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EXHIBIT 10.3
This Document Prepared By
and After Recording Return To:
Xxxxxx X. Xxxxx
Xxxxxxx and Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
SPACE ABOVE THIS LINE RESERVED
FOR RECORDER'S USE ONLY
MORTGAGE AND SECURITY AGREEMENT WITH
ASSIGNMENT OF RENTS
This Mortgage and Security Agreement with Assignment of Rents dated as
of ___________, 1998 from Xxxxxxx Xxxxxx, Inc., an Iowa corporation with its
principal place of business and mailing address at 00 00xx Xxxxxx Xxxxx,
Xxxxxxxxx, Xxxx 00000 (hereinafter referred to as the "Mortgagor") to Xxxxxx
Trust and Savings Bank, an Illinois banking corporation with its principal place
of business and mailing address at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000 ("Xxxxxx"), as agent hereunder for the Secured Creditors hereinafter
identified and defined (Xxxxxx acting as such agent and any successor or
successors to Xxxxxx in such capacity being hereinafter referred to as the
"Mortgagee");
WITNESSETH THAT:
WHEREAS, Xxxxxx Industrial Group, Inc. (the "Borrower") has entered
into with Xxxxxx (individually and as agent for the Lenders identified and
defined below) that certain Credit Agreement dated as of May 29, 1998 (such
Credit Agreement as the same may from time to time be modified, amended or
restated being hereinafter referred to as the "Credit Agreement") pursuant to
which Xxxxxx and the other lenders named therein and which may thereafter become
parties thereto (Xxxxxx and such other lenders being herein referred to
collectively as the "Lenders" and individually as a "Lender") committed, subject
to certain terms and conditions, (i) to make a revolving credit facility
available to the Borrower in the form of loans and letters of credit (the
"Revolving Credit") in the aggregate principal amount not to exceed $35,000,000
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any one time outstanding during the period ending on May 31, 2003 (the
"Termination Date") with all loans made under the Revolving Credit being
repayable on the Termination Date and (ii) to make term loans in the aggregate
principal amount of $25,000,000 (in the case of Term A Loan) and $30,000,000 (in
the case of Term B Loan) to Mortgagor payable in installments with a final
maturity of all principal and interest not required to be sooner paid of May 31,
2003 (in the case of Term A Loan) and May 31, 2005 (in the case of Term B Loan)
(the "Term Loans"), a true and correct copy of which Credit Agreement is on file
at the offices of the Mortgagee; and
WHEREAS, advances from time to time made under the Revolving Credit are
evidenced by Revolving Credit Notes (such Revolving Credit Notes and any
extensions thereof or modifications thereto and any and all notes issued in
renewal thereof or in substitution or replacement therefor being hereinafter
referred to as the "Revolving Credit Notes") aggregating $35,000,000 in face
principal amount and payable to the order of the respective Lenders named
thereon, whereby the Borrower promises to pay the advances evidenced thereby on
or before the Termination Date with interest and premium as set forth in the
Credit Agreement; and
WHEREAS, the Term Loans are evidenced by Term Notes (the "Term Notes")
aggregating $25,000,000 (in the case of Term A Loan) and $30,000,000 (in the
case of Term B Loan) in principal amount and payable to the order of the
respective Lenders named thereon, whereby the Borrower promises to pay the term
loans evidenced thereby, with interest and premium as set forth in the Credit
Agreement, in installments with a final maturity of all principal and interest
and premium not required to be sooner paid of May 31, 2003 (in the case of Term
A Loan) and May 31, 2005 (in the case of Term B Loan); and
WHEREAS, pursuant to the terms of the Credit Agreement, any Lender or
Lenders may, from time to time, assign to other Lenders portions of the
indebtedness evidenced by the Notes then owned by such assigning Lender together
with an equivalent proportion of such assigning Lender's obligation to make
advances under the Credit Agreement (each such assignment being hereinafter
referred to as an "Assignment"); and
WHEREAS, in the event of each Assignment under the Credit Agreement,
the Borrower has agreed pursuant to the terms of the Credit Agreement to execute
and deliver to each new assignee Lender by reason of such Assignment, new Notes
evidencing that portion of the indebtedness so assigned to such new assignee
Lender and advances to be thereafter made by such new assignee Lender pursuant
to the Credit Agreement and to execute new Notes to such assigning Lender
evidencing the portion of such indebtedness not so assigned and advances to be
thereafter made by such assigning Lender pursuant to the Credit Agreement; and
WHEREAS, it is the intention of the Mortgagor that all such Notes
constitute "Notes" for the purposes hereof and to be secured hereby; and
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WHEREAS, pursuant to the terms of the Credit Agreement, the Mortgagee
may from time to time issue letters of credit (the "Letters of Credit") for the
account of the Borrower in an aggregate face amount not to exceed $10,000,000
and with expiry dates on or before the Termination Date, and which Letters of
Credit, when combined with the principal amount of loans outstanding under the
Revolving Credit from time to time, shall not exceed $35,000,000;
WHEREAS, the Borrower may from time to time enter into one or more
interest rate exchange, cap, collar, floor or other agreements with one or more
of the Lenders party to the Credit Agreement, or their affiliates, for the
purpose of hedging or otherwise protecting the Borrower against changes in
interest rates (the liability of the Borrower in respect of such agreements with
such Lenders and their affiliates being hereinafter referred to as the "Hedging
Liability") (the affiliate of the Lenders to which any Hedging Liability is
owed, together with the Lenders and the Mortgagee, being collectively referred
to herein as the "Secured Creditors"); and
NOW, THEREFORE, in order to secure (i) payment of all principal of and
interest and premium on the Notes (ratably among the Notes without preference or
priority to one over the others) as and when the same become due and payable
(whether by lapse of time, acceleration or otherwise) and all advances now or
hereafter evidenced thereby, (ii) the payment and performance of all obligations
arising under any applications executed by the Borrower in connection with any
of the Letters of Credit, including the obligation of the Borrower to reimburse
the Mortgagee for any draws under the Letters of Credit, (iii) payment of all
fees and charges payable by the Borrower under the terms of the Credit
Agreement, (iv) any and all liability of the Borrower arising under or in
connection with or otherwise evidenced by agreements with any one or more of the
Secured Creditors with respect to any Hedging Liability; (v) payment of all
other sums at any time due or owing from or required to be paid by the Borrower
under the terms of the Mortgage and the performance and observance of all the
covenants and agreements in the Mortgage provided to be performed or observed by
the Mortgagor, and (vi) the performance and observance of all covenants and
agreements contained in the Mortgage or in the Notes or in the Credit Agreement
or in any other instrument or document at any time evidencing or securing any of
the foregoing indebtedness, obligations or liabilities or setting forth terms
and conditions applicable thereto (all of such indebtedness, obligations and
liabilities referred to in clauses (i), (ii), (iii), (iv), (v) and (vi) above
being hereinafter collectively referred to as the "indebtedness hereby
secured"), Mortgagor does hereby grant, bargain, sell, convey, mortgage,
warrant, assign, and pledge unto the Mortgagee, its successors and assigns, and
grant to the Mortgagee, its successors and assigns a security interest in all
and singular the properties, rights, interests and privileges described in
Granting Clauses I, II, III, IV, V and VI below, all of the same being
collectively referred to herein as the "Mortgaged Premises":
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GRANTING CLAUSE I
That certain real estate lying and being in the County of Worth in the
State of Iowa, more particularly described in Schedule I attached hereto and
made a part hereof.
GRANTING CLAUSE II
All buildings and improvements of every kind and description heretofore
or hereafter erected or placed on the property described in Granting Clause I
and all materials intended for construction, reconstruction, alteration and
repairs of the buildings and improvements now or hereafter erected thereon, all
of which materials shall be deemed to be included within the premises
immediately upon the delivery thereof to the said real estate, and all fixtures,
machinery, apparatus, equipment, fittings and articles of personal property of
every kind and nature whatsoever now or hereafter attached to or contained in or
used or useful in connection with said real estate and the buildings and
improvements now or hereafter located thereon and the operation, maintenance and
protection thereof, including but not limited to all machinery, motors,
fittings, radiators, awnings, shades, screens, all gas, coal, steam, electric,
oil and other heating, cooking, power and lighting apparatus and fixtures, all
fire prevention and extinguishing equipment and apparatus, all cooling and
ventilating apparatus and systems, all plumbing, incinerating, and sprinkler
equipment and fixtures, all elevators and escalators, all communication and
electronic monitoring equipment, all window and structural cleaning rigs and all
other machinery and equipment of every nature and fixtures and appurtenances
thereto and all items of furniture, appliances, draperies, carpets, other
furnishings, equipment and personal property used or useful in the operation,
maintenance and protection of the said real estate and the buildings and
improvements now or hereafter located thereon and all renewals or replacements
thereof or articles in substitution therefor or insurance proceeds relating
thereto, whether or not the same are or shall be attached to said real estate,
buildings or improvements in any manner, and all proceeds thereof; it being
mutually agreed, intended and declared that all the aforesaid property shall, so
far as permitted by law, be deemed to form a part and parcel of the real estate
and for the purpose of this Mortgage to be real estate and covered by this
Mortgage; and as to the balance of the property aforesaid, this Mortgage is
hereby deemed to be as well a Security Agreement under the provisions of the
Uniform Commercial Code for the purpose of creating hereby a security interest
in said property, which is hereby granted by Mortgagor as debtor to Mortgagee as
secured party, securing the indebtedness hereby secured. The addresses of
Mortgagor (debtor) and Mortgagee (secured party) appear at the beginning hereof.
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GRANTING CLAUSE III
All right, title and interest of Mortgagor now owned or hereafter
acquired in and to all and singular the estates (including without limitation
leasehold estates), leases, tenements, hereditaments, privileges, easements,
licenses, franchises, appurtenances and royalties, mineral, oil, and water
rights belonging or in any wise appertaining to the property described in the
preceding Granting Clause I and the buildings and improvements now or hereafter
located thereon and the reversions, rents, issues, revenues and profits thereof
and insurance proceeds therefrom, including all interest of Mortgagor in all
rents, issues and profits of and insurance proceeds from the aforementioned
property and all rents, issues, profits, revenues, royalties, bonuses, rights
and benefits due, payable or accruing (including all deposits of money as
advanced rent or for security) under any and all leases or subleases and
renewals thereof of, or under any contracts or options for the sale of all or
any part of, said property (including during any period allowed by law for the
redemption of said property after any foreclosure or other sale), together with
the right, but not the obligation, to collect, receive and receipt for all such
rents and other sums and apply them to the indebtedness hereby secured and to
demand, xxx for and recover the same when due or payable; provided that the
assignments made hereby shall not impair or diminish the obligations of
Mortgagor under the provisions of such leases or other agreements nor shall such
obligations be imposed upon Mortgagee. By acceptance of this Mortgage, Mortgagee
agrees, not as a limitation or condition hereof, but as a personal covenant
available only to Mortgagor that until an event of default (as hereinafter
defined) shall occur giving Mortgagee the right to foreclose this Mortgage,
Mortgagor may collect, receive (but not more than 30 days in advance) and enjoy
such rents.
GRANTING CLAUSE IV
All judgments, awards of damages, settlements and other compensation
heretofore or hereafter made resulting from condemnation proceedings or the
taking of the property described in Granting Clause I or any part thereof or any
building or other improvement now or at any time hereafter located thereon or
any easement or other appurtenance thereto under the power of eminent domain, or
any similar power or right (including any award from the United States
Government at any time after the allowance of the claim therefor, the
ascertainment of the amount thereof and the issuance of the warrant for the
payment thereof), whether permanent or temporary, or for any damage (whether
caused by such taking or otherwise) to said property or any part thereof or the
improvements thereon or any part thereof, or to any rights appurtenant thereto,
including severance and consequential damage, and any award for change of grade
of streets (collectively "Condemnation Awards").
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GRANTING CLAUSE V
All property and rights, if any, which are by the express provisions of
this instrument required to be subjected to the lien hereof and any additional
property and rights that may from time to time hereafter, by installation or
writing of any kind, be subjected to the lien hereof by Mortgagor or by anyone
in Mortgagor's behalf.
GRANTING CLAUSE VI
All rights in and to common areas and access roads on adjacent
properties heretofore or hereafter granted to Mortgagor and any after-acquired
title or reversion in and to the beds of any ways, roads, streets, avenues and
alleys adjoining the property described in Granting Clause I or any part
thereof.
TO HAVE AND TO HOLD the Mortgaged Premises and the properties, rights
and privileges hereby granted, bargained, sold, conveyed, mortgaged, warranted,
pledged and assigned, and in which a security interest is granted, or intended
so to be, unto Mortgagee, its successors and assigns, forever; provided,
however, that this instrument is upon the express condition that if the
principal of and interest on the Notes shall be paid in full and all other
indebtedness hereby secured shall be fully paid and performed and no Letters of
Credit shall remain outstanding, then this instrument and the estate and rights
hereby granted shall cease, determine and be void and this instrument shall be
released by Mortgagee upon the written request and at the expense of Mortgagor,
otherwise to remain in full force and effect.
It is expressly understood and agreed that the indebtedness hereby
secured will in no event exceed two hundred percent (200%) of (i) the total face
amount of the Notes and the Letters of Credit plus (ii) the total interest which
may hereafter accrue under the Notes and the Reimbursement Obligations (as
defined in the Credit Agreement) on such face amount plus (iii) any fees, costs
or expenses which may be payable hereunder or under the Credit Agreement.
Mortgagor hereby covenants and agrees with Mortgagee as follows:
1. Payment of the Indebtedness. The indebtedness hereby
secured will be promptly paid as and when the same becomes due without
any relief whatever from valuation or appraisement laws of the State of
Iowa.
2. Binding Obligation and Further Assurances. This Mortgage
and all other documents, instruments and agreements executed in
connection herewith are valid and binding obligations of Mortgagor,
enforceable in accordance with their respective terms.
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Mortgagor will execute and deliver such further instruments and do such
further acts as may be necessary or proper to carry out more
effectively the purpose of this instrument and, without limiting the
foregoing, to make subject to the lien hereof any property agreed to be
subjected hereto or covered by the Granting Clauses hereof or intended
so to be.
3. Ownership of the Mortgaged Premises. Mortgagor covenants
and warrants that it is lawfully seized of and has good and marketable
fee title to the Mortgaged Premises free and clear of all liens,
charges and encumbrances whatsoever except those exceptions to title
listed on Schedule II attached hereto (the "Permitted Exceptions") and
Mortgagor has good right, full power and authority to convey, transfer
and mortgage the same to Mortgagee for the uses and purposes set forth
in this Mortgage; and Mortgagor will warrant and forever defend the
title to the Mortgaged Premises subject to the Permitted Exceptions
against all claims and demands whatsoever.
4. Possession. Provided no event of default has occurred and
is continuing hereunder, Mortgagor shall be suffered and permitted to
remain in full possession, enjoyment and control of the Mortgaged
Premises, subject always to the observance and performance of the terms
of this instrument.
5. Payment of Taxes. Mortgagor shall pay before any penalty
attaches, all general taxes and all special taxes, special assessments,
water, drainage and sewer charges and all other charges of any kind
whatsoever, ordinary or extraordinary, which may be levied, assessed,
imposed or charged on or against the Mortgaged Premises or any part
thereof and which, if unpaid, might by law become a lien or charge upon
the Mortgaged Premises or any part thereof, and shall, upon written
request, exhibit to Mortgagee official receipts evidencing such
payments, except that, unless and until foreclosure, distraint, sale or
other similar proceedings shall have been commenced, no such charge or
claim need be paid if being contested (except to the extent any full or
partial payment shall be required by law), after notice to Mortgagee,
by appropriate proceedings which shall operate to prevent the
collection thereof or the sale or forfeiture of the Mortgaged Premises
or any part thereof to satisfy the same, conducted in good faith and
with due diligence and if Mortgagor shall have furnished such security,
if any, as may be required in the proceedings or requested by
Mortgagee.
6. Payment of Taxes on Notes, Letters of Credit, Mortgage or
Interest of Mortgagee or Secured Creditors. Mortgagor agrees that if
any tax, assessment or imposition upon this Mortgage or the
indebtedness hereby secured or the Notes or any of the Letters of
Credits or the interest of Mortgagee or any Secured Creditor in the
Mortgaged Premises or upon Mortgagee or any Secured Creditor by reason
of or as a
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holder of any of the foregoing (including, without limitation, excise
taxes, but excepting therefrom any income tax on interest payments on
the principal portion of the indebtedness hereby secured imposed by the
United States or any state) is levied, assessed or charged, then,
unless all such taxes are paid by Mortgagor to, for or on behalf of
Mortgagee or any Secured Creditor as they become due and payable (which
Mortgagor agrees to do upon demand of Mortgagee, to the extent
permitted by law), or Mortgagee or any Secured Creditor is reimbursed
for any such sum advanced by Mortgagee, all sums hereby secured shall
become immediately due and payable, at the option of Mortgagee upon 30
days' notice to Mortgagor, notwithstanding anything contained herein or
in any law heretofore or hereafter enacted, including any provision
thereof forbidding Mortgagor from making any such payment. Mortgagor
agrees to exhibit to Mortgagee, upon request, official receipts showing
payment of all taxes and charges which Mortgagor is required to pay
hereunder.
7. Recordation and Payment of Taxes and Expenses Incident
Thereto. Mortgagor will maintain and preserve the lien of this Mortgage
until all indebtedness hereby secured has been paid and satisfied in
full. Without limiting the foregoing, Mortgagor will cause this
Mortgage, all mortgages supplemental hereto and any financing statement
or other notice of a security interest required by Mortgagee at all
times to be kept, recorded and filed at its own expense in such manner
and in such places as may be required by law for the recording and
filing or for the rerecording and refiling of a mortgage, security
interest, assignment or other lien or charge upon the Mortgaged
Premises, or any part thereof, in order fully to preserve and protect
the rights of Mortgagee hereunder and, without limiting the foregoing,
Mortgagor will pay or reimburse Mortgagee and any Secured Creditor for
the payment of any and all taxes, fees or other charges incurred in
connection with any such recordation or rerecordation, including any
documentary stamp tax or tax imposed upon the privilege of having this
instrument or any instrument issued pursuant hereto recorded.
8. Insurance. Mortgagor will, at its expense, keep all
buildings, improvements, equipment and other property now or hereafter
constituting part of the Mortgaged Premises insured against loss or
damage by fire, lightning, windstorm, explosion and such other risks as
are usually included under extended coverage policies, or which are
usually insured against by companies similarly situated conducting
similar businesses and owning like properties, in amount sufficient to
prevent Mortgagor, Mortgagee or the Secured Creditors from becoming a
co-insurer of any partial loss under applicable policies and in any
event not less than the then full insurable value (actual replacement
value without deduction for physical depreciation) thereof, as
determined at the request of Mortgagee and at Mortgagor's expense by
the insurer or insurers or by an expert approved by Mortgagee, all
under insurance policies payable, in case of loss or
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damage, to Mortgagee (and if Mortgagee so requests, naming Mortgagee
and the Secured Creditors as additional insureds therein), such rights
to be evidenced by the usual standard non-contributory form of mortgage
clause to be attached to each policy. Mortgagor shall not carry
separate insurance concurrent in kind or form and contributing in the
event of loss, with any insurance required hereby. Mortgagor shall also
obtain and maintain public liability, property damage and workmen's
compensation insurance in each case in form and content satisfactory to
Mortgagee and in amounts as are customarily carried by owners of like
property and approved by Mortgagee. Mortgagor shall also obtain and
maintain such other insurance with respect to the Mortgaged Premises in
such amounts and against such insurable hazards as Mortgagee from time
to time may require, including, without limitation, boiler and
machinery insurance, insurance against flood risks for any improvements
located in a flood plain when and to the extent obtainable from the
United States Government or any agency thereof, and insurance against
loss of rent due to fire and risks now or hereafter embraced by
so-called "extended coverage". All insurance required hereby shall be
maintained with good and responsible insurance companies satisfactory
to Mortgagee and shall not provide for any deductible amount in excess
of $250,000 not approved in writing by Mortgagee, shall provide that
any losses shall be payable notwithstanding any act or negligence of
Mortgagor, shall provide that no cancellation thereof shall be
effective until at least thirty days after receipt by Mortgagor and
Mortgagee of written notice thereof, and shall be satisfactory to
Mortgagee in all other respects. Upon the execution of this Mortgage
and thereafter not less than 15 days prior to the expiration date of
any policy delivered pursuant to this instrument, Mortgagor will
deliver to Mortgagee certificates evidencing the policy or renewal
policy, as the case may be, required by this instrument, bearing
notations evidencing the payment of all premiums. In the event of
foreclosure, Mortgagor authorizes and empowers Mortgagee to effect
insurance upon the Mortgaged Premises in amounts aforesaid for a period
covering the time of redemption from foreclosure sale provided by law,
and if necessary therefor to cancel any or all existing insurance
policies.
9. Damage to or Destruction of Mortgaged Premises.
(a) Notice. In case of any material damage to or
destruction of the Mortgaged Premises or any part thereof,
Mortgagor shall promptly give written notice thereof to
Mortgagee, generally describing the nature and extent of such
damage or destruction.
(b) Restoration. In case of any damage to or
destruction of the Mortgaged Premises or any part thereof,
Mortgagor, whether or not the insurance proceeds, if any,
received on account of such damage or destruction shall be
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sufficient for the purpose, at Mortgagor's expense, will
promptly commence and complete (subject to unavoidable delays
occasioned by strikes, lockouts, acts of God, inability to
obtain labor or materials, governmental restrictions and
similar causes beyond the reasonable control of Mortgagor) the
restoration, replacement or rebuilding of the Mortgaged
Premises as nearly as possible to its value, condition and
character immediately prior to such damage or destruction,
provided that any part of the Mortgaged Premises so damaged or
destroyed need not be restored, replaced or rebuilt if (i)
prior to its damage or destruction, it had become
uneconomical, obsolete or worn out or (ii) it is not necessary
for or of importance to the proper conduct of the Mortgagor's
business in the ordinary course.
(c) Adjustment of Loss. Mortgagor hereby authorizes
Mortgagee, at Mortgagee's option, to adjust and compromise any
losses under any insurance afforded at any time after the
occurrence and during the continuation of any event of default
hereunder or any event which with the lapse of time, the
giving of notice, or both, would constitute an event of
default hereunder (herein, a "default"), but unless Mortgagee
elects to adjust the losses as aforesaid, said adjustment
and/or compromise shall be made by Mortgagor, subject to final
approval of Mortgagee (regardless of whether or not a default
or event of default hereunder shall have occurred) in the case
of losses exceeding $250,000.
(d) Application of Insurance Proceeds. Net insurance
proceeds (except in cases where (i) the amount payable in
respect of any one loss, when combined with amounts paid in
respect of all losses incurred during any calendar year, is
less than $250,000 and (ii) an event of default hereunder
shall not have occurred and be continuing, in which case the
amount payable in respect of such loss may be received by
Mortgagor and need not be applied toward the payment of the
amount owing on the indebtedness hereby secured or for the
restoration of the Mortgaged Premises damaged or destroyed)
received by Mortgagee under the provisions of this Mortgage or
any instruments supplemental hereto or thereto or under any
policy or policies of insurance covering the Mortgaged
Premises or any part thereof shall first be applied toward the
payment of the amount owing on the indebtedness hereby secured
in such order of application as Mortgagee may elect whether or
not the same may then be due or be otherwise adequately
secured; provided, however, that such proceeds shall be made
available for the restoration of the portion of the Mortgaged
Premises damaged or destroyed if written application for such
use is made within thirty (30) days of receipt of such
proceeds and the following conditions are satisfied: (i)
Mortgagor has in effect business interruption insurance
covering the income to be lost during the
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restoration period as a result of the damage or destruction to the
Mortgaged Premises or provides Mortgagee with other evidence
satisfactory to it that Mortgagor has cash resources sufficient to pay
its obligations during the restoration period; (ii) no event of
default, or event which, with the lapse of time, the giving of notice,
or both, would constitute an event of default hereunder, shall have
occurred or be continuing (and if such an event shall occur during
restoration Mortgagee may, at its election, apply any insurance
proceeds then remaining in its hands to the reduction of the
indebtedness evidenced by the Notes and the other indebtedness hereby
secured); (iii) Mortgagor shall have submitted to Mortgagee plans and
specifications for the restoration which shall be satisfactory to it;
(iv) Mortgagor shall submit to Mortgagee fixed price contracts with
good and responsible contractors and materialmen covering all work and
materials necessary to complete restoration and providing for a total
completion price not in excess of the amount of insurance proceeds
available for restoration, or, if a deficiency shall exist, Mortgagor
shall have deposited the amount of such deficiency with Mortgagee and
(v) Mortgagor shall have obtained a waiver of the right of subrogation
from any insurer under such policies of insurance who at that time
claims that no liability exists as to Mortgagor or the insured under
such policies. Any insurance proceeds to be released pursuant to the
foregoing provisions may at the option of Mortgagee be disbursed from
time to time as restoration progresses to pay for restoration work
completed and in place and such disbursements may at Mortgagee's option
be made directly to Mortgagor or to or through any contractor or
materialman to whom payment is due or to or through a construction
escrow to be maintained by a title insurer acceptable to Mortgagee.
Mortgagee may impose such further conditions upon the release of
insurance proceeds (including the receipt of title insurance) as are
customarily imposed by prudent construction lenders to insure the
completion of the restoration work free and clear of all liens or
claims for lien. All title insurance charges and other costs and
expenses paid to or for the account of Mortgagor in connection with the
release of such insurance proceeds shall constitute so much additional
indebtedness hereby secured to be payable upon demand with interest at
the Default Rate. Mortgagee may deduct any such costs and expenses from
insurance proceeds at any time standing in its hands. If Mortgagor
fails to request that insurance proceeds be applied to the restoration
of the improvements or if Mortgagor makes such a request but fails to
complete restoration within a reasonable time, Mortgagee shall have the
right, but not the duty, to restore or rebuild said Mortgaged Premises
or any part thereof for or on behalf of Mortgagor in lieu of applying
said proceeds to the indebtedness hereby secured and for such purpose
may do all necessary acts, including using funds deposited by Mortgagor
as aforesaid and advancing additional funds for the purpose of
restoration, all such
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additional funds to constitute part of the indebtedness
hereby secured payable upon demand with interest at the
Default Rate.
10. Eminent Domain. Mortgagor acknowledges that Condemnation
Awards have been assigned to Mortgagee, which awards Mortgagee is
hereby irrevocably authorized to collect and receive, and to give
appropriate receipts and acquittances therefor, and at Mortgagee's
option, to apply the same toward the payment of the amount owing on
account of the indebtedness hereby secured in such order of application
as Mortgagee may elect and whether or not the same may then be due and
payable or otherwise adequately secured; provided, however, that a
Condemnation Award in respect of any taking of a portion (but not all
or any material portion) of the Mortgaged Premises shall be made
available for the restoration of such Mortgaged Premises in the same
manner and subject to the same conditions as are imposed on the release
of insurance proceeds set forth in Section 9(d) hereof as if the
Mortgaged Premises so taken were destroyed and the Condemnation Award
for such taking was actually insurance proceeds in respect of the
Mortgaged Premises so deemed as having been destroyed. In the event
that any proceeds of a Condemnation Award shall be made available to
Mortgagor for restoring the Mortgaged Premises so taken, Mortgagor
hereby covenants to promptly commence and complete such restoration of
the Mortgaged Premises as nearly as possible to its value, condition
and character immediately prior to such taking. Mortgagor covenants and
agrees that Mortgagor will give Mortgagee immediate notice of the
actual or threatened commencement of any proceedings under condemnation
or eminent domain affecting all or any material part of the Mortgaged
Premises including any easement therein or appurtenance thereof or
severance and consequential damage and change in grade of streets, and
will deliver to Mortgagee copies of any and all papers served in
connection with any such proceedings. Mortgagor further covenants and
agrees to make, execute and deliver to Mortgagee, at any time or times
upon request, free, clear and discharged of any encumbrances of any
kind whatsoever, any and all further assignments and/or instruments
deemed necessary by Mortgagee for the purpose of validly and
sufficiently assigning all awards and other compensation heretofore and
hereafter to be made to Mortgagor for any taking, either permanent or
temporary, under any such proceeding.
11. Construction, Repair, Waste, Etc. Mortgagor agrees that
no building or other improvement on the Mortgaged Premises and
constituting a part thereof shall be materially altered, removed or
demolished nor shall any material fixtures or appliances on, in or
about said buildings or improvements be severed, removed, sold or
mortgaged, without the consent of Mortgagee, and in the event of the
demolition or destruction in whole or in part of any of the fixtures or
articles of personal property covered hereby, Mortgagor covenants that
the same will be replaced promptly by similar fixtures and
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articles of personal property at least equal in quality and
condition to those replaced, free from any security interest
in or encumbrance thereon or reservation of title thereto
other than liens permitted by the Credit Agreement and the
Permitted Exceptions; provided, however, that Mortgagor may
alter, remove or demolish any such building, improvement,
fixture or appliance, and need not replace any such fixtures
or personal property, in each case to the extent such action
(i) is desirable to the proper conduct of the business of
Mortgagor in the ordinary course as presently conducted and
otherwise in the best interest of Mortgagor, (ii) does not
impair the overall value or utility of the Mortgaged Premises
and Mortgagor's other related properties as an integrated
facility, (iii) does not decrease the efficiency or capacity
of the Mortgaged Premises and (iv) does not impair the rights
and benefits under this Mortgage of the Secured Creditors.
Mortgagor further agrees to permit, commit or suffer no
material waste, impairment or deterioration of the Mortgaged
Premises or any part thereof; to keep and maintain said
Mortgaged Premises and every part thereof in good working
condition (ordinary wear and tear excepted); to effect such
repairs as Mortgagee may reasonably require and from time to
time to make all needful and proper replacements and
additions so that said buildings, fixtures, machinery and
appurtenances will, at all times, be in good working
condition (ordinary wear and tear excepted), fit and proper
for the respective purposes for which they were originally
erected or installed; to comply with all statutes, orders,
requirements or decrees relating to the Mortgaged Premises by
any federal, state or municipal authority if the failure to
comply with such statutes, orders, requirements or decrees
could have a material adverse effect on the Mortgaged
Premises or the business or financial condition of the
Mortgagor; to observe and comply with all conditions and
requirements necessary to preserve and extend any and all
rights, licenses, permits (including, but not limited to,
zoning variances, special exceptions and non-conforming
uses), privileges, franchises and concessions which are
applicable to the Mortgaged Premises or which have been
granted to or contracted for by Mortgagor in connection with
any existing or presently contemplated use of the Mortgaged
Premises or any part thereof and not to initiate or acquiesce
in any changes to or terminations of any of the foregoing or
of zoning classifications affecting the use to which the
Mortgaged Premises or any part thereof may be put without the
prior written consent of Mortgagee; and to make no material
alterations in or improvements or additions to the Mortgaged
Premises except as required by governmental authority or as
permitted by Mortgagee. Mortgagor will not lease the
Mortgaged Premises or any material part thereof without the
prior written consent of Mortgagee, which consent shall not
be unreasonably withheld.
12. Liens and Encumbrances. Mortgagor will not, without the
prior written consent of Mortgagee, directly or indirectly, create or
suffer to be created or to remain and will discharge or promptly cause
to be discharged any mortgage, lien, encumbrance or charge on, pledge
of, or conditional sale or other title retention agreement with respect
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to, the Mortgaged Premises or any part thereof, whether superior or
subordinate to the lien hereof, except for this instrument, liens
permitted by the Credit Agreement and the Permitted Exceptions.
13. Right of Mortgagee to Perform Mortgagor's Covenants, Etc.
If Mortgagor shall fail to make any payment or perform any act required
to be made or performed hereunder, Mortgagee, without waiving or
releasing any obligation or default, may (but shall be under no
obligation to) at any time after notice to the Mortgagor make such
payment or perform such act for the account and at the expense of
Mortgagor, and may enter upon the Mortgaged Premises or any part
thereof for such purpose and take all such action thereon as, in the
opinion of Mortgagee, may be reasonably necessary or appropriate
therefor. All sums so paid by Mortgagee and all reasonable costs and
expenses (including without limitation attorney's fees and expenses) so
incurred, together with interest thereon from the date of payment or
incurrence at the Default Rate, shall constitute so much additional
indebtedness hereby secured and shall be paid by Mortgagor to Mortgagee
on demand. Mortgagee in making any payment authorized under this
Section relating to taxes or assessments may do so according to any
xxxx, statement or estimate procured from the appropriate public office
without inquiry into the accuracy of such xxxx, statement or estimate
or into the validity of any tax assessment, sale, forfeiture, tax lien
or title or claim thereof.
14. After-Acquired Property. Any and all property hereafter
acquired which is of the kind or nature herein provided, or intended to
be and become subject to the lien hereof, shall ipso facto, and without
any further conveyance, assignment or act on the part of Mortgagor,
become and be subject to the lien of this Mortgage as fully and
completely as though specifically described herein; but nevertheless
Mortgagor shall from time to time, if requested by Mortgagee, execute
and deliver any and all such further assurances, conveyances and
assignments as Mortgagee may reasonably require for the purpose of
expressly and specifically subjecting to the lien of this Mortgage all
such property.
15. Inspection by Mortgagee. Mortgagee, any Secured Creditor
and their respective representatives shall have the right to inspect
the Mortgaged Premises at all reasonable times, and access thereto
shall be permitted for that purpose; provided, however, that prior to
the occurrence of any Default or Event of Default hereunder, any such
access or inspection shall only be required during the Mortgagor's
normal business hours and shall only be permitted with at least 24
hours advance notice.
16. Reports on Mortgaged Premises. Mortgagor will furnish to
Mortgagee or any Secured Creditor such information and data with
respect to the Mortgaged Premises as Mortgagee or such Secured Creditor
may reasonably request.
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17. Subrogation. Mortgagor acknowledges and agrees that
Mortgagee shall be subrogated to any lien discharged out of the
proceeds of the loan evidenced by any Note or out of any advance by
Mortgagee hereunder, irrespective of whether or not any such lien may
have been released of record.
18. Events of Default. Any one or more of the following shall
constitute an event of default hereunder:
(a) Failure to pay when due any indebtedness hereby
secured; or
(b) Any event occurs or condition exists which is
specified as an Event of Default under the Credit Agreement;
or
(c) The Mortgaged Premises or any material part thereof
shall be sold, transferred, or conveyed, whether voluntarily
or involuntarily, by operation of law or otherwise, except
for sales of obsolete, worn out or unusable fixtures or
personal property which are concurrently replaced (unless the
Mortgagor, in the exercise of its commercially reasonable
judgment deems such replacement not necessary or impractical
and such failure to replace would cause no material adverse
change in the Mortgaged Premises) with similar fixtures or
personal property at least equal in quality and condition to
those sold and owned by Mortgagor free of any lien, charge or
encumbrance other than the lien hereof; or
(d) Any indebtedness secured by a lien or charge on the
Mortgaged Premises or any part thereof is not paid when due
after the expiration of applicable grace periods and the
giving of applicable notices, if any (unless such
indebtedness is being contested in good faith by appropriate
proceedings which prevent the enforcement of the matter under
contest and adequate reserves have been established
therefor), or proceedings are commenced to foreclose or
otherwise realize upon any such lien or charge or to have a
receiver appointed for the property subject thereto or to
place the holder of such indebtedness or its representative
in possession thereof; or
(e) The Mortgaged Premises is abandoned.
19. Remedies. When any event of default has happened and is
continuing (regardless of the pendency of any proceeding which has or
might have the effect of preventing Mortgagor from complying with the
terms of this instrument and of the adequacy of the security for the
Notes, Letters of Credit and the other indebtedness
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hereby secured) and in addition to such other rights as may be
available under applicable law, but subject at all times to any
mandatory legal requirements:
(a) Acceleration. As and to the extent expressly
permitted by the Credit Agreement, Mortgagee may, by written
notice to Mortgagor, declare the Notes and all unpaid
indebtedness hereby secured, including the reimbursement
obligations of the Mortgagor in connection with any Letters of
Credit, including any interest then accrued thereon, to be
forthwith due and payable, whereupon the same shall become and
be forthwith due and payable, without other notice or demand
of any kind.
(b) Uniform Commercial Code. Mortgagee shall, with
respect to any part of the Mortgaged Premises constituting
property of the type in respect of which realization on a lien
or security interest granted therein is governed by the
Uniform Commercial Code, have all the rights, options and
remedies of a secured party under the Uniform Commercial Code
of Illinois, including without limitation, the right to the
possession of any such property, or any part thereof, and the
right to enter without legal process any premises where any
such property may be found. Any requirement of said Code for
reasonable notification shall be met by mailing written notice
to Mortgagor at its address above set forth at least 10
Business Days prior to the sale or other event for which such
notice is required. The expenses of retaking, selling, and
otherwise disposing of said property, including reasonable
attorney's fees and legal expenses incurred in connection
therewith, shall constitute so much additional indebtedness
hereby secured and shall be payable upon demand with interest
at the Default Rate.
(c) Foreclosure. Mortgagee may proceed to protect
and enforce the rights of Mortgagee or Secured Creditors
hereunder (i) by any action at law, suit in equity or other
appropriate proceedings, whether for the specific performance
of any agreement contained herein, or for an injunction
against the violation of any of the terms hereof, or in aid of
the exercise of any power granted hereby or by law, or (ii) by
the foreclosure of this Mortgage. Without limiting anything to
the contrary contained herein, to the extent permitted by
applicable law, Mortgagee in Mortgagee's sole discretion, may
elect to foreclose this Mortgage by means of non-judicial
foreclosure as permitted by Chapter 655A of the Code of Iowa.
By its execution hereof, Mortgagor hereby agrees that if
Mortgagor's waiver of redemption rights in Section 20 hereof
shall have no force and effect and if the real estate
described in Granting Clause I hereof is ten acres or less in
size, then the period of redemption after sale on any
foreclosure of this Mortgage shall be reduced to six months,
provided the Mortgagee waives in such
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foreclosure action any rights to a deficiency judgment against
the Mortgagor which might arise out of such foreclosure
proceedings, all to be consistent with the provisions of
Chapter 628 of the Code of Iowa. It is further hereby agreed
that if Mortgagee's waiver of redemption rights in Section 20
hereof shall have no force and effect and if the real estate
described in Granting Clause I hereof is ten acres or more in
size, then the period of redemption after sale on any
foreclosure of this Mortgage shall be reduced to sixty days
provided (i) the court with jurisdiction over such a
foreclosure action finds affirmatively in a decree of
foreclosure that said real estate has been abandoned by the
owners and those persons personally liable under the Mortgage
at the time of such foreclosure, and (ii) the Mortgagee waives
any rights to a deficiency judgment against the Mortgagor or
his successors in interest in the foreclosure action, all to
be consisted with the provisions of Chapter 628 of the Code of
Iowa. Nothing contained herein shall obligate Mortgagee to so
waive its rights to such a deficiency judgment in either case,
and the decision to do so shall be solely at the discretion of
Mortgagee. By its execution hereof, Mortgagor further hereby
agrees that, notwithstanding anything to the contrary
contained herein, Mortgagee may, at Mortgagee's sole
discretion, elect to foreclose upon the Mortgaged Premises
without redemption pursuant to the provisions of Section
654.20 of the Code of Iowa and may elect, at Mortgagee's sole
discretion, to so foreclose with or without a waiver of its
rights to a deficiency judgment.
(d) Appointment of Receiver. Mortgagee shall, as a
matter of right, without notice and without giving bond to
Mortgagor or anyone claiming by, under or through it, and
without regard to the solvency or insolvency of Mortgagor or
the then value of the Mortgaged Premises, be entitled to have
a receiver appointed of all or any part of the Mortgaged
Premises and the rents, issues and profits thereof, with such
power as the court making such appointment shall confer, and
Mortgagor hereby consents to the appointment of such receiver
and shall not oppose any such appointment. Any such receiver
may, to the extent permitted under applicable law, without
notice, enter upon and take possession of the Mortgaged
Premises or any part thereof by force, summary proceedings,
ejectment or otherwise, and may remove Mortgagor or other
persons and any and all property therefrom, and may hold,
operate and manage the same and receive all earnings, income,
rents, issues and proceeds accruing with respect thereto or
any part thereof, whether during the pendency of any
foreclosure or until any right of redemption shall expire or
otherwise.
(e) Taking Possession, Collecting Rents, Etc.
Mortgagee may enter and take possession of the Mortgaged
Premises or any part thereof and manage,
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operate, insure, repair and improve the same and take any
action which, in Mortgagee's reasonable judgment, is necessary
or proper to conserve the value of the Mortgaged Premises.
Mortgagee may also take possession of, and for these purposes
use, any and all personal property contained in the Mortgaged
Premises and used in the operation, rental or leasing thereof
or any part thereof. Mortgagee shall be entitled to collect
and receive all earnings, revenues, rents, issues and profits
of the Mortgaged Premises or any part thereof (and for such
purpose Mortgagor does hereby irrevocably constitute and
appoint Mortgagee its true and lawful attorney-in-fact for it
and in its name, place and stead to receive, collect and
receipt for all of the foregoing, Mortgagor irrevocably
acknowledging that any payment made to Mortgagee hereunder
shall be a good receipt and acquittance against Mortgagor to
the extent so made) and to apply same to the reduction of the
indebtedness hereby secured. The right to enter and take
possession of the Mortgaged Premises and use any personal
property therein, to manage, operate and conserve the same,
and to collect the rents, issues and profits thereof, shall be
in addition to all other rights or remedies of Mortgagee
hereunder or afforded by law, and may be exercised
concurrently therewith or independently thereof. The
reasonable expenses (including any receiver's fees, counsel
fees, costs and agent's compensation) incurred pursuant to the
powers herein contained shall be so much additional
indebtedness hereby secured which Mortgagor promises to pay
upon demand together with interest at the Default Rate.
Mortgagee shall not be liable to account to Mortgagor for any
action taken pursuant hereto other than to account for any
rents actually received by Mortgagee. Without taking
possession of the Mortgaged Premises, Mortgagee may, in the
event the Mortgaged Premises becomes vacant or is abandoned,
take such steps as it deems appropriate to protect and secure
the Mortgaged Premises (including hiring watchmen therefor)
and all reasonable costs incurred in so doing shall constitute
so much additional indebtedness hereby secured payable upon
demand with interest thereon at the Default Rate.
20. Waiver of Right to Redeem From Sale - Waiver of
Appraisement, Valuation, Etc. Mortgagor shall not and will not apply
for or avail itself of any appraisement, valuation, stay, extension or
exemption laws, or any so-called "Moratorium Laws", now existing or
hereafter enacted in order to prevent or hinder the enforcement or
foreclosure of this Mortgage, but hereby waives the benefit of such
laws. Mortgagor for itself and all who may claim through or under it
waives any and all right to have the property and estates comprising
the Mortgaged Premises marshalled upon any foreclosure of the lien
hereof and agrees that any court having jurisdiction to foreclose such
lien may order the Mortgaged Premises
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sold as an entirety. In the event of any sale made under or by virtue
of this instrument, the whole of the Mortgaged Premises may be sold in
one parcel as an entirety or in separate lots or parcels at the same or
different times, all as the Mortgagee may determine. Mortgagee or any
Secured Creditor shall have the right to become the purchaser at any
sale made under or by virtue of this instrument; and Mortgagee or any
Secured Creditor so purchasing at any such sale shall have the right to
be credited upon the amount of the bid made therefor by Mortgagee or
such Secured Creditor with the amount payable to Mortgagee or such
Secured Creditor, as the case may be, out of the net proceeds of such
sale, and upon compliance with the terms of sale, may hold, retain and
possess and dispose of such property in its own absolute right without
further accountability. In the event of any such sale, the Notes, the
Reimbursement Obligations and the other indebtedness hereby secured, if
not previously due, shall be and become immediately due and payable
without demand or notice of any kind. Mortgagor hereby waives any and
all rights of redemption prior to or from sale under any order or
decree of foreclosure pursuant to rights herein granted, on behalf of
Mortgagor, and each and every person acquiring any interest in, or
title to the Mortgaged Premises described herein subsequent to the date
of this Mortgage, and on behalf of all other persons to the extent
permitted by applicable law.
21. Costs and Expenses of Foreclosure. In any suit to
foreclose the lien hereof there shall be allowed and included as
additional indebtedness in the decree for sale all reasonable
expenditures and expenses which may be paid or incurred by or on behalf
of Mortgagee or any Secured Creditor for attorney's fees, appraiser's
fees, outlays for documentary and expert evidence, stenographic
charges, publication costs and costs (which may be estimated as to
items to be expended after the entry of the decree) of procuring all
such abstracts of title, title searches and examination, guarantee
policies, Torrens certificates and similar data and assurances with
respect to title as Mortgagee or any Secured Creditor may deem to be
reasonably necessary either to prosecute any foreclosure action or to
evidence to the bidder at any sale pursuant thereto the true condition
of the title to or the value of the Mortgaged Premises, all of which
expenditures shall become so much additional indebtedness hereby
secured which Mortgagor agrees to pay and all of such shall be
immediately due and payable with interest thereon from the date of
expenditure until paid at the Default Rate.
22. Application of Proceeds. The proceeds and avails of the
Mortgaged Premises, including without limitation the proceeds of any
foreclosure sale of the Mortgaged Premises or of any sale of property
pursuant to Section l9(b) hereof, shall, when received by Mortgagee in
cash or its equivalent, be applied by the Mortgagee as set forth in
Section 3.5 of the Credit Agreement. Mortgagor shall remain liable to
Mortgagee and the Secured Creditors for any deficiency. Any surplus
remaining after the full payment and satisfaction of the foregoing
shall be returned to Mortgagor or to whomsoever a court of competent
jurisdiction shall determine to be entitled thereto.
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23. Deficiency Decree. If at any foreclosure proceeding the
Mortgaged Premises shall be sold for a sum less than the total amount
of indebtedness for which judgment is therein given, the judgment
creditor shall be entitled to the entry of a deficiency decree against
Mortgagor and against the property of Mortgagor for the amount of such
deficiency; and Mortgagor does hereby irrevocably consent to the
appointment of a receiver for the Mortgaged Premises and the property
of Mortgagor and of the rents, issues and profits thereof after such
sale and until such deficiency decree is satisfied in full.
24. Mortgagee's Remedies Cumulative - No Waiver. No remedy or
right of Mortgagee shall be exclusive of but shall be cumulative and in
addition to every other remedy or right now or hereafter existing at
law or in equity or by statute or otherwise. No delay in the exercise
or omission to exercise any remedy or right accruing on any default
shall impair any such remedy or right or be construed to be a waiver of
any such default or acquiescence therein, nor shall it affect any
subsequent default of the same or a different nature. Every such remedy
or right may be exercised concurrently or independently, and when and
as often as may be deemed expedient by Mortgagee.
25. Mortgagee Party to Suits. Mortgagee shall have the power
and authority (but not the duty) to institute and maintain any suits
and proceedings as Mortgagee may deem advisable (a) to prevent any
impairment of the Mortgaged Premises by any acts which may be unlawful
or which violate the terms of this Mortgage, (b) to preserve or protect
its interest in the Mortgaged Premises or (c) to restrain the
enforcement of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment, rule
or order might impair the security hereunder or be prejudicial to
Mortgagee's or Secured Creditor's interest. If Mortgagee or any Secured
Creditor shall be made a party to or shall intervene in any action or
proceeding affecting the Mortgaged Premises or the title thereto or the
interest of Mortgagee or any Secured Creditor under this Mortgage
(including probate and bankruptcy proceedings), or if Mortgagee or any
Secured Creditor employs an attorney to collect any or all of the
indebtedness hereby secured or to enforce any of the terms hereof or
realize hereupon or to protect the lien hereof, or if Mortgagee or any
Secured Creditor shall incur any costs or expenses in preparation for
the commencement of any foreclosure proceedings or for the defense of
any threatened suit or proceeding which might affect the Mortgaged
Premises or the security hereof, whether or not any such foreclosure or
other suit or proceeding shall be actually commenced, then in any such
case, Mortgagor agrees to pay to Mortgagee or such Secured Creditor, as
the case may be, immediately and without demand, all reasonable costs,
charges, expenses and attorney's fees incurred by Mortgagee or such
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Secured Creditor in any such case, and the same shall constitute so
much additional indebtedness hereby secured payable upon demand with
interest at the Default Rate.
26. Modifications Not to Affect Lien. Mortgagee, without
notice to anyone (except the Secured Lenders), and without regard to
the consideration, if any, paid therefor, or the presence of other
liens on the Mortgaged Premises, may at the direction of the Secured
Lenders release any part of the Mortgaged Premises or any person liable
for any of the indebtedness hereby secured, may extend the time of
payment of any of the indebtedness hereby secured and may grant waivers
or other indulgences with respect hereto and thereto, and may agree
with Mortgagor to modifications to the terms and conditions contained
herein or otherwise applicable to any of the indebtedness hereby
secured (including modifications in the rates of interest applicable
thereto), without in any way affecting or impairing the liability of
any party liable upon any of the indebtedness hereby secured or the
priority of the lien of this Mortgage upon all of the Mortgaged
Premises not expressly released, and any party acquiring any direct or
indirect interest in the Mortgaged Premises shall take same subject to
all of the provisions hereof.
27. Revolving Credit Loan. This Mortgage is given to secure,
among other things, a revolving credit loan and shall secure not only
presently existing indebtedness under the Credit Agreement but also
future advances, or otherwise, as are made within twenty (20) years
from the date hereof, to the same extent as if such future advances
were made on the date of the execution of this Mortgage, although there
may be no advance made at the time of execution of this Mortgage and
although there may be no indebtedness hereby secured outstanding at the
time any advance is made. The lien of this Mortgage shall be valid as
to all indebtedness hereby secured, including future advances, from the
time of its filing for record in the recorder's or registrar's office
of the county in which the Mortgaged Premises are located. The total
amount of indebtedness hereby secured may increase or decrease from
time to time, but the total unpaid balance of indebtedness hereby
secured (including disbursements which Mortgagee may make under this
Mortgage, the Credit Agreement or any other documents related thereto)
at any one time outstanding shall not exceed a maximum principal amount
of One Hundred Million Dollars ($100,000,000) plus interest thereon and
any disbursements made for payment of taxes, special assessments or
insurance on the Mortgaged Premises and interest on such disbursements
(all such indebtedness being hereinafter referred to as the "maximum
amount secured hereby"). This Mortgage shall be valid and have priority
over all subsequent liens and encumbrances, including statutory liens,
excepting solely taxes and assessments levied on the Mortgaged
Premises, to the extent of the maximum amount secured hereby.
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28. Notices. All communications provided for herein shall be
in writing (including cable, telecopy or telex) and shall be given to
the relevant party at its address, telecopier number or telex number
set forth below, in the case of the Mortgagor or the Mortgagee, or on
the signature pages of the Credit Agreement, in the case of the
Lenders, or such other address, telecopier number or telex number as
such party may hereafter specify by notice to the Mortgagor and the
Mortgagee given by United States certified or registered mail, by
telecopy or by other telecommunication device capable of creating a
written record of such notice and its receipt:
Xxxxxx Metalcraft Co.
0000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Each such notice, request or other communication shall be effective (i)
if given by telecopier, when such telecopy is transmitted to the
telecopier number specified herein and a confirmation of such telecopy
has been received by the sender, (ii) if given by telex, when such
telex is transmitted to the telex number specified herein and the
answer back is received by sender, (iii) if given by mail, five (5)
days after such communication is deposited in the mail, certified or
registered with return receipt requested, addressed as aforesaid or
(iv) if given by any other means, when delivered at the addresses
specified herein.
29. Compliance with Environmental Laws. Mortgagor represents
and warrants that, to the best of Mortgagor's knowledge, except as
heretofore disclosed in writing to the Mortgagee, the Mortgaged
Premises complies in all material respects with all applicable federal,
state, regional, county or local laws, statutes, rules, regulations or
ordinances (collectively, "Environmental Laws"), including, but not
limited to, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. SS.9601 et seq., the Resource
Conservation and Recovery Act of 1976, as amended by the
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Solid and Hazardous Waste Amendments of 1984, 42 U.S.C. SS.6901 et
seq., the Federal Water Pollution Control Act, as amended by the Clean
Water Act of 1977, 33 U.S.C. SS.1251 et seq., the Toxic Substances
Control Act of 1976, 15 U.S.C. SS.2601 et seq., the Emergency Planning
and Community Right-to-Know Act of 1986, 00 X.X.X. XX.00000 et seq.,
the Clean Air Act of 1966, as amended, 42 U.S.C. SS.7401 et seq., the
National Environmental Policy Act of 1975, 42 U.S.C. SS.4321, the
Rivers and Harbours Act of 1899, 33 U.S.C. SS.401 et seq., the
Occupational Safety and Health Act of 1970, 29 U.S.C. SS.651 et seq.,
and the Safe Drinking Water Act of 1974, as amended, 42 U.S.C.
SS.300(F) et seq., and all rules, regulations and guidance documents
promulgated or published thereunder, and any state, regional, county or
local statute, law, rule, regulation or ordinance relating to public
health, safety or the environment, including, without limitation,
relating to releases, discharges, emissions or disposals to air, water,
land or groundwater, to the withdrawal or use of groundwater, to the
use, handling or disposal of polychlorinated biphenyls (PCBs), asbestos
or urea formaldehyde, to the treatment, storage, disposal or management
of hazardous substances (including, without limitation, petroleum, its
derivatives or by-products, or other hydrocarbons), to exposure to
toxic, hazardous, or other controlled, prohibited or regulated
substances, to the transportation, storage, disposal, management or
release of gaseous or liquid substances, and any regulation, order,
injunction, judgment, declaration, notice or demand issued thereunder.
30. Condition of Property. Mortgagor warrants and represents
that, to the best of its knowledge, except as heretofore disclosed in
writing to the Mortgagee, the Mortgaged Premises, including all
personal property, is free from contamination, that there has not been
thereon a release, discharge or emission, or threat of release,
discharge or emission, of any hazardous substance, gas or liquid
(including, without limitation, petroleum, its derivatives or
by-products, or other hydrocarbons), or any other substance, gas or
liquid, which is prohibited, controlled or regulated under applicable
law, or which poses a threat or nuisance to safety, health or the
environment, and that the Mortgaged Premises does not contain, or is
not affected by, except to the extent not in violation of Environmental
Laws: (i) asbestos, (ii) urea formaldehyde foam insulation, (iii)
polychlorinated biphenyls (PCBs), (iv) underground storage tanks, (v)
landfills, land disposals or dumps.
31. Notice of Environmental Problem. Except as heretofore
disclosed in writing to the Mortgagee, Mortgagor represents and
warrants that to the best of its knowledge it has not given, nor should
it give, nor has it received, any notice, letter, citation, order,
warning, complaint, inquiry, claim or demand that: (i) Mortgagor has
violated, or is about to violate, any federal, state, regional, county
or local environmental, health or safety statute, law, rule,
regulation, ordinance, judgment or order on the Mortgaged Premises;
(ii) there has been a release, or there is threat of release, of
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hazardous substances (including, without limitation, petroleum, its
by-products or derivatives, or other hydrocarbons) from the Mortgaged
Premises; (iii) Mortgagor may be or is liable, in whole or in part, for
the costs or cleaning up, remediating or responding to a release of
hazardous substances (including, without limitation, petroleum, its
by-products or derivatives, or other hydrocarbons) on the Mortgaged
Premises; (iv) any of the Mortgagor's property or assets are subject to
a lien in favor of any governmental body for any liability, costs or
damages, under federal, state or local environmental law, rule or
regulation arising from or costs incurred by such governmental entity
in response to a release of a hazardous substance (including, without
limitation, petroleum, its by-products or derivatives, or other
hydrocarbons). In the event that Mortgagor receives any notice of the
type described in this Section, Mortgagor shall promptly provide a copy
to Mortgagee, and in no event, later than fifteen (15) days from
Mortgagor's receipt or submission thereof.
32. Use of Property and Facilities. Mortgagor represents and
warrants that to the best of its knowledge, except as heretofore
disclosed in writing to the Mortgagee, it has never in the past engaged
in, and agrees that in the future it shall not conduct, any business,
operations or activity on the Mortgaged Premises, or employ or use the
personal property or facilities, to manufacture, use, generate, treat,
store, transport or dispose of any hazardous substance (including,
without limitation, petroleum, its derivatives or by-products, or other
hydrocarbons), or any other substance which is prohibited, controlled
or regulated under applicable law, or which poses a threat or nuisance
to safety, health or the environment, including, without limitation,
any business, operation or activity which would cause Mortgagor, its
property or facilities, to be in violation of the Resource Conservation
and Recovery Act of 1976, as amended by the Solid and Hazardous Waste
Amendments of 1984, 42 U.S.C. SS.6901 et seq., the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986, 42
U.S.C. SS.9601 et seq., the Clean Air Act of 1966, as amended, 42
U.S.C. SS.7401 et seq., or any similar state, county, regional or local
statute, law, regulation, rule or ordinance, including, without
limitation, any state statute providing for financial responsibility
for cleanup for the release or threatened release of substances
provided for thereunder. The provisions of this Section shall apply to
all real and personal property, without limitation, owned or controlled
by Mortgagor or its subsidiaries.
33. Partial Invalidity. All rights, powers and remedies
provided herein are intended to be limited to the extent necessary so
that they will not render this Mortgage invalid, unenforceable or not
entitled to be recorded, registered or filed under any applicable law.
If any term of this Mortgage shall be held to be invalid, illegal or
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unenforceable, the validity and enforceability of the other terms of
this Mortgage shall in no way be affected thereby.
34. Agent. Mortgagee has been appointed as agent pursuant to
the Credit Agreement. In acting under or by virtue of this Mortgage,
Mortgagee shall be entitled to all the rights, authority, privileges
and immunities provided in Section 10 of the Credit Agreement, all of
which provisions of said Section 10 are incorporated by reference
herein with the same force and effect as if set forth herein. Mortgagee
hereby disclaims any representation or warranty to Secured Creditors
concerning the perfection of the security interest granted hereunder or
the value of the Mortgaged Premises.
35. Restrictions on Secured Creditors' Right to Enforce. No
Secured Creditor shall have the right to institute any suit, action or
proceeding in equity or at law for the foreclosure of this Mortgage or
for the execution of any trust or power hereof or for the appointment
of a receiver, or for the enforcement of any other remedy under or upon
this Mortgage; it being understood and intended that no one or more of
the Secured Creditors shall have any right in any manner whatsoever to
affect, disturb or prejudice the lien of this Mortgage by its or their
action or to enforce any right hereunder, and that all proceedings at
law or in equity shall be instituted, had and maintained by the
Mortgagee in the manner herein provided and for the ratable benefit of
the Secured Creditors.
36. Successors and Assigns. Whenever any of the parties
hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all the covenants, promises
and agreements in this Mortgage contained by or on behalf of Mortgagor,
or by or on behalf of Mortgagee or Secured Creditors, shall bind and
inure to the benefit of the respective successors and assigns of such
parties, whether so expressed or not. Without limiting the generality
of the foregoing, and subject to the provisions of Sections 12.14 and
12.15 of the Credit Agreement, any Lender may assign or otherwise
transfer any indebtedness held by it secured by this Mortgage to any
other person or entity, and such other person or entity shall thereupon
become vested with all the benefits in respect thereof granted to such
Lender herein or otherwise, subject, however, to the provisions of the
Credit Agreement.
37. Default Rate. For purposes of this Mortgage, "Default
Rate" shall mean the rate per annum as set forth in Section 2.1 of the
Credit Agreement.
38. Liens Absolute, Etc. Mortgagor acknowledges and agrees
that the lien and security interest hereby created and provided for are
absolute and unconditional and shall not in any manner be affected or
impaired by any acts or omissions whatsoever of Mortgagee or any other
holder of any of the indebtedness hereby secured, and without
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limiting the generality of the foregoing, the lien and security hereof
shall not be impaired by any acceptance by Mortgagee or any other
holder of any of the indebtedness hereby secured of any other security
for or guarantors upon any of the indebtedness hereby secured or by any
failure, neglect or omission on the part of Mortgagee or any other
holder of any of the indebtedness hereby secured to realize upon or
protect any of the indebtedness hereby secured or any collateral or
security therefor. The lien and security interest hereof shall not in
any manner be impaired or affected by (and Mortgagee, without notice to
anyone, is hereby authorized to make from time to time) any sale,
pledge, surrender, compromise, settlement, release, renewal, extension,
indulgence, alteration, substitution, exchange, change in, modification
or disposition of any of the indebtedness hereby secured, or of any
collateral or security therefor, or of any guaranty thereof, or of any
instrument or agreement setting forth the terms and conditions
pertaining to any of the foregoing. The Secured Creditors may at their
discretion at any time grant credit to the Borrower without notice to
Mortgagor in such amounts and on such terms as such Secured Creditors
may elect without in any manner impairing the lien and security
interest created and provided for herein. In order to realize hereon
and to exercise the rights granted Mortgagee hereby and under
applicable law, there shall be no obligation on the part of Mortgagee
or any other holder of any of the indebtedness hereby secured at any
time to first resort for payment to the Borrower or to any guaranty of
any of the indebtedness hereby secured or any portion thereof or to
resort to any other collateral, security, property, liens or any other
rights or remedies whatsoever, and Mortgagee shall have the right to
enforce this Mortgage irrespective of whether or not other proceedings
or steps seeking resort to or realization upon or from any of the
foregoing are pending.
39. Direct and Primary Security - No Subrogation. The lien
and security interest herein created and provided for stand as direct
and primary security for the Notes as well as for any of the other
indebtedness hereby secured. No application of any sums received by
Mortgagee in respect of the Mortgaged Premises or any disposition
thereof to the reduction of the indebtedness hereby secured or any part
thereof shall in any manner entitle Mortgagor to any right, title or
interest in or to the indebtedness hereby secured or any collateral or
security therefor, whether by subrogation or otherwise, unless and
until all indebtedness hereby secured has been fully paid and satisfied
and any commitment of the Secured Creditors to extend credit to
Mortgagor or to the Borrower shall have expired.
40. Multisite Real Estate Transaction. Mortgagor acknowledges
that this Mortgage is one of a number of other mortgages and deeds of
trusts and other security documents dated of even date herewith (such
mortgages, deeds of trust and other security documents dated of even
date herewith and any supplements or amendments thereto and
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any other mortgages, deeds of trust or security documents securing the
indebtedness hereby secured are collectively called the "Other
Mortgages") which secure the indebtedness hereby secured. Mortgagor
agrees that the lien of this Mortgage shall be absolute and
unconditional and shall not in any manner be affected or impaired by
any acts or omissions whatsoever of Mortgagee and, without limiting the
generality of the foregoing, the lien hereof shall not be impaired by
any acceptance by Mortgagee of any security for or guarantors upon any
of the indebtedness hereby secured, or by any failure, neglect or
omission on the part of the Mortgagee to realize upon or protect any of
the indebtedness hereby secured or any collateral security therefor
including the Other Mortgages. The lien hereof shall not in any manner
be impaired or affected by any release (except as to the property
released) sale, pledge, surrender, compromise, settlement, renewal,
extension, indulgence, alteration, changing, modification or
disposition of any of the indebtedness hereby secured or of any of the
collateral security therefor, including without limitation the Other
Mortgages or of any guarantee thereof, and Mortgagee may at its
discretion foreclose, exercise any power of sale, or exercise any other
remedy available to it under any or all of the Other Mortgages without
first exercising or enforcing any of its rights and remedies hereunder.
Such exercise of Mortgagee's rights and remedies under any or all of
the Other Mortgages shall not in any manner impair the indebtedness
hereby secured or the lien of this Mortgage and any exercise of the
rights or remedies of Mortgagee hereunder shall not impair the lien of
any of the Other Mortgages or any of Mortgagee's rights and remedies
thereunder. The undersigned specifically consents and agrees that
Mortgagee may exercise its rights and remedies hereunder and under the
Other Mortgages separately or concurrently and in any order that it may
deem appropriate.
41. Headings. The headings in this instrument are for
convenience of reference only and shall not limit or otherwise affect
the meaning of any provision hereof.
42. Changes, Etc. This instrument and the provisions hereof
may be changed, waived, discharged or terminated only by an instrument
in writing signed by the party against which enforcement of the change,
waiver, discharge or termination is sought.
43. Notice. This mortgage secures credit in the principal
amount of $90,000,000. Loans and advances up to this amount, together
with interest, are senior to indebtedness to other creditors under
subsequently recorded or filed mortgages and liens.
The $90,000,000 credit referred to in this Section 43
is the principal amount of such credit and this Mortgage also secures
all other indebtedness hereby secured in addition to that part of the
indebtedness hereby secured which represents the principal amount of
such credit.
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44. Governing Law. The creation of this Mortgage, the
perfection of the lien or security interest in the Mortgaged Premises,
and the rights and remedies of the Mortgagee with respect to the
Mortgaged Premises, as provided herein and by the laws of the state in
which the Mortgaged Premises is located, shall be governed by and
construed in accordance with the internal laws of the state in which
the Mortgaged Premises is located without regard to principles of
conflicts of law. OTHERWISE, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THE MORTGAGE, THE CREDIT AGREEMENT, THE NOTES, THE LETTERS OF CREDIT
AND ALL OTHER OBLIGATIONS OF MORTGAGOR SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
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IN WITNESS WHEREOF, Mortgagor has caused these presents to be signed
the day and year first above written.
XXXXXXX XXXXXX, INC.
By
Its___________________
__________
(Type or Print Name)
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STATE OF _______ )
) SS.
COUNTY OF ______ )
On this ___ day of _____________________, 1998, before me, the
undersigned, a Notary Public in and for the State of ___________________,
personally appeared __________________________________ to me personally known,
who being by me duly sworn did say that he is the _____________________________
of the corporation executing the within and foregoing instrument; that no seal
has been procured by the corporation; that the instrument was signed on behalf
of the corporation by authority of its Board of Directors; and that
_________________________ as officer acknowledged the execution of the foregoing
instrument to be the voluntary act and deed of the corporation, by it and by him
voluntarily executed.
______________________________________
Notary Public in and for the State of
____________
(Notary Seal)
Commission Expires:
__________________________________
