully paid and the Performance
Obligations fully performed.
Terms and Conditions
Mortgagor further represents, warrants, covenants and agrees with Mortgagee
as follows:
1. Warranty of Title. Mortgagor warrants that Mortgagor has good title to
the Real Estate in fee simple and good title to, or a valid leasehold interest
in, its other Mortgaged Property, subject only to the matters that are set forth
in Schedule B of the title insurance policy being issued to Mortgagee to insure
the lien of this Mortgage and Section 7.3 of the Credit Agreement (the
"Permitted Exceptions") and Grantor shall warrant, defend and preserve such
title and the lien of this Mortgage thereon against all claims of all persons
and entities. Subject only to the Permitted Exceptions, Mortgagor further
warrants that it has the right to encumber the Mortgaged Property under this
Mortgage.
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2. Payment of Indebtedness. Mortgagor shall pay the Obligations at the
times and places and in the manner specified in the Credit Agreement and shall
perform all the Performance Obligations.
3. Restrictions on Liens and Encumbrances. Except for the lien of this
Mortgage, and except as expressly permitted under the Credit Agreement,
Mortgagor shall not further mortgage, nor otherwise encumber the Mortgaged
Property nor create any lien, charge or encumbrance on the Mortgaged Property,
or any part thereof.
4. Due on Sale and Other Transfer Restrictions. Except as expressly
permitted under the Credit Agreement, Mortgagor shall not sell, transfer, convey
or assign all or any portion of, or any interest in, the Mortgaged Property.
5. Insurance. (a) Mortgagor will maintain, with financially sound and
reputable companies, insurance policies (i) insuring the Inventory, Equipment
and Vehicles against loss by fire, explosion, theft and such other casualties as
may be reasonably satisfactory to Mortgagee and (ii) insuring Mortgagor,
Mortgagee and the Lenders against liability for personal injury and property
damage relating to such Inventory, Equipment and Vehicles, such policies to be
in such form and amounts and having such coverage as may be reasonably
satisfactory to Mortgagee and the Lenders.
(b) All such insurance shall (i) provide that no cancellation, material
reduction in amount or material reduction in coverage thereof shall be effective
until at least 30 days after receipt by Mortgagee of written notice thereof,
(ii) name Mortgagee as insured party or loss payee, (iii) if reasonably
requested by Mortgagee, include a breach of warranty clause and (iv) be
reasonably satisfactory in all other respects to Mortgagee.
(c) Mortgagor shall deliver to Mortgagee and the Lenders a report of a
reputable insurance broker with respect to such insurance during the month of
November in each calendar year and such supplemental reports with respect
thereto as Mortgagee may from time to time reasonably request.
6. Hazardous Material. Section 4.17 of the Credit Agreement is incorporated
herein by reference; provided, however, that all references to "Properties"
shall only mean the "Premises", and all references to "Borrower or any of its
Subsidiaries" shall only mean "Mortgagee."
7. Events of Default. The occurrence of an Event of Default under the
Credit Agreement shall constitute an Event of Default hereunder.
8. Remedies. (a) Upon the occurrence of any Event of Default, Mortgagee may
immediately take such action, without notice or demand, as it deems advisable to
protect and enforce its rights against Mortgagor and in and to the Mortgaged
Property, including, but not limited to, the following actions, each of which
may be pursued concurrently or otherwise, at such time and in such manner as
Mortgagee may determine, in its sole discretion, without impairing or otherwise
affecting the other rights and remedies of Mortgagee:
(i) Mortgagee may, to the extent permitted by applicable law, (A)
institute and
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maintain an action of mortgage foreclosure against all or any part of the
Mortgaged Property, (B) institute and maintain an action on the
Obligations, (C) sell all or part of the Mortgaged Property at one or more
public or private sales and at such times and places upon such terms as
Mortgagee may specify in the notice of sale to be given to Mortgagor or as
may be required by law (Mortgagor expressly granting to Mortgagee the power
of sale, which power of sale shall not be exhausted by one or more such
sales, but shall continue unimpaired until all of the Mortgaged Property
shall have been sold or the Obligations and the Performance Obligations
shall have been fully paid and performed), or (D) take such other action at
law or in equity for the enforcement of this Mortgage or any of the Loan
Documents as the law may allow. Mortgagee may proceed in any such action to
final judgment and execution thereon for all sums due hereunder, together
with interest thereon at the Default Rate and all costs of suit, including,
without limitation, attorneys' fees and disbursements. Interest at the
Default Rate shall be due on any judgment obtained by Mortgagee from the
date of judgment until actual payment is made of the full amount of the
judgment.
(ii) Mortgagee may personally, or by its agents, attorneys and
employees and without regard to the adequacy or inadequacy of the Mortgaged
Property or any other collateral as security for the Obligations and
Performance Obligations enter into and upon the Mortgaged Property and each
and every part thereof and exclude Mortgagor and its agents and employees
therefrom without liability for trespass, damage or otherwise (Mortgagor
hereby agreeing to surrender possession of the Mortgaged Property to
Mortgagee upon demand at any such time) and use, operate, manage, maintain
and control the Mortgaged Property and every part thereof. Following such
entry and taking of possession, Mortgagee shall be entitled, without
limitation, (x) to lease all or any part or parts of the Mortgaged Property
for such periods of time and upon such conditions as Mortgagee may, in its
discretion, deem proper, (y) to enforce, cancel or modify any Lease and (z)
generally to execute, do and perform any other act, deed, matter or thing
concerning the Mortgaged Property as Mortgagee shall deem appropriate as
fully as Mortgagor might do.
(b) The holder of this Mortgage, in any action to foreclose it, shall be
entitled to the appointment of a receiver. In case of a foreclosure sale, the
Real Estate may be sold, at Mortgagee's election, in one parcel or in more than
one parcel and Mortgagee is specifically empowered, (without being required to
do so, and in its sole and absolute discretion) to cause successive sales of
portions of the Mortgaged Property to be held.
(c) In the event of any breach of any of the covenants, agreements, terms
or conditions contained in this Mortgage, any breach of the statutory condition
upon which this Mortgage is made, Mortgagee shall be entitled to enjoin such
breach and obtain specific performance of any covenant, agreement, term or
condition and Mortgagee shall have the right to invoke any equitable right or
remedy as though other remedies were not provided for in this Mortgage.
9. Right of Mortgagee to Credit Sale. Upon the occurrence of any sale made
under this Mortgage, whether made under the power of sale or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale,
Mortgagee may bid for and acquire the Mortgaged Property or any part thereof. In
lieu of paying cash therefor, Mortgagee may make settlement for the purchase
price by crediting upon the Obligations or other sums secured by this
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Mortgage the net sales price after deducting therefrom the expenses of sale and
the cost of the action and any other sums which Mortgagee is authorized to
deduct under this Mortgage.
10. Appointment of Receiver. If an Event of Default shall have occurred and
be continuing or upon any breach of the statutory condition upon which this
Mortgage is made, Mortgagee as a matter of right and without notice to
Mortgagor, unless otherwise required by applicable law, and without regard to
the adequacy or inadequacy of the Mortgaged Property or any other collateral as
security for the Obligations and Performance Obligations or the interest of
Mortgagor therein, shall have the right to apply to any court having
jurisdiction to appoint a receiver or receivers or other manager of the
Mortgaged Property, and Mortgagor hereby irrevocably consents to such
appointment and waives notice of any application therefor (except as may be
required by law). Any such receiver or receivers shall have all the usual powers
and duties of receivers in like or similar cases and all the powers and duties
of Mortgagee in case of entry as provided in this Mortgage, including, without
limitation and to the extent permitted by law, the right to enter into leases of
all or any part of the Mortgaged Property, and shall continue as such and
exercise all such powers until the date of confirmation of sale of the Mortgaged
Property unless such receivership is sooner terminated.
11. Extension, Release, etc. (a) Without affecting the lien or charge of
this Mortgage upon any portion of the Mortgaged Property not then or theretofore
released as security for the full amount of the Obligations, Mortgagee may, from
time to time and without notice, agree to (i) release any person liable for the
Obligations, (ii) extend the maturity or alter any of the terms of the
Obligations or any guaranty thereof, (iii) grant other indulgences, (iv) release
or reconvey, or cause to be released or reconveyed at any time at Mortgagee's
option any parcel, portion or all of the Mortgaged Property, (v) take or release
any other or additional security for any obligation herein mentioned, or (vi)
make compositions or other arrangements with debtors in relation thereto. If at
any time this Mortgage shall secure less than all of the principal amount of the
Obligations, it is expressly agreed that any repayments of the principal amount
of the Obligations shall not reduce the amount of the lien of this Mortgage
until the lien amount shall equal the principal amount of the Obligations
outstanding.
(b) No recovery of any judgment by Mortgagee and no levy of an execution
under any judgment upon the Mortgaged Property or upon any other property of
Mortgagor shall affect the lien of this Mortgage or any liens, rights, powers or
remedies of Mortgagee hereunder, and such liens, rights, powers and remedies
shall continue unimpaired.
(c) If Mortgagee shall have the right to foreclose this Mortgage, Mortgagor
authorizes Mortgagee at its option to foreclose the lien of this Mortgage
subject to the rights of any tenants of the Mortgaged Property. The failure to
make any such tenants parties defendant to any such foreclosure proceeding and
to foreclose their rights will not be asserted by Mortgagor as a defense to any
proceeding instituted by Mortgagee to collect the Obligations or to foreclose
the lien of this Mortgage.
(d) Unless expressly provided otherwise, in the event that ownership of
this Mortgage and title to the Mortgaged Property or any estate therein shall
become vested in the same person or entity, this Mortgage shall not merge in
such title but shall continue as a valid lien on the Mortgaged Property for the
amount secured hereby.
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12. Security Agreement Under Uniform Commercial Code. (a) It is the
intention of the parties hereto that this Mortgage shall constitute a Security
Agreement within the meaning of the Uniform Commercial Code (the "Code") of the
State of Arkansas. If an Event of Default shall occur under this Mortgage, then
in addition to having any other right or remedy available at law or in equity,
Mortgagee shall have the option of either (i) proceeding under the Code and
exercising such rights and remedies as may be provided to a secured party by the
Code with respect to all or any portion of the Mortgaged Property which is
personal property (including, without limitation, taking possession of and
selling such property) or (ii) treating such property as real property and
proceeding with respect to both the real and personal property constituting the
Mortgaged Property in accordance with Mortgagee's rights, powers and remedies
with respect to the real property (in which event the default provisions of the
Code shall not apply). If Mortgagee shall elect to proceed under the Code, then
ten days' notice of sale of the personal property shall be deemed reasonable
notice and the reasonable expenses of retaking, holding, preparing for sale,
selling and the like incurred by Mortgagee shall include, but not be limited to,
attorneys' fees and legal expenses. At Mortgagee's request, Mortgagor shall
assemble the personal property and make it available to Mortgagee at a place
designated by Mortgagee which is reasonably convenient to both parties.
(b) Mortgagor and Mortgagee agree, to the extent permitted by law, that:
(i) all of the goods described within the definition of the word "Equipment" are
or are to become fixtures on the Real Estate; (ii) this Mortgage upon recording
or registration in the real estate records of the proper office shall constitute
a financing statement filed as a "fixture filing" within the meaning of Sections
9-313 and 9-402 of the Code; (iii) Mortgagor is the record owner of the Real
Estate; and (iv) the addresses of Mortgagor and Mortgagee are as set forth on
the first page of this Mortgage.
(c) Mortgagor, upon request by Mortgagee from time to time, shall execute,
acknowledge and deliver to Mortgagee one or more separate security agreements,
in form satisfactory to Mortgagee, covering all or any part of the Mortgaged
Property and will further execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, any financing statement, affidavit,
continuation statement or certificate or other document as Mortgagee may request
in order to perfect, preserve, maintain, continue or extend the security
interest under and the priority of this Mortgage and such security instrument.
Mortgagor further agrees to pay to Mortgagee on demand all costs and expenses
incurred by Mortgagee in connection with the preparation, execution, recording,
filing and re-filing of any such document and all costs and expenses of any
record searches for financing statements Mortgagee shall require. If Mortgagor
shall fail to furnish any financing or continuation statement within 10 days
after request by Mortgagee, then pursuant to the provisions of the Code,
Mortgagor hereby authorizes Mortgagee, without the signature of Mortgagor, to
execute and file any such financing and continuation statements. The filing of
any financing or continuation statements in the records relating to personal
property or chattels shall not be construed as in any way impairing the right of
Mortgagee to proceed against any personal property encumbered by this Mortgage
as real property, as set forth above.
13. Assignment of Rents. Mortgagor hereby assigns to Mortgagee the Rents as
further security for the payment of the Obligations and performance of the
Performance Obligations, and Mortgagor grants to Mortgagee the right to enter
the Mortgaged Property for the purpose of collecting the same and to let the
Mortgaged Property or any part thereof, and to apply
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the Rents on account of the Obligations. The foregoing assignment and grant is
present and absolute and shall continue in effect until the Obligations are paid
in full, but Mortgagee hereby waives the right to enter the Mortgaged Property
for the purpose of collecting the Rents and Mortgagor shall be entitled to
collect, receive, use and retain the Rents until the occurrence of an Event of
Default under this Mortgage; such right of Mortgagor to collect, receive, use
and retain the Rents may be revoked by Mortgagee upon the occurrence of any
Event of Default under this Mortgage by giving not less than five days' written
notice of such revocation to Mortgagor; in the event such notice is given,
Mortgagor shall pay over to Mortgagee, or to any receiver appointed to collect
the Rents, any lease security deposits, and shall pay monthly in advance to
Mortgagee, or to any such receiver, the fair and reasonable rental value as
determined by Mortgagee for the use and occupancy of the Mortgaged Property or
of such part thereof as may be in the possession of Mortgagor or any affiliate
of Mortgagor, and upon default in any such payment Mortgagor and any such
affiliate will vacate and surrender the possession of the Mortgaged Property to
Mortgagee or to such receiver, and in default thereof may be evicted by summary
proceedings or otherwise. Mortgagor shall not accept prepayments of installments
of Rent to become due for a period of more than one month in advance (except for
security deposits and estimated payments of percentage rent, if any).
14. Notices. All notices, requests, demands and other communications
hereunder shall be given in accordance with the provisions of subsection 10.2 of
the Credit Agreement to Mortgagor and to Mortgagee as specified therein.
15. No Oral Modification. This Mortgage may not be amended, supplemented or
otherwise modified except in accordance with the provisions of subsection 7.15
of the Credit Agreement. Any agreement made by Mortgagor and Mortgagee after the
date of this Mortgage relating to this Mortgage shall be superior to the rights
of the holder of any intervening or subordinate lien or encumbrance.
16. Partial Invalidity. In the event any one or more of the provisions
contained in this Mortgage shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, but each shall be construed as if
such invalid, illegal or unenforceable provision had never been included.
Notwithstanding to the contrary anything contained in this Mortgage or in any
provisions of the Obligations or Loan Documents, the obligations of Mortgagor
and of any other obligor under the Obligations or Loan Documents shall be
subject to the limitation that Mortgagee shall not charge, take or receive, nor
shall Mortgagor or any other obligor be obligated to pay to Mortgagee, any
amounts constituting interest in excess of the maximum rate permitted by law to
be charged by Mortgagee.
17. Mortgagor's Waiver of Rights. To the fullest extent permitted by law,
Mortgagor waives the benefit of all laws now existing or that may subsequently
be enacted providing for (i) any appraisement before sale of any portion of the
Mortgaged Property, (ii) any extension of the time for the enforcement of the
collection of the Indebtedness or the creation or extension of a period of
redemption from any sale made in collecting such debt and (iii) exemption of the
Mortgaged Property from attachment, levy or sale under execution or exemption
from civil process. To the full extent Mortgagor may do so, Mortgagor agrees
that Mortgagor will not at any time insist upon, plead, claim or take the
benefit or advantage of any
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law now or hereafter in force providing for any appraisement, valuation, stay,
exemption, extension or redemption, or requiring foreclosure of this Mortgage
before exercising any other remedy granted hereunder and Mortgagor, for
Mortgagor and its successors and assigns, and for any and all persons ever
claiming any interest in the Mortgaged Property, to the extent permitted by law,
hereby waives and releases all rights of redemption, valuation, appraisement,
stay of execution, notice of election to mature or declare due the whole of the
secured indebtedness and marshalling in the event of foreclosure of the liens
hereby created.
18. Remedies Not Exclusive. Mortgagee shall be entitled to enforce payment
of the Obligations and performance of the Performance Obligations and to
exercise all rights and powers under this Mortgage or under any of the other
Loan Documents or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Obligations and Performance Obligations may
now or hereafter be otherwise secured, whether by mortgage, security agreement,
pledge, lien, assignment or otherwise. Neither the acceptance of this Mortgage
nor its enforcement, shall prejudice or in any manner affect Mortgagee's right
to realize upon or enforce any other security now or hereafter held by
Mortgagee, it being agreed that Mortgagee shall be entitled to enforce this
Mortgage and any other security now or hereafter held by Mortgagee in such order
and manner as Mortgagee may determine in its absolute discretion. No remedy
herein conferred upon or reserved to Mortgagee is intended to be exclusive of
any other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute. Every power or remedy
given by any of the Loan Documents to Mortgagee or to which it may otherwise be
entitled, may be exercised, concurrently or independently, from time to time and
as often as may be deemed expedient by Mortgagee. In no event shall Mortgagee,
in the exercise of the remedies provided in this Mortgage (including, without
limitation, in connection with the assignment of Rents to Mortgagee, or the
appointment of a receiver and the entry of such receiver on to all or any part
of the Mortgaged Property), be deemed a "mortgagee in possession," and Mortgagee
shall not in any way be made liable for any act, either of commission or
omission, in connection with the exercise of such remedies.
19. Multiple Security. If (a) the Premises shall consist of one or more
parcels, whether or not contiguous and whether or not located in the same
county, or (b) in addition to this Mortgage, Mortgagee shall now or hereafter
hold one or more additional mortgages, liens, deeds of trust or other security
(directly or indirectly) for the Obligations upon other property in the State of
Arkansas (whether or not such property is owned by Mortgagor or by others) or
(c) both the circumstances described in clauses (a) and (b) shall be true, then
to the fullest extent permitted by law, Mortgagee may, at its election, commence
or consolidate in a single foreclosure action all foreclosure proceedings
against all such collateral securing the Obligations (including the Mortgaged
Property), which action may be brought or consolidated in the courts of any
county in which any of such collateral is located. Mortgagor acknowledges that
the right to maintain a consolidated foreclosure action is a specific inducement
to Mortgagee to extend the Obligations, and Mortgagor expressly and irrevocably
waives any objections to the commencement or consolidation of the foreclosure
proceedings in a single action and any objections to the laying of venue or
based on the grounds of forum non conveniens which it may now or hereafter have.
Mortgagor further agrees that if Mortgagee shall be prosecuting one or more
foreclosure or other proceedings against a portion of the Mortgaged Property or
against any collateral other than the Mortgaged Property, which collateral
directly or indirectly secures the Obligations, or if Mortgagee shall have
obtained a judgment of foreclosure and sale or similar
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judgment against such collateral, then, whether or not such proceedings are
being maintained or judgments were obtained in or outside the State of Arkansas,
Mortgagee may commence or continue foreclosure proceedings and exercise its
other remedies granted in this Mortgage against all or any part of the Mortgaged
Property and Mortgagor waives any objections to the commencement or continuation
of a foreclosure of this Mortgage or exercise of any other remedies hereunder
based on such other proceedings or judgments, and waives any right to seek to
dismiss, stay, remove, transfer or consolidate either any action under this
Mortgage or such other proceedings on such basis. Neither the commencement nor
continuation of proceedings to foreclose this Mortgage nor the exercise of any
other rights hereunder nor the recovery of any judgment by Mortgagee in any such
proceedings shall prejudice, limit or preclude Mortgagee's right to commence or
continue one or more foreclosure or other proceedings or obtain a judgment
against any other collateral (either in or outside the State of Arkansas) which
directly or indirectly secures the Obligations, and Mortgagor expressly waives
any objections to the commencement of, continuation of, or entry of a judgment
in such other proceedings or exercise of any remedies in such proceedings based
upon any action or judgment connected to this Mortgage, and Mortgagor also
waives any right to seek to dismiss, stay, remove, transfer or consolidate
either such other proceedings or any action under this Mortgage on such basis.
It is expressly understood and agreed that to the fullest extent permitted by
law, Mortgagee may, at its election, cause the sale of all collateral which is
the subject of a single foreclosure action at either a single sale or at
multiple sales conducted simultaneously and take such other measures as are
appropriate in order to effect the agreement of the parties to dispose of and
administer all collateral securing the Obligations (directly or indirectly) in
the most economical and least time-consuming manner.
20. Successors and Assigns. All covenants of Mortgagor contained in this
Mortgage are imposed solely and exclusively for the benefit of Mortgagee and its
successors and assigns, and no other person or entity shall have standing to
require compliance with such covenants or be deemed, under any circumstances, to
be a beneficiary of such covenants, any or all of which may be freely waived in
whole or in part by Mortgagee at any time if in its sole discretion it deems
such waiver advisable. All such covenants of Mortgagor shall run with the land
and bind Mortgagor, the successors and assigns of Mortgagor (and each of them)
and all subsequent owners, encumbrancers and tenants of the Mortgaged Property,
and shall inure to the benefit of Mortgagee, its successors and assigns. The
word "Mortgagor" shall be construed as if it read "Mortgagors" whenever the
sense of this Mortgage so requires and if there shall be more than one
Mortgagor, the obligations of the Mortgagors shall be joint and several.
21. No Waivers, etc. Any failure by Mortgagee to insist upon the strict
performance by Mortgagor of any of the terms and provisions of this Mortgage
shall not be deemed to be a waiver of any of the terms and provisions hereof,
and Mortgagee, notwithstanding any such failure, shall have the right thereafter
to insist upon the strict performance by Mortgagor of any and all of the terms
and provisions of this Mortgage to be performed by Mortgagor. Mortgagee may
release, regardless of consideration and without the necessity for any notice to
or consent by the holder of any subordinate lien on the Mortgaged Property, any
part of the security held for the obligations secured by this Mortgage without,
as to the remainder of the security, in any wise impairing or affecting the lien
of this Mortgage or the priority of such lien over any subordinate lien.
22. Governing Law, etc. This Mortgage shall be governed by and construed in
11
accordance with the laws of the State of Arkansas, except that Mortgagor
expressly acknowledges that by its terms the Credit Agreement and any obligation
arising thereunder shall be governed and construed in accordance with the laws
of the State of New York, without regard to principles of conflict of law, and
for purposes of consistency, Mortgagor agrees that in any in personam proceeding
related to this Mortgage the rights of the parties to this Mortgage shall also
be governed by and construed in accordance with the laws of the State of New
York governing contracts made and to be performed in that State, without regard
to principles of conflict of law.
23. Certain Definitions. Unless the context clearly indicates
a contrary intent or unless otherwise specifically provided herein, words used
in this Mortgage shall be used interchangeably in singular or plural form and
the word "Mortgagor" shall mean "each Mortgagor or any subsequent owner or
owners of the Mortgaged Property or any part thereof or interest therein," the
word "Mortgagee" shall mean "Mortgagee or any successor agent for the Lenders,"
the word "Notes" or "Guarantee and Collateral Agreement" shall include any other
evidence of indebtedness secured by this Mortgage" and the words "Mortgaged
Property" shall include any portion of the Mortgaged Property or interest
therein. Whenever the context may require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns and pronouns shall include the plural and vice versa. The captions
in this Mortgage are for convenience or reference only and in no way limit or
amplify the provisions hereof.
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This Mortgage has been duly executed by Mortgagor on the date first above
written.
WINDSOR DOOR, INC.
By: /s/ R. XXXXXXX XXXXXXXX, XX.
-----------------------------
R. Xxxxxxx Xxxxxxxx, Xx.
Executive Vice President
Signed, Sealed and Delivered
in our Presence:
___________________________ Attest: /s/ XXXXXXX X. XXXXXXXX
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Secretary
___________________________
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the ____ day of December, 1997, before me personally came R. Xxxxxxx
Xxxxxxxx, Xx., to me known, who, being by me duly sworn, did depose and say that
he resides at _____________________________________; that he is Executive Vice
President and Chief Financial Officer of Windsor Door, Inc., the corporation
described in and which executed the foregoing instrument; and that he signed his
name thereto by authority of the board of directors of said corporation; and
that ______________ personally came before me this day and acknowledged that he
is the _________ Secretary of Windsor Door, Inc., and that by authority duly
given and as the act of the corporation, the foregoing instrument was signed in
its name by its _________________ and attested by him as its _______ Secretary.
WITNESS my hand and seal as such Notary Public on this ____th day of
December, 1997.
_________________________________
Notary Public
[Notarial Stamp]
Schedule A
Description of the Premises
[Attach Legal Description of all parcels]
